Nassau County NY police officials are reviewing videotape of the trampling death of a WalMart employee in Valley Stream, NY. Witnesses at the scene of Friday's death told police that the crowd seemed less concerned about the trampled man than their ability to get the discounted products in the store. While this speaks volumes about our society and its values, I'm not posting today about this. I'm wondering why the police would be reviewing the videotape of the trampling death. It seems to me that there is no criminal intent involved in the tragic death. Secondly, how could you possibly identify the person who actually caused the employee's death? By definition, a stampede involves a crowd of people. That would prove nearly impossible to identify who stepped on the stricken employee. However, the first point is the more valid one. Yes, we should all be outraged that someone lost their life in such a tragic fashion. However, tragedy doesn't mean that a crime occurred. This seems to me a matter for the civil law to mete out proper justice for the employee's family. Unless someone shows me more evidence, there was no crime commtted here.
November 2008 Archives
Most people like to sit back and relax Thanksgiving evening. The stress from preparing a large holiday meal coupled with guests in your home compels most people to take some time and just relax. When that is interrupted or tensions rise during holiday meals, criminal behavior is right around the corner.
That's what appears to have occurred to Annette Jenkins of Tampa. When her brother brought over an unexpected guest late Thanksgiving evening, Jenkins threatened to kill her with a machete. Now, whether the threat was an idle one is immaterial. Jenkins committed an assault by verbally threatening her and picking up a machete. In Florida, an assault occurs when someone threatens another person through word or deed with the ability to carry out the threat.
So, instead of enjoying a quiet night at home, Jenkins spent the night in the Hillsborough County Jail facing an assault charge. The charge will no doubt have lingering effects on future employment, job references, and living arrangements. Each of us needs to consider this before we say or do anything out of anger, pressure, tension, or holiday exhaustion. The consequences of not doing so can be life altering.
In a world where judges of criminal courts have increasingly less discretionary power over sentencing, the downward departure option is often the best course of action for a defendant to get a reduced sentence. While there are several requirements that must be met in order to obtain a downward departure, it is very often the best opportunity at a reduced sentence.
Downward departure is a two step process in which the court must first of all determine if there is a valid legal ground to warrant a departure such as the need for restitution outweighing the need for incarceration. Additionally, the legal ground provided must be supported by a preponderance of evidence. Some other factors that would supoort a downward departure include 1)the offender was a minor participant in the criminal conduct; 2)the offender's understanding and grasp of the gravity of what happened is impaired; 3)the relative youth of the offender.
Once this has been established, the court must decide if it should depart from the sentencing guidelines. This is where judicial discretion can play a role as well as the skill of the criminal trial attorney arguing for the downward departure. The attorney's role is crucial here because the judge's decision may depend upon the skill of the attorney and the quality of his/her argument before the court. Human factors such as remorse, willing to make restitution, and past history also play a role in determining how a particular judge may rule.
If you're charged with a sexual crime in Florida, you'll need an experienced trial attorney to assist you. The law as well as society sides with the alleged victim. Sex crimes are considered the worst of the worst.
In order to defend someone charged with a sex crime, factual details are key. A thorough investigation of the circumstances surrounding the charge is critical. Any contradictions, problems, or doubts that can be raised in the sex history is helpful. In conjunction with an aggressive factual investigation, legal procedure is also key to the case. The Constitution guarantees the accused of certain inviolable rights and guarantees that are not susceptible to the emotions of the individual case.
In any case, a good trial lawyer is key to the administration of justice.
A young man gave police consent to search his home and he's now been arrested for cultivation of marijuana and possession of paraphernalia. In addition, police found a .22-caliber rifle, .32-caliber pistol and 9mm pistol. The marijuana cultivation charge stems from the police finding 13 marijuana plants in the home.
This case demonstrates the importance of knowing your constitutional rights as well as the law BEFORE any confrontation with the police. The guy was most likely intimidated by the police and felt he had no choice but to consent to the police search. In reality, the police had no right to search the house without probable cause supported by a search warrant signed by a judge. Apart from that, no one has to consent to a police search of a residence, vehicle, or person. A search without a warrant or probable cause is an illegal search and the charges can be dismissed. If you've found yourself in similar circumstances, call a criminal trial lawyer who knows your rights as well as the law.
