Minutes ago, 42 year old Michel Escoto was convicted of murdering his wife.  It took twelve years from the vicious beating to today’s first degree murder conviction.  Jurors took just 2 1/2 hours to convict Escoto, who committed the murder to collect on a $1 million life insurance policy.  The trial took a month and was anything but typical.

As has been repeatedly reported, this defendant believed it was in his best interest to act as his own attorney.  The Constitution does give him the right to have a fool for a client.  The question is, “Was this a smart move?”

The obvious answer is, “Hell no!  Look at the outcome.”  Even ignoring the guilty verdict for one moment, it still was dooms day from the start for this convicted murderer.  I must concede that it was theoretically possible that this guy, who never attended law school and had never handled a traffic ticket for himself or anyone else, could have pulled off an acquittal.  I’ll grant him that generic possibility.  In reality, however, his chances of winning, from the start, were always so low, so remote, approaching almost no real value.

Trial work is an art form.  Effective cross examination is a unique skill cultivated over years of practice.  This defendant was misled by his ego that erroneously told him that he was his best choice for lead attorney.  I told one local reporter that I would tell this now convicted defendant, “Your ego is not your amigo.”

I’m not suggesting that having a skilled and experienced attorney will ensure an acquittal.  Candidly, I think some cases are losers for the defense, unless David Copperfield is on retainer and can make overwhelming evidence disappear.  However, in this case, a veteran attorney was appointed on behalf of this now convicted murderer and he played a minor role, at the request of the defendant.  The skilled attorney should have been cross examining witnesses instead of the defendant.

At one point, the defendant was held in contempt by the judge and then ordered to serve 30 days in jail.  The problem with that is that jurors saw Escoto act up in court and anger the only person they trust in that the courtroom, the judge.  Avoiding conflicts with the judge that may give the impression that the judge favors the other side is something that trial lawyers learn early on in their career.  Escoto, having never litigated a day in his life, wouldn’t have learned that critical lesson.

The clear takeaway from this trial is that one should never represent themselves in a criminal case, especially when the charge is as serious as this one.  If Ted Bundy were still around, he’d surely agree with me.

 

 

Yesterday, I wrote about Superior Court Judge Jan Jurden, who made a decision that has resulted in her receiving a number of death threats.  See:  http://www.floridacriminaldefenselawyerblog.com/2014/04/jail-child-rapist.html  Many are demanding her removal from the bench.  As I shared with you in the article, the judge sentenced a man who raped his three year old daughter to probation instead of prison.  The offender was a du Pont family heir.

The outrage stemmed primarily from what the judge wrote in her sentencing order:  ”He would not fare well in prison.”  She used that as a mitigator in doling out the very light sentence.  Nowhere in her order did she attempt to justify her sentence by alleging that the prosecution’s evidence was weak in any way.  That fact, in my opinion, would have served as the only possible reason to justify probation in this horrific case.   So, naturally, in yesterday’s blog post, I was very critical of this judge’s judgment.  Additionally, based upon the facts that were available to me when I wrote the article, I put the blame solely on the judge.

Many attorneys, both prosecutors and defense lawyers, are coming to the judge’s defense.  Based upon the facts that just came to my attention, I am now jumping on that band wagon, to some extent.

What I just learned was that the prosecutor handling the case recommended a sentence of probation.  The judge didn’t come up with that on her own.  Prosecutors apparently had challenges proving this case.  For example, there reportedly was no physical evidence to corroborate the child’s claims.  Additionally, prosecutors were concerned about putting a young child witness on the stand where she invariably would have faced vigorous cross-examination and possible further victimization.  It’s important to note that child witnesses can be very unpredictable in front of a jury.  Prosecutors never announced on the record all the reasons why they recommended probation.

In recommending probation, prosecutors thought there was a strong probability that they may lose the case and thought a felony conviction and getting him on the  state sex offenders registry was better than possibly getting nothing as a result of an acquittal.  Additionally, it was prosecutors who initially charged the defendant with second-degree rape, and then lowered the charge to fourth-degree rape.  The recommended sentence for that offense is zero to 30 months in prison.  So the judge did legally sentence du Pont within the guidelines.

