I try not to do fear. Yes, taking on fear is a choice. I tell myself that fear is nothing more than an acronym meaning “False Evidence Appearing Real.” Still, this Ebola outbreak has me rather concerned, with good reason. It’s the largest Ebola outbreak on record. Health officials are struggling to identify how many people have had contact with Thomas Eric Duncan, the Liberian man who is now undergoing treatment for Ebola in Dallas, Texas. The thought of how many, coupled with the ripple effect, could justify the fear that so many are feeling at this moment. It is in large part due to that fear that so many are calling for vigorous prosecution of Duncan, in spite of the fact that he is currently in critical condition. Should he be prosecuted? The answer is, “Definitely…maybe.” It all depends on what reported facts are true.

Liberian officials have already made the aggressive move of announcing that they intend to prosecute Duncan. They passionately believe that during an airport screening in Liberia, he lied about having come in contact with someone who was infected with Ebola. Duncan claims that while he helped a woman to a taxi, he believed that she had a pregnancy-related illness. According to the AP, that woman later died of the Ebola virus. Duncan was able to pass a screening at the airport in Monrovia because he didn’t demonstrate any fever and/or other symptoms associate with the virus. What is not in dispute is that Duncan did get sick just several days after arriving in the U.S.

If Duncan knew that the woman that he came in contact with had Ebola and then lied about it, he should be prosecuted. If, as he alleges, he didn’t know that she had the virus, then they need to back off. Proving that he knew that her symptoms were that of Ebola and not pregnancy related as Duncan alleges, will prove to be a challenging task.

What I think this potential prosecution is more about is precedent. Liberia desperately wants to keep travel open between their country, the U.S. and others around the globe. The only way that will happen is if all countries feel that Liberia is properly screening passengers who leave their region. Liberia figures that if they don’t come down hard on Mr. Duncan, then they could be perceived as having worthless protocols in place. Many argue that Liberia is only making this announcement because they want to appease the U.S., a country with whom they have vital economic ties.

It’s likely that Texas also is considering bringing criminal charges against Duncan. Sources are reporting that Texas is currently investigating Duncan for intentionally exposing people to the Ebola virus. Many compare his actions to someone who knows they have AIDS and then infects another through sexual contact.

While I believe that an investigation is definitely warranted, I’m not confident that a Texas criminal prosecution is justified. Without additional facts not previously released, I just don’t know how they will be able to overcome Duncan’s anticipated argument that he didn’t even know he had Ebola until days after arriving in the U.S. Texas prosecutors will argue that the primary, if not exclusive reason why he came to the U.S., was because he was desperate to receive the phenomenal medical treatment that our great country provides. All those who have been treated in the U.S. have survived. If he did come here because he knew he had Ebola and wanted our medical treatment, I wouldn’t blame him. Consider the alternatives.

As a practical matter, what happens if Texas does proceed with charges? Think about it. Like all defendants, he would be handcuffed and then taken to the jail for processing. That can’t happen. He has Ebola!

So, as much as I pride myself as someone who doesn’t do fear, I readily admit my concerns and fears on this issue. There are tens of thousands of people currently exposed to Ebola right now. Many are predicting that number to rise to approximately 1.5 million in the very near future. With infected folks eager to find their way to the U.S. for treatment, I, admittedly, remain very concerned.

Most of us have said it and/or thought it, at some point. “Why the hell does it take so long to kill death row inmates?” In some instances, it literally takes several decades from sentencing to execution. Many have called this a miscarriage of justice. The majority of Americans want the process to speed up. For one North Carolina death row inmate, had the public gotten their wish, he would have been put to death a long time ago. Had that happened at our insistence, then today there’d be blood on all of our hands.

The longest-serving North Carolina death row inmate and his half-brother, who was serving a life sentence have been declared “innocent” by both the judge and prosecutor now handling the case. They had spent more than 30 years in prison for a rape and murder that they did not commit.

Leon Brown and Henry McCollum were just 15 and 19 at the time they were arrested for the abhorrent crimes in 1983. The victim was just 11-years-old.

