January 2009 Archives

I held a press conference yesterday in St. Petersburg regarding my client James Seay.  Seay is an 18 year old presently in the Pinellas County Jail for armed robbery and attempted murder of a police officer.  I called the press conference yesterday in order two accomplish two things:  1)lower the inflammatory rhetoric and 2)call for an objective thorough investigation into the facts of the case.  At this point, there is very little we know with certainty.  The rumors, accusations, and blame serve no purpose other than to inflame passions and emotions.

I was very disappointed that ABC News in its updated news story this morning chose to slant its story by taking my words out of context.  It's poor, sensational journalism and I'm going to call them on their behavior.  This is exactly the type of thing we need to avoid in this case.  I'm going to ask them for a retraction and an apology.  I've already called the Chief of Police in St. Petersburg and left word with him that the story was inaccurate.  The news media must be held accountable and accurately report the news.  They can't distort it for their own particular purposes.

and Shaheed Amad Wright, 16, of 4425 15th Ave. S.

All three are in serious trouble and will need a good criminal trial lawyer.  The shooting and attempted murder of a law enforcement officer may bring the harshest of penalties.  While the St. Pete Times is reporting that Seay confessed to the shooting we don't know the circumstances of the confession.  Was it coerced?  Were the three read their Miranda Rights?  Did they understand them?  At this point, in spite of the high emotions which rightly coincide with such a violent crime, the suspects are still just that, suspects.  The crimes are still alleged to have been committed by these three.  As unpopular as it may be, these three deserve to be regarded as innocent until proven guilty in a court of law not in the press or public opinion. 

On a final note, my thoughts are with the 19 year police veteran recovering from substantial wounds. 

A Tampa Bloods gang member was convicted and sentenced to 21 years and 10 months for possession and distribution of crack cocaine.  Durwood Milton Gwyn was originally arrested after he tried to sell the crack to an undercover police officer.  When arrested, authorities found 41 grams of the illegal substance in his possession.  Gwyn was treated as a career criminal for his association with the Bloods gans as well as his previous drug conviction.

Whether Gwyn was provided good legal counsel was not readily available.  However, the rather harsh sentence underlies the discrepancy between crack and powder cocaine convictions.  Irrespective of his other criminal conviction, the other damning factor in Gwyn's case was crack cocaine.  I would have to know more facts about this particular case but perhaps this is a case that could be reviewed under the crack/powder cocaine sentencing discrepancy.

Indeed, what a great country it is in which we live.  We're about to witness the swearing in of Barack Obama as the 44th President of the United States, a man of biracial background who grew up without a father is about to become the leader of the free world.  What a message this sends to the rest of the world.

I never thought I'd live to see an African-American President of the United States.  Yet the country of which I'm a proud citizen elected a young, talented African-American to lead us.  I couldn't be prouder of the message and symbolism behind this event.  Our greatness as a country is manifest in this historic event.  We can overcome racial prejudice, slavery, and oppression to do rise up and lead by example.  President-elect Obama (I can't wait to just refer to him as President Obama!) wasn't elected because he is African-American.  The people elected him because he was capable and up to the task.  He will lead us and inspire us.

I volunteered during his campaign for president.  I was moved and inspired by the patriotism and idealism that I found in the hearts and minds of my neighbors and fellow citizens.  In spite of our differences and the difficult economic circumstances that face us, we made a bold choice for change and leadership.  This is what makes us great as a nation.  We refused to be divided by race or religion.  We refused to be distracted by gender or geography.  Rather, we stood united as one nation committed to the Founding Fathers' ideals.  That's what makes us great.  That's what unites us in spite of struggle or strife.  God Bless America!

This time the trial hinged on "he said, she said" rather than the facts of the case.  My client was charged with assault and facing jail time.  The facts were in dispute with each side sticking to their particular version of how things happened.  There was no physical evidence.  My client was a middle-aged man of slight build.  The female whom he allegedly assaulted was 6 feet tall and weighed around 180 pounds.  During her deposition, she came across as aggressive and willing to fight if the situation warranted.  On the other hand, my client presented himself as a gentle, mild-mannered man who wouldn't instigate any kind of problem.

Guess who won at trial?  I did because the jury found my client to be more credible.  The alleged victim came across as aggressive and arrogant-neither quality appealed to the jury. 