Many will read this and think, as did I in yesterday’s article, “While she was legally permitted to sentence him to probation, she morally shouldn’t have.” I will in no way attempt to persuade you otherwise.  What is imperative to point out is how the criminal system will be adversely affected if judge’s routinely ignore sentencing recommendations from prosecutors.  If judge’s don’t follow what the state recommends, then defense attorneys can’t recommend that their clients plead guilty and accept plea bargains.  Instead, they will be forced to tell clients, “This judge is a loose cannon and if you plead guilty, this judge may give you a lot more than what the prosecutor has agreed to recommend.”  If that were to happen, then the system would shut down.  Plea bargains are a necessary evil of the system.  It keeps the system moving.  There’s no way judges can try every case.  That’s what will happen if judges don’t back prosecutors on most pleas.

Could this have been that one case that the judge decided, “No Mr. Prosecutor, I won’t accept that lenient sentence recommendation in this case because the facts are just too abhorrent and he is too much of a danger to the community?”  Possibly.  However, this judge should assume, as most do, that prosecutors know the ins and outs of their case better than anyone.  They know the strengths, weaknesses, mitigators etc. better than anyone.  It was reasonable for this generally experienced and fair judge to rely on the prosecutor for sentencing guidance.

The point of writing this article is to change my position to some extent based upon my new information.  I believe that the judge doesn’t bear full responsibility for the outcome of this case.  Prosecutors made the recommendation for probation.  They did so because of challenges that they faced with their case.  I believe much of this controversy wouldn’t have started if the judge had made that clear in her sentencing order.  I would have had a different opinion had the judge written in her sentencing order, “Additionally, prosecutors recommended that the defendant be sentenced to probation.”

 

This isn’t a belated April Fool’s post.  This really happened.  A wealthy guy rapes his three year old daughter.  The judge, Judge Jan Jurden, sentenced Robert H. Richards IV, a wealthy du Pont heir, to probation.  Prosecutors passionate sought a ten year minimum mandatory prison sentence.  What’s most troubling about this story isn’t his sentence…it’s the reason the judge gave for the sentence.

In her sentencing order, Judge Jurden claimed she considered “unique circumstances” when deciding his punishment for fourth-degree rape.  She felt that du Pont would  ”not fare well” in prison and needed treatment in lieu of prison time.

Not surprisingly, many people are outraged by the judge’s decision and reasoning.  Some claim that her rationale would serve as better justification if the offender was a drug addict and not a child rapist.

What’s also intriguing is that this particular judge is known by both prosecutors and defense attorneys as a “tough sentencing judge.”  Judge Jurden has been a judge since 2001.

Many who criticized the sentence pointed out correctly that prison officials can put inmates in protective custody if they have concerns about their safety.  It’s no secret that child rapists are often targeted by other inmates.

As an attorney who has prosecuted and defended many of these types of cases, I am extremely surprised at the sentence.  I am even more shocked at the rationale the judge gave for the lenient sentence.  This defendant wasn’t frail and meek.  Records show that he was  6 feet, 4 inches tall and between 250 and 276 pounds.  He had no known physical ailments.  Candidly, even if he was 5 foot tall and 95 pounds, I would still take exception to the sentence.

As a defense lawyer, I would fight to get the same outcome.  I’d be thrilled if I could obtain probation instead of prison for one of my clients under these circumstances.  Regardless of what sentence I would seek professionally, I find that there was something very improper about the judge’s analysis on this one. Aristotle defined justice as, “Like cases being treated alike.”  Without question, this can safely be called an “injustice” in light of the disparity between what the judge doled out and what 99% of other judges in that same courthouse and around the country would have given.

Adding insult to injury, the defendant is extremely wealthy.  This judge did a phenomenal job perpetuating the majority of the public’s belief that it takes money to get an extraordinary outcome in the criminal arena.  Additionally, I wonder how many future rape victims will be impacted by this case.  Already, there’s a certain reluctance on many to come forward and confront their accuser.  A major source of their fear stems from their concern that the system won’t adequately punish the perpetrator.  This case seems to justify their concern.