DNA evidence absolved the innocent defendants of any link to biological material that was collected at the scene of the crime. Additionally, the DNA evidence created a positive hit on a known sex offender from the same small town in which the crime was committed. That sex offender lived just feet away from the field in which the victim’s body was found.

The conviction was based almost exclusively on alleged confessions from both men. Lawyers for the falsely accused illustrated to the court that both have significant intellectual disabilities. The two were no match for law enforcement, who isolated them for hours until they coerced their confessions. Both defendants erroneously believed that they would be let go if they simply confessed.

Unfortunately, here we go again. Another case involving innocent defendants. Another case highlighting how faulty the Criminal Justice System can be, at times. Also, this case highlights the power of DNA evidence.

While we can’t ever go back in time, we can learn from this and other similar cases. Bottom line, alleged confessions don’t always represent the truth. Prosecutors don’t always send the guilty parties to prison. We must continue to increase our level of awareness concerning criminal cases and understand that things are not always as clear cut as they appear

As a former burglary victim and father of three young children, I especially feel for Ray Allen and his family. I thoroughly understand why they’re demanding the arrest and maximum charge for all intruders who brazenly entered their home while they slept. What an extraordinary violation!

As a result of the media attention on this case, both the Coral Gables Police Department and the Miami-Dade State Attorneys Office have come under criticism for announcing that the most serious offense for which they could be charged is misdemeanor trespass. Some, including a few of my colleagues in the criminal arena, have erroneously suggested that there’s sufficient evidence to charge the intruders with burglary (a felony). They are mistaken and/or misinformed. Unless there’s proof beyond a reasonable doubt that the offenders intended to commit a crime like theft and/or vandalism while unlawfully in the home, the appropriate charge must be trespass. The law specifically requires proof to be more than mere speculation. Absent additional evidence, prosecutors and law enforcement officers’ hands are tied. A judge who was following the law would be required to dismiss burglary charges in this case, absent additional evidence.

So what’s the harm with overcharging them? One could make the argument that their conduct warrants the most serious charge possible. Why not just charge them with the burglary, as some of my colleagues have suggested, and then plea bargain the case down? The reason why that should never be done is because it would be unlawful. Additionally, the minute we allow law enforcement and/or prosecutors to overcharge suspects absent sufficient evidence is the beginning of the end for the criminal system. While it might be ok with you in this instance, imagine if it was done to you and/or someone you cared about under different circumstances. How would you feel if your careless driving (a mere traffic infraction that you could pay) turned into a reckless driving (a criminal offense, punishable by up to 90 days in jail) merely because the officer was upset with your attitude and/or didn’t know any better?

These intruders need to learn from what they did. They also should be punished for their actions. However, cbarging them with burglary with these facts would set a horrible legal precedent and would result in a miscarriage of justice.

My parents would be deemed career criminals by today’s standards. That’s not to suggest that I believe that they ever committed any criminal acts. It’s just that the things they did with me and my siblings back in the 1970’s and 1980’s now society calls “child neglect” and/or “child abuse.” I’m referring to the numerous liberties that they took in allowing us to walk to the park by ourselves at a very young age. I’m also referring to the times that we took the public bus without parental supervision and/or wandered the malls alone. This was pre Adam Walsh time here in South Florida, so that type of behavior was engaged in by many loving parents, like mine. Today, those same parental choices would most likely lead to their incarceration.

A Florida mom, just this past week, was stripped of her liberty and charged with felony child neglect after she allowed her 7-year-old son Dominic to walk to the park alone. Mother Nicole Gainey made sure her son had a cell phone for the 10-15 minute stroll. While Dominic was on his solo journey, concerned strangers approached and peppered him with questions like, “Where’s your mother?” Dominic ran off, frightened by the strangers’ inquest. The strangers called the police who approached Dominic at the park and asked him where his mommy lives. That led to the mother’s felony arrest. Officers wrote in their police report that, “Numerous sex offenders reside in the vicinity.” Dominic’s mother is still shocked by the entire situation, believing that he had the maturity to handle the half mile walk by himself.