In a jury trial, there's a certain amount of salesmanship that has to occur to be victorious.  The jury has to like your client and has to like you as an attorney.  If they don't, you may be in for a hard time.

A good criminal defense attorney recognizes that trials are unpredictable to the point that in most cases, the defendant will want to avoid going to trial.  There are too many intangible factors invovled in trials: the judge, the jury, witness testimony, and the behavior of your own client including how the client comes across to the jury.  A trial attorney can have the facts in his favor.  However, if the jury doesn't sympathize or like the defendant, you have a huge problem at trial.

In one case I had a few years ago, my client was originally charged with auto burglary.  After the victim's deposition, the prosecutor decided to amend the charge to armed burglary.  The alleged victim in this case had testified during his deposition that he remembered having a gun in his vehicle prior to the robbery. Given the testimony of the alleged victim, the prosecutor was proper in amending the charges against my client to armed burglary which, in this case, carried a life sentence. 

As we approached trial, I had two major problems in defending my client.  First, I had to deal with the gun issue.  Second, I had to explain how my client's fingerprints were found at the scene.  Essentially, I dealt with the gun issue by attacking the motivation of the victim.  Why did he all of a sudden six months after the fact remember that a gun was in the car at the time of the alleged crime.  I proposed to the jury that perhaps the alleged victim was going to make an insurance claim for the stolen gun.  However, his "convenient memory recall" could cost my client life in prison. 

Secondly, I instructed my client to admit that he was indeed a career criminal drug dealer.  He also admitted he was there at the scene of the crime.  However, when he came upon the crime scene, he found glass in the parking lot next to the vehicle.  My client explained that he was concerned about damaging his own vehicle so he moved the glass away from his vehicle.  That would explain how the his fingerprints appeared on the vehicle glass.

The jury found my client not guilty in spite of the fact that he had had nine felony convictions prior to this trial.  The jury knew all of this from his own testimony yet he was able to walk away from charges that would have sent him to prison for life. 

Russell Rhodes, a morning news anchor at Fox 13 in Tampa, was arrested Friday night in a Channelside parking lot for obstructing or opposing an officer without violence.  As a criminal trial lawyer, there are a few troubling points to the media story.  First, what constitutes reckless driving  in a parking garage?  Second, his mug shot looks like he was beaten.  I'm not saying that is what happened but do you get those kinds of bruises when knocked to the ground?  My point is this:  we don't know the whole story.  The media reports only provide the police story.  We don't know the circumstances surrounding the incident.  Did the police officer properly identify himself?  He was off-duty at the time.  Why was Rhodes thrown to the ground?  The facial injuries don't add up.  There are still many facts still in dispute in this one.  Rhodes needs a good, aggressive criminal defense lawyer. 

The Fourth Amendment to the Constitution of the United States is that part of the Bill of Rights which protects each and every one of us against unreasonable searches and seizures.  It reads, "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."

Yet, the US Supreme Court took a significant step to weaken this essential civil liberty. According to the American Constitution Society for Law and Policy, "The case focuses on the exclusionary rule of the Fourth Amendment, which guards against unreasonable searches and seizures. An Alabama man is petitioning to have his conviction on drug and firearms charges overturned because evidence leading to his arrest was found during a search based on an incorrect warrant for arrest. However, a decision by the 11th U.S. Circuit Court of Appeals upheld his conviction, and in doing so created an exception to the long-standing exclusionary rule, which states that evidence obtained from an unlawful police search is not admissible by the prosecution during a criminal trial."  In a 5-4 ruling split along ideological lines the Court ruled that evidence gathered from an unlawful arrest based on inadvertent police error may be used against criminal defendants.  In their ruling, the Justices muddied the waters concerning how one determines unreasonable searches and seizures and gives police unnecessary leeway to be lax and sloppy in their investigation.  Prior to this bad ruling, police had to be attentive to detail and take care in how they proceeded in doing a search.  Now, the leeway provided by the court only weakens the defendants' constitutional rights.

If you've picked criminal trial juries like I have you often spend considerable time trying to plumb the depths of their psyches.  You try to find out which ones have prejudices, biases, incapacities to render a fair and impartial verdict.  The process is inexact and some of it relies on your own experience as a trial lawyer as well as the information provided about the prospective juror's background.  But, beyond that, nothing is certain.