I had an experience the other day that I wanted to share because I think it sheds light on what a criminal trial lawyer can do in a courtroom. I was in a Tampa Bay courtroom attending a pre-trial conference for a client. The client had been charged with misdemeanor possession of marijuana but had failed to submit to a drug test recently. The first words out of the judge's mouth were "I'm going to have you taken into custody." It looked like she was going to jail. This is a single mother who's already struggling to make ends meet. Admittedly, she has a drug problem. However, she's been attending AA and testified that she will submit to the required drug tests. As I explained the human side of this story to the judge, I sensed he was listening and willing to show some compassion. In the end, he didn't take her into custody. She'll have to submit to the drug tests and continue with her AA, but she remains free.
This is what a criminal trial lawyer can do for his clients. There are times when a judge can be swayed by a persuasive argument and extenuating circumstances. It's not only just about the law.
In Brooksville, criminal defense attorneys are preparing to defend 12 or so men accused of soliciting for prostitution. They were arrested in September. Their lawyers contend that police officers entrapped them. In any defense of prostitution or solicitation charges, the behavior of the undercover cop is paramount. In order to avoid the accusation of entrapment, the officer must not approach the potential suspect. In addition, the cop can't initiate or direct the conversation to criminal behavior. In the cases in Brooksville, these standards appear to have been broken. We'll see when the trials start tomorrow.
Howard Troxler, a columnist for the St. Pete Times, wrote an intriguing piece the other day. Troxler was commenting on the tragic circumstances surrounding the death of Heather Whalley who was struck by a car and killed. In the column, Troxler pinpoints the feelings of outrage felt when someone who has had 33 previous traffic citations is not charged with vehicular homicide. The answer lies not in the severity of the injury caused but the legal distinction between careless and reckless operation of a motor vehicle.
According to the law in Florida, vehicular homicide must meet the standard of reckless not careless driving. The law defines reckless as an intentional disregard for the safety of others. Vehicular homicide is a second degree felony that carries with it a maximum sentence of 15 years in prison. If the driver of the car had been charged with vehicular homicide, a good defense attorney would have argued that the charge is not correct and would have sought to reduce it to careless driving rather than homicide. Whether you like it or not, agree with it or not, that's the law in the State of Florida.
In Florida, the taking of someone else's belonging by force is known as robbery (as opposed to larceny, fraud, or theft). If the robbery is committed with the assistance of a weapon (firearm or other type of weapon considered to be deadly), it is armed robbery and is deemed a 1st degree felony. Other factors which the prosecutor will consider in determination of your particular charge is whether the victim of the robbery was injured. In any case, whether a weapon was used in the commission of a robbery, the crime is a felony, either of the 1st or 2nd degree.
The "10-20-Life" law may come into play in robbery cases. In crimes where a firearm is drawn by the offender, a mandatory sentence of 10 years in prison is the law. It's 20 years in prison if the gun is fired in the commission of a felony. If someone is injured or killed by the firearm it's 25 years to life in prison. These are tough sentences. If you're charged with a robbery, you need an experienced criminal trial lawyer.
In this post I will offer a synopsis of the criminal procedure process in Florida.
Stop-a law enforcement officer stops you in order to ask questions about potentially criminal behavior
Search Warrant-this authorizes police to search you, your vehicle, or your home. In order to obtain a search warrant probable cause must be shown. Two factors determine this:
- It is more likely than not that the specific items to be searched for are connected with criminal activities
- Those items will be found in the place to be searched
Arrest-in order to arrest, a police officer must have a reasonable belief that a crime was committed and that the person arrested committed the crime
Miranda-if you are in police custody, you must be informed of your Miranda Rights which are:
- The right to remain silent
- The right to have an attorney present during questioning
- The right to have an attorney appointed if you are unable to afford one
Miranda rights do not have to be read until you are taken into custody which means that during questioning anything and everything that is said can be used in a court of law.