I can only see justification for a sentence like this if the prosecution’s evidence was lacking.  In many of these cases, without physical evidence, and some contradictions in the testimony, prosecutors have a tough time proving the cases beyond and to the exclusion of every reasonable doubt.  Plea bargains, even lenient ones, become necessary in those instances.  The thought process is, it’s better to get something rather than nothing.  This case didn’t have any of those evidentiary challenges.  The judge didn’t cite a “lack of evidence” as the reason for her extraordinary generosity.  As a result, I think the judge’s sentence, without hearing more, is a miscarriage of justice.

INTRODUCTION

A cop comes home after a long day at work.  His wife rushes to greet him at the door and enthusiastically asks, “Honey, how was your day?”  He responds, “It was rough, but very productive.  We did another prostitution sting and made over 30 arrests.”  The wife smiles proudly and exclaims, “Way to go baby!  I’m so proud of you.”  He responds, “I need to shower and rest, after all the  sex I had today.”  Shocked and bewildered, the wife says, “Did I just hear you correctly?  You had sex today?”  He fires back with, “I know.  It sucks.  This police work is not what I thought it would be.  Having sex with all these prostitutes so we can make the arrest is very tiring”  Putting aside, for just one moment, what would go on in that marital home after that brief and shocking exchange, I must ask one question, “Can that happen legally?  Can a cop legally have sex with a prostitute, assuming it’s all in the line of duty?”  The answer may surprise you.

 ANALYSIS

In cheesy television cop dramas, law enforcement officers slap handcuffs on the prostitutes as soon as there’s an agreement reached to exchange money for a particular sex act.  Typically, you never see the cop actually receiving the service of the sex worker.  That would be absurd.  Also, what viewer would think that it was realistic?  Surprisingly, one state in this wonderful union of ours legally permits officers to actually have sex with the prostitutes  before arrest.  Here’s a hint, “Book em’ Danno!”  That’s right, police officers from Hawaii are fighting to keep a state law that permits them to have the flexibility to actually have sex with the prostitutes.  They argue that if undercover cops are no longer permitted to engage in sex acts with prostitutes then they would be able to change their tactics and filter out officers.   Further, they maintain that if the law enforcement exemption is deleted, prostitutes would demand that the sex occur before money changes hand.  Cops call that, “cop checking,” the practice by prostitutes of filtering out officers.

The reaction from civil rights groups and victims’ advocates has been extremely strong.  They call law enforcement’s position, “ridiculous.”  They believe that this controversial “investigative tool” is extremely problematic.  They point to states like Georgia, California, Illinois, New York, Texas and Washington, D.C., states with much higher rates of sex trafficking and prostitution than Hawaii, as examples of states that don’t allow actual penetration to be used by cops during prostitution sting investigations.  In those states, they argue, cops have no problems making viable, successful and lawful arrests.

Just last month, Hawaiian lawmakers in the state House voted to preserve the exemption.  However, the Senate’s Judiciary Committee deferred a vote until later this week.

Another option other than banning the law is a proposed amendment that lawmakers will consider.  It permits officers to touch adult prostitutes, however, they wouldn’t be legally permitted to “sexually penetrate” them.  When it comes to underage prostitutes, officers would not be permitted to touch them.

OPINION

After working in the criminal arena for over two decades, few things shock me any more.  Candidly, hearing that cops were allowed to legally penetrate the prostitutes that they arrest is one of those things that definitely shocks me.  If this was the law in Amsterdam, I wouldn’t give it a second thought.  The fact that it’s on the books in the United States is unbelievable and troubling.

I’ve prosecuted and defended many prostitution cases.  I’ve never heard of cops having challenges making sufficient arrests solely because they couldn’t engage in the physical act.  There’s always been numerous prostitution cases coming in and out of the criminal system solely based on discussion without having to consummate the act they discussed.  In the few instances where some cases may be jeopardized because Toiletta, Falopia and/or Amber need to have sex to “cop check,” then I say, “Let em’ go.”  Nothing is worth having a law on the books like the one they have in Hawaii.