That's why today's Wall St. Journal's Science Journal piece about the role of the brain and how it determines one's opinions about crime and punishment.  The Science Journal reported on the ambitious 3-year $10 million project sponsored by the John D. and Catherine T. MacArthur Foundaton to probe how the brain functions and deals with legal concepts as well as an individual's innocence or guilt.  The program which is overseen by retired Supreme Court Justice Sandra Day O'Connor in conjunction with neuroscientist Michael Gazzaniga, has pooled the talens of 30 brain experts, philosophers and legal scholars to study this phenomenon.  Although in its infancy stages, the project published a study conducted at Vanderbilt University.  According to the Journal, the researchers,  "measured how our brain cells behave as we decide whether to punish someone accused of a crime when we have no personal stake in enforcement. The researchers tested 16 volunteers in a functional magnetic resonance imaging machine. The fMRI monitored the blood flow and oxygen demand associated with neural activity as each subject made two distinct legal judgments about blame and punishment in 50 hypothetical scenarios ranging from simple theft of a music CD to rape and murder.

No one part of the brain stands in judgment of others, they found. Instead, at least two areas of the brain assess guilt and assign an appropriate penalty. An area associated with analytical reasoning, called the right dorsolateral prefrontal cortex, became very active, they reported. But the decision process also electrified emotional circuits."

Hopefully, the study will give us better insight into how the human brain determines and weighs certain kinds of behavior, especially behavior that is deemed criminal by our statutes and laws.  The more data we have will go along way in providing equity in our justice system.  Of course, there are those who worry that such studies undermine the role of free will and accountability for our actions.  I don't view this as a serious threat to free will or a person's ability to choose.  In sum, it's a step forward that may help lawyers and their clients obtain equal protection under the law.

He had just been named manager of Bay Walk two days ago and now stands charged with a felony of grand theft.  Howard Rosenthal was arrested by Pinellas County detectives on Thursday.  While a Sheriff's spokesperson deemed the arrest and Bay Walk as a coincidence, I wonder.  Perhaps someone is trying to blackball Rosenthal.  Rosenthal remains innocent until proven guilty in a court of law. 

Rosenthal was booked into Pinellas County Jail on one count of grand theft.  While the count is a felony, he still has constitutional rights which must be protected.  In addition, he has the right and duty to investigate these charges against him.  If he's been railroaded, he has the right to face his accusers in a court of law and have them aggressively and extensively interrogated.  That's how the criminal justice system works.  Innocence is assumed until proven otherwise.

Mike Halkitis could only think of one other case of matricide in his 31 years of prosecuting crimes in Pasco County.  Yet, January 20th, his office will try Ryan Young for the murder of his mother.  The prosecutor's case appears to be tied to the defendant's tearful confession to an investigator.  His court-appointed lawyer, Assistant Public Defender Dean Livermore, tried to get the confessions thrown out, but Circuit Judge Thane Covert ruled they were legally obtained. The prosecutors have audio evidence of Young saying things like, "I was happy she was dead."  While this is pretty damning evidence, Young's defense lawyer may prevail if he's able to cast doubt on other factors concerning the murder. 

It's been an issue in Florida since 1970 when the Supreme Court ruled that juries could be comprised of less than 12 members.  Now a case that may be considered by the Supreme Court will challenge that assumption.  In Florida, misdemeanor cases and some felony cases have 6 jurors rather than the standard 12.  This can be a potential problem because a smaller jury does not provide a cross-section of the community.  Also, smaller juries are more likely to be compliant and side with the majority.  The case in question is Deltoro v. Florida and involved a man, William Bolivar Deltoro, convicted by a jury of six of sexually molesting his own daughter.  Now, as I stated earlier, normally such a serious case would be tried in front of 12 jurors not six.  However, in this instance the case had only six jurors.

It will be interesting to see if the Supreme Court decides to hear the case.  The notion of small juries providing equal access to justice and equity as a regular 12 member panel is not supported by thirty-plus years of evidence.  Steven Calabresi and Michael Saks, writing an opinion piece in the Wall St. Journal, correctly point out,

For more than six centuries, the English common law understanding was that a jury consisted of 12 persons. This understanding was shared in America as well. At Virginia's convention to ratify the Constitution, for example, James Madison and others argued that several characteristics of the jury, including its size, were so well and widely understood, that it was unnecessary to specify them. Gov. Edmund Randolph explained: "There is no suspicion that less than 12 jurors will be thought sufficient."