Booking-once the arrest is made, you will be brought to the jail or detention facility where you will be photographed, fingerprinted and asked about name and age.
Right to an Attorney-if you can't afford an attorney, one will be appointed to you
Arraignment-once criminal charges are filed, you'll be brought to court (usually within 72 hours) to plea to the charges. You may plea the following:
- Guilty plea: If you plead "guilty," you're admitting to the facts of the crime and the fact that you were the one who committed that crime.
- Not guilty plea: A "not guilty" plea asserts that you did not commit the crime with which you were accused. After your plea, a pre-trial or trial date will be set.
- No contest plea: A "no contest" plea indicates that, while you are not admitting guilt, you do not dispute the charge. This is preferable to a guilty plea because guilty pleas can be used against you in later civil lawsuits.
- "Mute" plea: In Florida, you may "stand mute" instead of making a plea. The court will then enter a plea of not guilty. By standing mute, you avoid silently admitting to the correctness of the proceedings against you until that point. You are then free to attack all previous proceedings that may have been irregular.
A guilty plea or a plea of no contest will result in sentencing. During the arraignment process, bail will be set or it will be refused. A third option is to have you released on your own recognizance which means that the court believes that you will show up for court at a later date.
Bail/Bond-is money or other surety guaranteeing your appearance for later court proceedings.
Speedy trial-the Sixth Amendment to the US Constitution guarantees your right to a speedy trial. In Florida, this means,
- Speedy trial without demand: In most cases, a defendant will be brought to trial within 90 days of arrest if the crime is a misdemeanor, and within 175 days of arrest if the crime charged was a felony.
- Speedy trial with demand: With limited exceptions, every person charged with a crime has the right to demand a trial within 60 days. A felony is a crime usually punishable by imprisonment for more than one year. A misdemeanor, on the other hand, is usually punishable by a fine or a year or less of incarceration.
You may also waive your right to a speedy trial in order to prepare for the procedure.
Trial-in many cases, prosecutors and defense attorneys will negotiate a plea agreement wherein the defendant agrees to plea to a lesser charge or agree to sentencing arrangements. If no plea agreement is reached, your case will go to trial unless you changed your plea to guilty. In cases that involve a crime punishable by more than six months in prison, you have the right to a jury trial, in most instances. You may also request a bench trial where there is no jury and the judge will serve the functions usually relegated to a jury.
Appeal-in Florida you generally have 30 days in which to appeal a conviction. There are many reasons sufficient for an appeal including the following: inadmissible or insufficient evidence, and mistakes made in jury instructions. If you entered a guilty or no contest plea, you may also appeal the verdict under the following restricted guidelines: the court in question lacked the authority to judge in your case, your plea was involuntary, or there was some sort of sentencing error.
In my years as a Florida criminal trial attorney, I've found that many arrests are the result of an illegal search and seizure conducted by the police. In general, law enforcement officials need probable cause and/or a warrant signed by a judge to search a person's vehicle, home, or property. In the absence of a warrant, the police are supposed to be restricted from what they are able to search or seize. They may ask a person for their consent to search a vehicle or a home but this may be challenged later on the grounds that the consent was given under duress or forced by the police officer.
Anyone has a constitutionally guaranteed right to refuse such a search request. The Fourth Amendment of the US Constitution states, ""The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The Fourth Amendment is grounded in the right to privacy and the freedom from undue or unnecessary searches or seizures.
However, there are exceptions to this right. If you give your consent to a search, most courts will find the search "reasonable". Also, if police spot something, for instance, in your vehicle that is clearly illegal such as drugs, they have a reasonable right to conduct a search. Additionally, if the police have arrested a person, they have a legal right to search you and your immediate surroundings for contraband items.
As a general rule, the police do not have a right to search you. If you give them consent for a search you have abandoned your legal right against illegal searches and seizures. Furthermore, the law enforcement official is under no legal obligation to advise of your legal rights against a particular search.
If the police obtain a warrant to search your home, vehicle or property they must provide a written affidavit to a judge who has to authorize the search. The judge will usually limit the search to a specific area or item.