CONCLUSION

I think it’s a matter of time before this law is abolished.  Now that many more have been made aware of it, I think legislators will finally tell cops, “No.  You’ve got to make your arrests without actually having sex with these gals.”  As for the hypothetical cop discussed above who discloses to his wife that he’s been engaged in a day of sex acts all in the name of law enforcement, I say, “Good luck my friend.  You’re going to need it.  Aloha!”

 

INTRODUCTION

I’ll never forget the case.  A mother of a sick child needed approximately $4000 for an operation for her son. With no insurance for the procedure, she agreed to transport a suitcase that she knew contained illegal drugs.  In exchange, the drug trafficker agreed to give her the exact amount of money she required to pay for the needed operation.  Unfortunately, she was caught at the airport and charged with drug trafficking.  Because of the Draconian drug laws that have been on the books for way too long, she faced a minimum mandatory sentence of 15 years in prison.  A minimum mandatory sentence means they serve every single day of their sentence, getting no time off for even exemplary prison behavior.  In spite of the judge wanting to offer her a much reduced sentence, his hands were tied.  The law doesn’t permit judges to waive minimum mandatory sentences.  Only prosecutors have that extraordinary power.  Fortunately, a change may be a coming soon.

ANALYSIS

Recently, Attorney General Eric Holder spoke before the U.S. Sentencing Commission and supported a change to the Federal Sentencing Guidelines that would dole out only the most severe sentences for only the most serious drug traffickers.  The proposal would impact approximately 70% of all drug trafficking defendants and reduce the average sentence by 11 months.  That represents a potential 18% reduction to sentences.  An extra bonus of the proposal is that the population of the Bureau of Prisons would drop by approximately 6,500 inmates at the end of five years.

The decision is expected in April.  Until the decision is made, the Department of Justice is requesting that prosecutors not object if defendants seek to have the newly proposed guidelines applied to them during sentencing.

My initial reaction is, “Hallelujah!”  My next reaction is, “What took so long?”  Many state and federal judges, most defense attorneys, and even a number of prosecutors have expressed frustration with the minimum mandatory drug trafficking sentences.  Justice should never be a, “One sentence fits all.”  Additionally, the disparity between the enormous sentences that non violent drug traffickers are receiving compared to the much lower sentences given on many violent offenses leaves many of us scratching our heads, demanding change.   I applaud Holder for finally recommending this change to the Federal Sentencing Guidelines.  The Criminal Justice System will greatly benefit as a result.  

CONCLUSION

Unfortunately, I don’t recall the exact sentence given to the mother who trafficked drugs to help finance her son’s operation.  I recall that prosecutors did waive the 15 year minimum mandatory sentence.  She still served a number of years in prison for her crime.

I’ve never advocated that any drug trafficker should avoid signifiant penalties assuming the evidence is sufficient.  I just don’t want to see another defendant receiving a Draconian penalty for their crime when just a really harsh one will suffice.

A Texas father (whose name hasn’t yet been released) wishes he can turn back the clock.  He may face serious criminal charges for fatally shooting a teenage boy.  The 17-year-old was snuck into the bedroom of the father’s 16-year-old daughter.  When the father walked into his daughter’s room and sees the teen boy, he quickly turned to his daughter to find out who he was.  His daughter apparently responded, “I don’t know.”   Then an argument took place between the father and the teen, named Johran McCormick.  The father then claims he saw the teen drop his hands like he was grabbing something.

The father claims he was in fear at that moment.  As a result, he opened fire on McCormick.  He died on the scene.

The mother of the deceased teen is understandably livid.  She told one reporter, “I would like my baby back, but I know that’s not possible, He didn’t deserve to die like that.”

After the shooting, the father complained that he wasn’t feeling well.  He was immediately transported to the hospital, suffering from a panic attack.

So what should happen to the father?  Let’s start the analysis with acknowledging what a tragedy this is.  The teen shouldn’t have died.  But the question is whether the father should be criminally charged with his death.  If so, the next question is what should the charge be?

I suspect the father will argue that when he heard his daughter claim that she didn’t know the guy in her bedroom, the father feared that the teen was an intruder.  In that moment, whether the teen was reaching for a condom wrapper or a weapon or something else, it would be difficult for the father to discern what it was, under those stressful circumstances.  He has a strong argument that the shooting was justified, albeit an unfortunate tragedy.