This isn’t the first time a parent has been arrested recently for allowing a youngster to walk somewhere alone. A couple of months ago, Debra Harrell was arrested and charged with “unlawful conduct toward a child” after letting her 9-year-old daughter play at the park unsupervised while she worked her shift at McDonald’s. Additionally, Child Protective Services were called to investigate an Ohio father who allowed his 6-year-old daughter to walk a few blocks to the post office by herself.

One expert, Lenore Skenazy, author of “Free Range Kids” thinks we’ve become too afraid for our children. She asks, “Are we supposed to lock all our children inside for their safety at all times, and then we’re negligent child abusers if we don’t?” Also, she opines that the idea that there are predators everywhere is a false one. As support for her position, she points to much lower violent crime rates. She also cites a recent study published in an Economist article concerning sex offender laws in Georgia. According to the article, only 5 percent of the people on the registry posed an actual threat to children.

As a father of three children, ages 12, 10, and 8, I don’t currently allow any of them to walk to the park by themselves. My wife and I are not willing to take even a 1% chance that something abhorrent could happen to them along the way. Candidly, while my wife and I recently and reluctantly allowed our 8 year old to play basketball in our front driveway by himself (he’s obsessed with the sport), we aren’t comfortable with it. We’ve seen too many stories about child abductions. An unfathomable nightmare that we want desperately to avoid.

Even though it’s not parenting choices that I would make and/or support, I don’t think that most of these parents who allow their kids to walk by themselves should be arrested. At worst, Child Protective Services should investigate. Once a parent’s level of awareness has been increased, the problem will most likely be solved. Stripping them of their freedom and labeling them as felons, is a too much and in most instances, unnecessary.

Bob Smith reasonably fears for his life.  A man yielding a knife, who is significantly larger than Bob, makes Bob believe that at any moment, he could be stabbed and killed.  Bob chooses not to run for it.  He pulls out a gun from his waistband and blows the perpetrator away.  Seems like a clear case of justifiable use of force. This is Florida, after all.  Bob chose to stand his ground.  There’s just one problem.  Bob is a convicted felon and isn’t allowed to legally possess a firearm.  Does he still have the right to obtain immunity under Florida’s “Stand Your Ground” (SYG) law?

Former Florida State Senator Durell Peaden, who sponsored the original Stand Your Ground legislation in 2005, argues that if, as a convicted felon, one lost one’s right to bear arms, then one shouldn’t have the same protections that “law-abiding citizens should have.”  Many here in Florida agree with Peaden. The Florida Supreme Court will soon address this previously unresolved issue.  They’re reviewing a case that stems from Palm Beach County.  In that case, Brian Bragdon, a 25-year-old convicted cocaine dealer, shot two men outside a strip club.  Bragdon argues that he was defending himself.  Prosecutors, however, maintain that he doesn’t have the right to argue Stand Your Ground against the attempted murder charges because he’s a convicted felon, and, thus, should not have been in possession of a gun.  Two Florida appellate courts have ruled differently on this same issue.  It will take the highest court in Florida to resolve this.

Under the Stand Your Ground statute in Florida, a person is not legally required to retreat from someone and may use deadly force if they reasonably fear death or great bodily harm.  Prosecutors point to a portion of the law that eliminates the right of a person to argue SYG if that person was “engaged in an unlawful activity.”  The purpose for that language was, for example, to prevent a burglar from arguing Stand Your Ground after shooting someone while burglarizing their home.  Prosecutors want to use that language in the statute to argue that felons using guns shouldn’t be able to argue SYG as a defense because it’s unlawful for felons to carry gun, and thus, they, like a murdering burglar, were engaged in “unlawful activity.”