If you consent to a search under duress or fear of the police officer a good trial lawyer can often file a motion to suppress so that whatever was found in the course of the coerced consent to search is thrown out and not admissible in your case.
President Bush's signing of the Military Commissions Act of 2006 was the most recent and arguably the most effective assault on a criminal detainees' Constitutional rights to illegal imprisonment. The Act states, "No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination."
Habeas corpus ensures that anyone who is detained or imprisoned the right to have that detention or imprisonment challenged in a court of law. If there is no habeas corpus, any person can be unlawfully detained for an indeterminate amount of time with no judicial redress or determination if the detention is warranted or lawful. It's a bedrock principle of our rights guaranteed by the constitution. It's also a societal value that upholds the principles of fairness, liberty and justice.
With one fell swoop, President Bush has managed to completely undermine a bedrock principle of our Constitutional rights. The Military Commissions Act takes the power of determination as to whether a prisoner shall be detained from the courts and places it into the hands of the "United States" (whatever that means).
Habeas corpus is central to our system of jurisprudence and finds its roots in the Magna Carta of 1215. It was expressly provided for when the Constitution of the United States was ratified. It states, "The privilege of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." In Federalist Paper 84, Alexander Hamilton writes, "the practice of arbitrary imprisonments has been in all ages one of the favorite and most formidable instruments of tyranny."
Without the privilge of the habeas corpus writ, prisoners and those detained illegally remain imprisoned without the constitutional rights afforded all people in our society.
This is not a mere legal technicality. It is an attack on the fundamental rights of those accused, detained, and imprisoned by our criminal justice system.
As in other states around the country, criminal charges of lewd and lascivious behavior carry with them the stigma of perversion and automatic guilt. It takes an experienced criminal trial lawyer to combat such charges. Depending upon the testimony of the alleged victim and the alleged perpetrator, these charges can often be reduced to battery or reckless behavior. Here's a summary of the law in Florida:
LEWD OR LASCIVIOUS MOLESTATION.--
(a) A person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator, commits lewd or lascivious molestation.
(b) An offender 18 years of age or older who commits lewd or lascivious molestation against a victim less than 12 years of age commits a life felony, punishable as provided in s. 775.082(3)(a)4.
(c)1. An offender less than 18 years of age who commits lewd or lascivious molestation against a victim less than 12 years of age; or
2. An offender 18 years of age or older who commits lewd or lascivious molestation against a victim 12 years of age or older but less than 16 years of age
commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(d) An offender less than 18 years of age who commits lewd or lascivious molestation against a victim 12 years of age or older but less than 16 years of age commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(6) LEWD OR LASCIVIOUS CONDUCT.--
(a) A person who:
1. Intentionally touches a person under 16 years of age in a lewd or lascivious manner; or
2. Solicits a person under 16 years of age to commit a lewd or lascivious act
commits lewd or lascivious conduct.
(b) An offender 18 years of age or older who commits lewd or lascivious conduct commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(c) An offender less than 18 years of age who commits lewd or lascivious conduct commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(7) LEWD OR LASCIVIOUS EXHIBITION.--
(a) A person who:
1. Intentionally masturbates;
2. Intentionally exposes the genitals in a lewd or lascivious manner; or
3. Intentionally commits any other sexual act that does not involve actual physical or sexual contact with the victim, including, but not limited to, sadomasochistic abuse, sexual bestiality, or the simulation of any act involving sexual activity
in the presence of a victim who is less than 16 years of age, commits lewd or lascivious exhibition.
(b) An offender 18 years of age or older who commits a lewd or lascivious exhibition commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(c) An offender less than 18 years of age who commits a lewd or lascivious exhibition commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(8) EXCEPTION.--A mother's breastfeeding of her baby does not under any circumstance constitute a violation of this section.
While these cases carry a social stigma, the burden of proof in a court of law lies squarely with the prosecution. All accused are presumed innocent until proven guilty in a court of law and in the judgement of a jury of their peers. These types of crimes take a special kind of handling since they are fraught with drama and emotion. A good trial lawyer can cut through all of that and attempt to get at what actually happened.