If prosecutors do charge him, it appears that the worst that he should face is one count of Manslaughter.  Murder would require premeditation.  While premeditation can be formed in an instant, the facts of this case seem to warrant a Manslaughter charge, at worst.  If charged, he’d be forced to articulate to a Texas jury what he felt when he was forced to shoot.  The burden would fall on him to successfully claim self defense.

In this case, as in all criminal cases, prosecutors have the right to use their “prosecutorial discretion” and choose not to bring charges.  They may want to use it in this case depending on the evidence that’s presented to them.  I recommend that they give the father a “King For A Day” letter and allow him to come in to speak with them without anything that he says being used against him.  Let prosecutors hear what the father’s version is.  Based upon that, they may choose not to proceed.  Without me eyeballing the father and hearing what he has to say, there’s no way I can fairly opine that charges should or shouldn’t be filed.

Let’s say you see a violent crime being committed.  As a “good citizen” you call Miami-Dade Crime Stoppers and report the tip.  You only feel comfortable providing the information because they assure you that all tips are anonymous.  You then pick up the newspaper and learn something about a Miami judge ordering tipster information to be released.  Could your identity be next?

This week, Judge Victoria Brennan ordered Richard Masten, the executive director of Miami-Dade Crime Stoppers to turn over information provided to the tip line concerning a cocaine possession case.  The judge ruled that the law mandated that he turn over the information that was being requested by the defense attorney representing the alleged cocaine possessor.

When Masten appeared before Judge Brennan, he refused to turn over he information.  Additionally, he ate the paper containing the information while sitting in court.  In explaining his actions to the media, Masten revealed that he significantly values his assurance of anonymity to tipsters who provide invaluable information that helps solve serious crimes in Miami.  He vows to never compromise that promise.

Judge Brennan ordered him to provide the tip, without revealing the source.  The defense lawyer who requested the information claims his request was not intended to identify the individual who gave the tip.

Masten didn’t feel comfortable showing the judge the tip so that she could consider whether it was appropriate to release it.  He said that the process couldn’t be trusted and that agreeing to show it to the judge would be a “slippery slope.”  He clearly does not want to agree to do anything that in any way could lead to the compromise of the tipster’s identity in the cocaine case and/or any future criminal cases.

In holding Masten in contempt, the judge ruled, “The court would be remiss to turn a blind eye to a flagrant refusal to honor a court order, and give more value to an individual’s opinion on what is right, rather than to the dictates of the laws enacted by the people of Florida.”

Masten must appear in court again this week, when he could be sentenced by Judge Brennan to up to two weeks in jail.  Masten’s response is, “I’ll bring a toothbrush and some pajamas in case I do.”

My analysis on this begins with the statement, “This is a tough one.”  Let’s assume for a moment that Judge Brennan’s take on the law is accurate.  If so, the judge was obligated to order him to turn over the information to her, or potentially face reversal on appeal.  Additionally, she wasn’t ordering that the information be turned over to the defense, which would have made it a public record.  At this point, she merely wants to look at it to see how she could have satisfied the requesting defense attorney while maintaining the anonymity of tipsters.  On the other hand, Masten makes an argument that I admire very much.  Because he can’t be 100% guaranteed that his disclosure to only the judge wouldn’t then result in its release to the public, he was forced to take this extraordinary act of defiance.  I like the fact that he values his word so much that he’s willing to surrender his liberty for it.  The Miami-Dade Crime Stoppers Program, which has been helping to solve serious crimes since its inception in 1983, is an important component to catching violent “bad guys.”

So, how will this play out in court this week?  I’m not certain.  At play, amongst other things, is ego, the law, the media, and principles.  With all those variables, it’s tough to accurate predict how this will end.  I am certain that Masten won’t back down, nor should he.  At the same time, I understand why the judge shouldn’t back down.  She’s obligated to follow the law.   For many reasons, I certainly hope that the parties can all meet in the judge’s chambers and calmly come up with another alternative.