In 1930, on one of several occasions when the question came before it, the Supreme Court said that "it is not open to question" whether juries may consist of fewer than 12."

It wasn't until 1970 that the idea of a smaller jury was broached.  It's time for that idea and practice to go away with a new Supreme Court decision.

"

Rev. Joseph Waters, pastor of Corpus Christi Catholic Church in Temple Terrace, has been arrested for DUI.  At the time of his arrest at 2:30am he was driving on US 301 south of Riverview. 

At the time he was stopped by Hillsborough County Sheriff's officers, Waters refused a breathalyzer and was booked into the Orient Road jail. 

Waters is the former vice rector of St. John Vianney College Seminary in Miami.  He has held various positions with the Diocese of St. Petersburg including Director of the Office of Worship. 

As I've stated in this blog before, Fr. Waters did the right thing by refusing the breathalyzer, a notoriously inaccurate measure of one's impairment.  As far as a field sobriety test, it's not clear from news reports if one was administered to Waters.  That's a normal part of a DUI stop so I would imagine he failed the field sobriety.  However, that is not clear evidence that Waters was indeed impaired at the time of the traffic stop.  If he was tired, taking medication, has any physical impairment, these factors would affect his ability to perform the field sobriety in a satisfactory fashion.  Even the spot in which Fr. Waters was asked to take the field sobriety may come into play in his defense.  For instance, if the ground was not level, his balance and coordination may be affected.

These are all factors of an aggressive DUI defense. 

What started out as a quiet Sunday evening for Riverview's Scott Laughlin ended up as a night in jail after Hillsborough County Sheriff's Deputies arrested him for aggravated assault with a firearm, a serious felony charge.  It all started as Laughlin was sitting outside of his Riverview home when Wilmer Orengo's dog defecated on Laughlin's lawn.  Laughlin became so angry he confronted Orengo with a firearm.  The police were called and Laughlin was arrested and faces a felony charge of aggravated assault.

If Laughlin hires a criminal defense lawyer, I would surmise the first thing the lawyer would attempt to do is reduce or dismiss the charges.  Chances of success depend largely upon any prior criminal history and the evidence gathered by police. 

On another note, this is a good opportunity to stop and reflect on how quickly on'e life circumstances can change.  One moment Scott Laughlin is sitting on his porch enjoying a Sunday evening with a friend.  The next minute, he's in the back of a police cruiser charged with a felony. 

The past year has seen a tremendous breakthrough in remedying the unfairness in sentencing of those convicted of crack cocaine crimes against those convicted of powder cocaine.  Finally, judges around the country are reviewing these cases and penalties.  Some states, including Florida, are actually reducing jail time for those who were unfairly sentenced to harsher prison terms because their offense involved crack cocaine rather than powder cocaine.

If you have a relative or loved one who's in prison due to a crack offense, call an experienced criminal defense lawyer.  The call may result in your loved one's prison sentence being reduced significantly. 

The US Sentencing Commission has urged Congress and the courts to review and remedy this unfair situation, especially those whose terms end in 2009 and 2010.  While other drug offenses including prescription drugs and oxycodone, methamphetamines, hydrocodone, oxcyontin, and perhaps marijuana may be up for discussion in the future.  It's high time that our society treats the issue as a substance abuse issue rather a criminal issue.  Our prisons are overcrowded and we're incarcerating people who need treatment rather jail time.

Sometimes when a person calls me after having been arrested for DUI the person is so nervous that they start thinking immediately about all the negative consequences a conviction will impose upon their lives and the lives of their loved ones.  On one hand, it's reasonable to think about such things after a DUI arrest.  If convicted, your car insurance will be more expensive, there will be court costs and fines assessed, a DUI school or alcohol/substance abuse prevention class may be ordered, and you may lose your job if driving is an important part of what you do for a living.