A Sarasota County judge has tossed 7 DUI cases because police failed to inspect a repaired Intoxilyzer 8000 alcohol breath analysis machine. The ruling is significant because it will also impact hundreds of other DUI cases in which the repaired machine was used. Prosecutors won't be able to tell jurors about a defendant's blood alcohol content. Drivers are considered impaired if their blood-alcohol content, or BAC, is more than 0.08 percent. Drivers blow into a tube and the Intoxilyzer 8000 analyzes their breath to determine a BAC.
The seven defendants had BAC levels as high as 0.23 which is nearly three times over the legal limit.
According to the Sarasota Herald Tribune, "but the Florida Department of Law Enforcement rules say a repaired Intoxilyzer 8000 has to be inspected before it can be used to collect evidence against a driver. This machine, number 1346, had a problem with its dry gas regulator, which is needed for the control tests before and after the driver's breath test. Without the dry gas regulator, the machine will not work. FDLE replaced the dry gas regulator on March 5, but did not conduct an inspection. Because of that, the breath tests violated the state's implied consent law, which requires licensed drivers to consent to a breath test if stopped under suspicion of DUI, County Judge Phyllis Galen ruled."
The Miranda warning has been in effect for 42 years now. It was enacted specifically to protect a suspect's Fifth Amendment privilege against self-incrimination. It's always been a controversial ruling but one that most attorneys and constitutional law experts hail as a warning that strengthens the application of the document in every day life.
However, that is not to say there are problems with it. For instance, when Miranda was instituted, the U.S. Supreme Court did not provide the precise language law enforcement officals must use before an interrogation. This has led to all sort of disputes and legal wrangling in the courts.
Last month, the Florida Supreme Court heard a case concerning Miranda. The case in question involved a firearm conviction and subsequent 10-year prison sentence being overturned because the police did not explicitly inform the suspect that he could consult a lawyer before AND during questioning. The Florida Supreme Court ruled that the man's Fifth Amendment rights were violated and upheld the lower court's decision to overturn the conviction.
This is not only a significant victory for supporters of Miranda but also those whose constitutional rights have been trampled due to imprecise, inaccurate, sloppy interpretation of the Miranda warning.
While the Supreme Court ruling is a positive step in the right direction, a conviction can still be obtained even when one's Miranda rights are not provided. A famous example is the John Couey case. Couey's confession was eventually thrown out but he was still convicted and received the death penalty for murdering a minor.
I recently successfully defended a DUI in Tampa. My client was a young professional who had been out celebrating with her boyfriend. As she was leaving an Ybor bar, she had neglected to turn on her lights. The police pulled her over and asked her to perform a field sobriety test which she failed. She refused the breathalyzer and was subsequently arrested and charged with DUI.
After a detailed review of the field sobriety video, I argued that the typical slurred speech and bloodshot eyes were not present. She appeared steady and not impaired. I argued this to the State prosecutor who agreed with me. My client's charge was reduced from DUI to reckless driving that entailed no restrictions on her driving.
At times, the police can be sloppy in how they conduct their field sobriety tests. Also, at times they tend to fail people rather quickly without proper justification. A good trial lawyer can fight back against these charges by contesting the manner in which the field sobriety test has been conducted and/or the decision reached by the law enforcement officer.
I recently successfully defended a DUI in Tampa. My client was a young professional who had been out celebrating with her boyfriend. As she was leaving an Ybor bar, she had neglected to turn on her lights. The police pulled her over and asked her to perform a field sobriety test which she failed. She refused the breathalyzer and was subsequently arrested and charged with DUI.
After a detailed review of the field sobriety video, I argued that the typical slurred speech and bloodshot eyes were not present. She appeared steady and not impaired. I argued this to the State prosecutor who agreed with me. My client's was reduced from DUI to reckless driving that entailed no restrictions on her driving.
At times, the police can be sloppy in how they conduct their field sobriety tests. Also, at times they tend to fail people rather quickly without proper justification. A good trial lawyer can fight back against these charges by contesting the manner in which the field sobriety test has been conducted and/or the decision reached by the law enforcement officer.