INTRODUCTION

You come home from a wonderful evening out on the town to find the front window of your home smashed.  When you go inside, it becomes clear that you’ve been burglarized.  Thousands of dollars of personal possessions were stolen from inside of your dwelling.  You want the guilty burglar caught ASAP!  Cops offer a glimmer of hope after they reveal to you that the perpetrator left fingerprints inside your home.  Hope turns to excitement when you learn that the lifted fingerprints were entered into the Florida Department of Law Enforcement’s (FDLE) fingerprint identification system and they matched to Bobby Burglar, a career criminal.  Your excitement is suddenly dimmed when you read an article in today’s paper alleging that Florida’s fingerprint system is flawed.  Will Bobby Burglar escape justice?

ANALYSIS

The Florida Department of Law Enforcement’s (FDLE) automatic fingerprint identification system (AFIS)  was supposed to provide perfection when it came to fingerprint matches for Florida law enforcement.  What recently released documents actually reveal is that the fingerprint system failed many early tests.  Worse, the technical problems that the AFIS is experiencing, is causing delays in investigations and arrests across Florida.  Even worse than that, there are reports that a number of suspects weren’t properly identified during system searches and, worse, criminal cases using fingerprint evidence could be called into question.
The fingerprint system was created by Motorola and cost $7.4 million to make.  By December of 2012, the FDLE had shelled out an additional $9.2 million on the system, way beyond the department’s estimated maintenance budget.  The worst part about it was the problems weren’t solved, even with the extraordinary amount of extra money thrown at the system.  

FDLE is blaming the many problems on increased usage and demand.  One of the original engineers for Motorola who oversaw the creation of the fingerprint system has filed a whistleblower lawsuit against Motorola alleging that the state was defrauded.  He blames FDLE project managers who didn’t do what they were supposed to, naively accepting whatever Motorola gave to them.

If the fingerprint system isn’t working properly, then another one of the most significant concerns is that it could mean that employers conducting background checks, including people supervising children, could have produced inaccurate results.  Additionally, if fingerprint evidence is used to prosecute a defendant, and the system is faulty, prosecutors will have to disclose that damming fact to defense attorneys, who invariably will use that to their clients’ benefit.  In the worst case scenario, prosecutors will have to take another look at all cases where fingerprint evidence was used to convict someone.  Countless criminal cases may be jeopardized.   

CONCLUSION

The problem with the FDLE’s fingerprint system is potentially an enormous one.  If what is being reported is true and supported by evidence, numerous criminal cases may be adversely impacted.  If the only evidence placing Bobby Burglar at the scene of the crime is the fingerprint evidence, then he may beat the rap on this one (assuming the system properly identified him in the first place).

INTRODUCTION

This really happened, recently. Brandy Burning, a single mom, was unlawfully driving in the HOV lane. That caused Broward County, Florida sheriff Lt. William O’Brien to pull her over. After some brief conversation, Burning then said the following to the deputy, “Oh, I forgot to tell you I was recording our conversation.” O’Brien then informs her that she has committed a felony and demands the cellphone. Burning refuses. O’Brien then climbs into the car from the passenger side and attempts to forcefully take her phone. Burning was arrested for the traffic infraction and resisting arrest. She wasn’t charged with any crimes related to the recording. Ultimately, prosecutors dropped all charges. Now, Burning plans on filing a law suit, alleging battery, false arrest and false imprisonment. She calls her experience “traumatic,” after spending a night in jail and sustaining bruises and scrapes during the incident.

This case raises two important issues. First, was the recording of her police encounter unlawful? Second, will she win her false arrest/civil lawsuit?

THE LAW

Florida is known as a “two party consent state.” That means, in order to lawfully audio record another, one must have the other person’s consent. In fact,
Florida statute 934.03 makes it a felony to audio record another without their approval. On the other hand, statute 934.02(2) permits a person to record public events where the one recorded does not have a “reasonable expectation of privacy.” Both Florida State courts and Federal courts have repeatedly ruled that on-duty police officers who are performing their duties in pubic do not have a reasonable expectation of privacy. So what does this mean? Well, it’s mirky. Cops have a statute to point to upon which to justify a felony arrest. On the other hand, one can argue that it appears the law permits one to record a cop in public as long as that person isn’t obstructing the officer in any way, because the officer has no expectation of privacy.