The issue is whether that is a fair interpretation of the law.  Additionally, another issue is whether it’s fair to deprive convicted felons of the right that every other citizen has.  I believe that the higher court will give felons the right to argue SYG.  The felon’s background has little to do with the details of the case for which he is charged. It’s important to note that even if the Supreme Court of Florida gives felons like Brian Bragdon the right to argue Stand Your Ground, it doesn’t mean that a judge and/or jury will buy it.  He still faces life in prison if the facts are tantamount to murder as opposed to self defense.

Here’s another one.  Another story from the criminal arena that will have you shaking your head.  A 19-year-old man from Austin, Texas chose to make and sell brownies and now is facing up to life in prison.  OK, so I’m leaving out a few details.  He laced the baked goods with additional “ingredients” that were intended to get consumers “baked.”  Because he added marijuana and hash oil to the mix, he faces a felony charge with outrageous possible sanctions.  Welcome to Texas.

Texas law enforcement found at the offender’s apartment 1.5 pounds of brownies, digital scales, a pound of marijuana, approximately $1600 in cash and dozens of baggies with hash oil and marijuana.  Police came to his apartment because they received complaints about “marijuana use.”

In Texas, possessing 4 grams of hash oil is enough for a first degree felony charge.  Apparently, this defendant, who had never been arrested prior to this bust, had 145 grams of hash oil.  Hash oil possession results in much more severe sanctions than marijuana.  The THC level in hash is much higher than in marijuana.  It’s actually in the same penalty group as amphetamines and ecstasy.  Additionally, because the defendant used hash oil, prosecutors are permitted to add up the total weight of brownies and tag him with manufacturing and distributing 1.5 pounds of that substance.

This one concerns me.  Without question, the offender deserves to be punished, however, a potential life sentence for this offense is outrageous.  In theory, if he, or another potential offender were to sprinkle a little cocaine into a huge drum containing 10 pounds of beer, he could be charged with trafficking in 10 pounds of cocaine, because the entire contents of the drum would be weighed.  That doesn’t make much sense.

Here’s the good news.  Prosecutors have something called, “Prosecutorial discretion.”  This case cries out for them to use it.  They will hopefully come up with a fair sentence for what he chose to do.  I’m confident that the legislators didn’t intend on this 19 year old, with no priors, to suffer in prison for decades for this offense.  My experience, having been both a prosecutor and defense lawyer for over two decades, is that typically these types of offenders can turn their lives around.  Hopefully, prosecutors will give him a chance to do so on this one.

What do you believe is the appropriate sentence for a man who murders another man in front of his children, then kidnaps and rapes his ex-girlfriend, and then shoots at a cop?  Probation?  Kidding.  Many believe that the ultimate sanction should be imposed for those series of abhorrent offenses.  Well, that’s exactly what the judge did.  Russell Bucklew is currently on Missouri’s death row and was scheduled to die last night.  What saved him?

Justice Samuel Alito of the U.S. Supreme Court temporary delated the execution of Bucklew literally two hours before a lethal cocktail was to be injected into his veins.  The Court is reviewing his case today.  He can still be put to death by 12:01 Thursday as his death warrant is still in effect.  If he exhausts all his appeals by then, he will be killed by the State of Missouri.

So what did his lawyers argue to successfully get the brief stay?  They alleged that a rare illness that Bucklew possesses would make a lethal injection excruciating, and thus, a violation of the Constitution.  Because the State couldn’t show that Bucklew’s allegation was incorrect, they put the execution on hold.  The justices wrote, “Bucklew’s unrebutted medical evidence demonstrates the requisite sufficient likelihood of unnecessary pain and suffering beyond the constitutionally permissible amount inherent in all executions.”  They further wrote, “The irreparable harm to Bucklew is great in comparison to the harm to the state from staying the execution.”

Allegedly, Bucklew suffers from a cavernous hemangioma, a medical condition which creates big masses in his neck and head.  He argued that the tumors could prevent proper circulation of the drugs, which would prolong his death and cause him extreme pain.  That extraordinary pain that he would allegedly suffer, his attorneys argue, would violate the constitution’s protection against cruel and unusual punishment.

Naturally, the mother of Bucklew’s murder victim was very upset by the last minute delay.