On the other hand, an experience criminal defense lawyer may be able to get the charge dropped or at least reduced depending upon the circumstances of your case.  If the evidence is weak or circumstantial, if proper law enforcement procedures were not followed, if your civil rights were violated. . .  In other words, if you've been arrested for DUI, you need to talk to a criminal defense lawyer who's got the experience to guide you through this nerve-wracking experience.  I can promise you this-I'll work hard for you to get the best possible result and you'll be part of that decision making process.  So, if you've been arrested for DUI don't make another mistake by trying to deal with it on your own.  Call a criminal defense lawyer that has trial experience and knows the prosecutors in Pinellas County as well as the Tampa Bay area.

One of the most crucial tasks for a criminal trial lawyer is choosing a fair and impartial jury.  In Florida, most criminal jury trials consist of six jurors except for capital cases where the jury is expanded to twelve citizens chosen from those who possess valid Florida driver licenses.

The term used for the jury selection process during which the lawyers are allowed to question prospective jurors is called "voir dire" or "to speak the truth".  The task of the criminal defense attorney in this stage of the criminal trial is to determine which of the prospective jurors are capable of judging the case on its merits ie. the facts of the case.  Such factors as predispositions of one sort or another can be revealed if the voir dire is effective.  The attorney has a right and a duty to challenge jurors who appear to be partial, prejudiced or are not fully truthful in their answers.  Such nonverbal factors such as body language, tone, and appearance also play a role in the attorney's determination of whether the juror should be challenged for fitness to serve on a particular case. 

In Loftin v. Wilson, 67 So. 2d 185, 192 (Fla. 1953), the court, quoting Pearcy v. Michigan Mut. Life Ins. Co., 111 Ind. 59, 12 N.E. 98 (1887), held:

   "The examination of a juror on his voir dire has a two fold purpose, namely,

   to ascertain whether a cause for challenge exists, and to ascertain whether

   it is wise and expedient to exercise the right of peremptory challenge

   given to parties by the law.

   It is the duty of a juror to make full and truthful answers to such

   questions as are asked him, neither falsely stating any fact, nor

   concealing any material matter, since full knowledge of all material and

   relevant matters is essential to the fair and just exercise of the right to

   challenge either peremptorily or for cause. A juror who falsely

   misrepresents his interest or situation, or conceals a material fact

   relevant to the controversy, is guilty of misconduct, and such misconduct,

   is prejudicial to the party, for it impairs his right to challenge."

Normally, the attorney has three challenges in which he may ask the court to remove the prospective juror.  Also, two alternate jurors are selected in case of illness or other unforeseen circumstances arise during trial.

A subsequent guilty verdict may be challenged after the fact if it is revealed that the juror was not truthful and his or her lack of honesty

adversely affected his judgment and led to the guilty verdict. 

In the government's continuing effort to get tough on drug offenses, crack cocaine offenses have been treated to much more severe penalties than powder cocaine offenders in spite of the fact that pharmacologically the two are identical. The Anti Drug Abuse Acts of 1986 and 1988 made harsh mandatory sentencing for crack cocaine offenders the law of the land. 

Even if we put aside the argument that this policy has not worked, the inequities associated with the penalties are not based on sound legal jurisprudence or experience in dealing with drug activity and its prevention. 

The inequity has finally gained the attention of the US Sentencing Commission, an independent agency of the judicial branch has reviewed these sentencing guidelines and recommended they be revised.  In fact, they've urged Congress to amend the sentencing guidelines and reduce prison time for crack cocaine offenders.  According to a story in the Washington Post, "

In March, over the Bush administration's objections, the commission's reductions were applied retroactively, allowing thousands of inmates to petition judges for shorter sentences.

From March through the first week of December, federal judges in the Eastern District of Virginia and in Maryland granted more than 800 such requests and denied about 490. Judges in the District have granted more than 160 and denied nine. Lawyers said Virginia's federal courts have received a large number of applications filed by inmates representing themselves, and many are not eligible for reductions. In the District, the federal public defender is coordinating the effort.

In weighing the requests, judges must evaluate several factors, including criminal records and the amount of crack the offenders were convicted of possessing or distributing. Then there are the intangibles. Some judges want a strong indication that offenders are remorseful for their conduct."

The legal hurdles defense lawyers face are myriad yet some are pushing for judges to revisit sentences that push the penalties below the recommended guidelines of the Sentencing Commission.  At the very least, prosecutors, judges, defense lawyers, and legal experts are finally grappling with inequities that should have been challenged two decades ago.