What do I advise? Until the Florida Supreme Court rules on this issue, and/or until cops stop arresting people for this, I instruct folks to error on the side of caution and not record. If, on the other hand, you’re one of the few who doesn’t mind spending a dozen or more hours in jail for what you may correctly feel is lawful conduct, then go for it. While you’re sitting in that hell hole, take comfort in knowing that your charges will most likely be dropped by prosecutors.

CIVIL LAWSUIT

The next question is whether Brandy Burning will prevail in her false arrest/civil law suit. The answer is “probably not.” First, as I’ve stated publicly on numerous occasions, “If it was easy to sue law enforcement, they’d all be bankrupt.” The law makes it very difficult to win a civil suit against “cops behaving badly.” Florida statute 768.28 makes it clear that on duty cops are immune to lawsuits unless they acted in “bad faith, or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.” The reality is that it is extremely challenging to prove that a cop acted with a “malicious purpose” or “willful and wanton disregard.” Even if it can be proven that an arrest was unlawful and thoroughly unjustified, a litigant shouldn’t expect to win the lawsuit. Courts have ruled that an unlawful arrest doesn’t necessarily equal “malicious purpose” and/or “willful and wanton disregard.” Furthermore, let’s just say it can be proven that the officer acted with “malicious purpose” or “wanton and willful disregard,” Florida statute 787.02 precludes punitive damages and sets a cap on damages that can be recovered. That makes it very difficult to even find a top notched attorney to pursue the case.

In federal court, a person suing must show, under 42 USC 1983, that the officer violated
“clearly established constitutional rights of which a reasonable person would have known.” Arguing that audio recording a police officer is a clearly established constitutional right is a tough sell. Additionally, it will cost the plaintiff a lot of money to pursue that argument. That’s not to say that it won’t work. It’s just a very costly and challenging endeavor.

In applying the law to Brandy Burning’s civil lawsuit, I believe the first hurdle she might not get over is in trying to prove that her arrest was unlawful. The officer will point to the felony statute as justification for her arrest, alleging that he didn’t give her permission to record him. Even if her arrest was unlawful, she’s going to have an even tougher hurdle to get over in proving that that the officer’s actions were solely the result of “malicious purpose” or “willful and wanton disregard.”

CONCLUSION

Unfortunately, I don’t expect cops to stop arresting people who audio record without permission. Fortunately, I don’t expect prosecutors to stop dropping charges stemming from those arrests. Until this all get’s resolved by the Florida Supreme Court, as I expect it will in the not so distant future, I think it’s best to avoid the pokey by keeping your recording devices on “off” during police stops.

I’ve been cringing a lot lately.  It seems most of the time when I hear folks, including so called “legal experts,” provide opinions concerning the Dunn murder trial, my body physically reacts.  I’m amazed at how many passionate and elegant speakers are disseminating misleading and even, inaccurate information concerning this “high profile” case.  I wanted to take a moment to provide you with my take on it.  There are some important lessons that can be learned.  Take what you like and leave the rest.

Lesson One

Trials aren’t about justice.  I subscribe to Aristotle’s definition of justice, which is, “Like cases being treated alike.”  Within a short period of time into my two decades in the criminal justice arena, I realized that there was no justice.  While that was the goal for some, I didn’t see that occurring as a rule.  The outcome of criminal cases hinges upon a myriad of factors.