I’m shaking my head on this one.  What’s uncontroverted is that his crime was atrocious and cruel.  What’s also not in dispute is that a Missouri jury determined that prison was too good for him and that he had to die.  What has halted that process is that the injection of lethal drugs may cause him some pain, more than permitted under the law?  What?  I’m sure the victim’s family is losing sleep over that, passionately crying, “Please don’t cause him any extra pain!” (That’s what’s called “sarcasm”)  Let me just say this, I think its more “cruel and unusual” to all parties involved to delay this execution based on these grounds then to proceed as planned.  I’m sure there are those who would make the argument that the death process should hurt a lot more than it does.  Regardless of the ultimate decision by the higher court, I do hope they decide this one quickly and justly.

If you’ve got a pulse, you’ll be angered by this one.  Milwaukee County Sheriffs Deputy Joseph Quiles alleges in his official report that he was driving his squad car when he came upon a stop sign.  He claims that he stopped his vehicle and then looked both ways before pulling out.  He then claims that he never saw any headlights when he suddenly struck a car driven by Tanya Weyker.  What happened next is nothing short of unbelievable.

Cops arrested her for five separate charges, including drunk driving resulting in injury.  The injury was actually  to Ms. Weyker, who suffered a fractured neck as a result of the February 2013 crash.  The injuries she sustained were too severe to allow her to perform field sobriety tests and/or even provide a breath sample.

Without any independent witness and/or video evidence, Ms. Weyker would be in a horrible predicament.  Her serious criminal case would be based almost exclusively on the words of law enforcement officers.  Fortunately, more evidence surfaced recently.

An investigation into both the crash and subsequent arrest yielded a video from a nearby surveillance camera.  What can clearly be seen is that Deputy Quiles’ squad car  never made a complete stop.  Weyker wasn’t responsible for the crash, the deputy was!  Additionally, the blood samples of Ms. Weyker taken by doctors at the hospital showed that she had no alcohol in her system on the night in question.  Furthermore, the fact that the headlights to Weyker’s Toyota Camry come on automatically should have been a red flag to investigators that the deputies’ claim that she didn’t have her lights on was meritless.

In spite of the overwhelming evidence of her innocence, it took months before prosecutors decided to drop charges against her.  Additionally, she is still waiting for the state to pay her medical bills for the injuries she sustained in the crash.

I’ve been in the criminal arena as a prosecutor and a criminal defense attorney for over two decades and I’m still angered and frustrated by stories like this.  I’m hoping that prosecutors charge this deputy with criminal offenses.  Additionally, I’m hoping that they demand that he go to jail for his actions.  The message to law enforcement  must be that if you manufacture evidence and/or falsely arrest someone, you must pay with your liberty.  I wouldn’t be opposed to a minimum mandatory prison term for cops like Quiles who attempt to frame innocent citizens.

In my most recent post, I described the miscarriage of justice in the case of New York vs. Jonathan Fleming. Fleming, a 51- year-old convicted murderer, was in the process of serving his 25th year of a 25 years to life sentence when he was recently released.  Turns out, he was innocent, just as he passionately alleged during his trial 25  years ago.

Cases like his make me think about all those other wrongfully convicted defendants.  Additionally, I ponder about those who are on death row, facing the ultimate sanction for crimes they did not commit.  While a single defendant falsely convicted is too many, I wish we knew an exact number.

A newly released study has created quite a stir, not only amongst those in the anti-death penalty community.  According to the study, more than four percent of inmates who are sentenced to death in the U.S. are probably innocent.  The researchers are calling their estimate a “conservative” one, noting that the number of capital defendants who were exonerated over the past thirty years is actually double (8%).  Researchers claim that the purpose of their study was to account for those innocent defendants who, unlike Jonathan Fleming, are never exonerated. 

The authors of the study reviewed the outcomes of the 7,482 death sentences given out from 1973 to 2004.  From that group, 117 were exonerated.  That’s 1.6 percent.  The researchers concluded that at least 4.1 percent of death row inmates would have ultimately been exonerated with sufficient additional time and resources.  That equates to another 200 death row inmates being cleared during those three decades.