The trial of Michael Dunn was never about one side winning and another losing.
Dunn was convicted of four charges — including three counts of attempted murder — in a November 2012 shooting that killed Jordan Davis, 17, as he sat in an SUV at a Southside gas station with three other black youths.
Dunn will likely spend his remaining life in prison. Davis’ life remains lost.
Equally haunting, the jury was deadlocked on whether Dunn was guilty of first-degree murder in killing Davis, who got in an escalating verbal dispute with Dunn — a middle-aged white man — after Dunn asked the teens to turn down their loud music.
The mistrial on that charge means there’s still a troubling lack of closure.
It leaves us no closer to resolving this question: Why did Dunn feel compelled to fire 10 bullets at a vehicle containing four youths who were unarmed?
But Dunn’s trial and Davis’ death have provided lessons that our community and society must be willing to embrace and face head on.
INCIVILITY SHOULDN’T MEAN DEATH
Many in our community firmly believe Jordan Davis actually played a role in his death — that, somehow, the teen’s mouth caused his killing as much as Dunn’s gun.
They suggest that if only Davis had been more civil, more respectful, after Dunn asked the youths to turn down the music — a request Davis’ friend complied with — he would be alive today.
They insist that if only Davis hadn’t ordered his friend to turn the music back up — and then cursed at Dunn — things wouldn’t have reached a point where Dunn shot him.
Related: Remembering Jordan Davis for his life, not death
This sentiment is breathtaking in its insensitivity. And it devalues the young life that was lost.
Yes, Davis did speak to an adult in a disrespectful manner.
For that, the teen deserved a stern lecture or two chastising him for his lack of respect.
But should merely “being mouthy” or showing immaturity justify being killed?
No. Rudeness is not a capital offense.
SECRECY WAS UNNECESSARY
The jurors in the Dunn trial were given a massive burden. They were called on to weigh wildly conflicting testimony and potentially confusing charges in a highly charged case with racial overtones.
Those 12 people deserve our thanks and admiration for spending some 30 hours in grueling, careful deliberation.
Yet the fact remains that we still effectively know nothing about how the jurors were picked for the Dunn trial.
And that’s largely because of acting Circuit Judge Russell Healey’s overzealous use of secrecy during jury selection.
The public was deprived of being as fully informed as it should have been during a major moment in Dunn’s trial process.
Healey was responsible for depriving the public of that right. And while the trial has ended, the judge’s secretive actions remain just as wrong and indefensible.
RACIAL PERCEPTIONS EXIST
Here’s another lesson from the Dunn trial: Racial perceptions and stereotypes deeply shape how many of us perceive black youths.
When Davis and his three friends were sitting in their Durango — playing rap music at a high volume — they had simply stopped to buy gum before heading out to meet girls.
But Dunn perceived them to be four “thugs” who represented a looming threat to his life and that of his fiancee.
Would Dunn have had the same fears and perceptions if the four youths were white?
Or if aggressive speed metal music was blasting from their SUV?
The Dunn case clearly shows the stark gulf that often exists between perception, reality and black youths.
We need to acknowledge that rather than dismiss it.
WITH GUNS COMES RESPONSIBILITY
Dunn had a concealed weapons permit for the 9mm gun used in the shooting.
That leads to another lesson we must take from the Dunn trial: Citizens who have been given the right — the power — to carry concealed weapons have an obligation to hold themselves to higher standards around others.
During his testimony, Dunn acknowledged that he kept exchanging words with Davis after the initial disagreement.
By any standard, a middle-aged adult should possess enough self-control to refrain from ramping up a shouting match with a teen, particularly one in a clearly emotional state.
But when that middle-aged adult is also a citizen given permission to carry a concealed weapon — as Dunn was — they should be guided by an even higher level of personal restraint in their interactions with others.
Dunn clearly wasn’t on that deadly November 2012 night.
CHANGE THE STAND YOUR GROUND LAW
Katherine Fernandez Rundle, Miami-Dade state attorney, outlined logical changes to the law in 2012 in an addendum to the governor’s task force on the Stand Your Ground law.
“The statute has removed all requirements of reasonableness on the part of the person who uses deadly force …” she wrote.
“The statute should be amended to clearly indicate that it does not apply to someone who is the initial aggressor.”
The law as it is being interpreted has empowered unreasonable violence.
A man who fears for his life is allowed to defend it.
But what if that fear is based on an imaginary threat?
What if the shooter believes every black youth playing loud music is ready and willing to kill him?
The verdict has likely ended Michael Dunn’s life as a free man. And it won’t alter the fact Jordan Davis will never reach manhood. Nothing will change those facts.
But we can take lessons from the case that can allow our community and society to change how we treat and view each other, and for the better.
We should heed them.

Source:

Lessons to learn from the Dunn case   (Florida Times-Union)

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