Bottom line, innocent people are languishing in both the general prison population and on death row.  The recently released numbers should spark additional renewed dialogue and debate concerning the death penalty and the Criminal Justice System.  I’m not advocating any particular position.  I just want the facts to be out there.

If you’re one of the many who wonders, “How can you defend those guilty people?” then this article is for you.  Once again, another prisoner has been released after newly discovered evidence proves that he was innocent.  The latest defendant is Jonathan Fleming.  Fleming, who is 51- years-old, was in the process of serving his 25th year of a 25 years to life sentence when he was recently released.

In 1989, Fleming was convicted of Second Degree Murder after allegedly shooting, Darryl Alston, a rival drug dealer, on Aug. 15, 1989.  The shooting occurred in Brooklyn, New York.  His defense was very simple.  He unsuccessfully argued at his trial that he was at Disney World in Orlando with his family at the time of the shooting.  His attorneys presented evidence at trial that included plane tickets, video footage and vacation photos.  Prosecutors argued that Fleming could have returned to Brooklyn and shot the victim.  They even entered into evidence a list of 53 possible flights that he could have taken, casting some doubt on the testimony and evidence provided by Fleming’s family members.

The most compelling evidence prosecutors introduced during Fleming’s trial was testimony from eyewitness Jacqueline Belardo, who positively identified Fleming as the shooter.  That same “star witness” later recanted her testimony prior to sentencing, claiming that she identified Fleming solely to receive a dismissal of her grand larceny charges.  Prosecutors alleged that Ms. Belardo was lying.

It wasn’t until June 2013 that the Conviction Integrity Unit (CIU) began examining Fleming’s conviction after attorneys and investigators for the falsely accused brought in new witness statements.  In November, the CIU turned over to the defense police logs showing that their star witness Belardo, was charged with grand larceny after being found in a stolen van.  Law enforcement questioned her for several hours, resulting in her pointing her finger at Fleming.  About an hour later, her charges were dropped and she was released.

The most compelling piece of evidence the CIU turned over to the defense was a phone receipt.  Mr. Fleming paid a phone bill at the Quality Inn in Orlando at 9:27 p.m. on August 14, 1989.  That made it almost impossible for him to have made it back to Brooklyn in time for the 2:15 a.m. shooting on August 15th.  The receipt was never part of the evidence at trial.  The lead detective claimed during the 1989 trial cross examination that he didn’t recall recovering it.  Investigators found the receipt in the case file last year.

Additional new evidence included a report from the Orlando Police Department.  In the report, it was revealed that Quality Inn staff members remembered Mr. Fleming being in the hotel.  At his trial, only family members vouched for his presence in Orlando.  Furthermore, after witnesses to the shooting were re-interviewed, their testimony pointed to a different suspect.

In recommending the dismissal of the charges against him, the prosecutor told Judge Matthew J. D’Emic that had the newly disclosed evidence been available at trial, the “likely outcome of the trial would have been different.”

This case is so troubling for me.  25 years!!!  He went from having a wonderful time with his family hanging with Mickey and Minnie to the abhorrent brutality of a New York prison as quickly as you can say, “injustice.”  Unfortunately, these things happen too often.  The new Brooklyn district attorney Kenneth P. Thompson inherited dozens of wrongful conviction cases when he took office this year.  Additionally, his office is reviewing 50 cases handled by detective Louis Scarcella, who has been accused of using illegal tactics to frame suspects.  Scarcella wasn’t part of the Fleming case.

I think of the many who still languish in prison for crimes that they didn’t commit.  I also think of those whose cases are currently pending that may be convicted as a result of the corruption of a few crooked cops.  I need to remind myself of those injustices and potential future injustices every day to keep me working as zealously as I do for those accused.

Hopefully you’ll think of Jonathan Fleming the next time you ponder, “How can you defend those guilty people?”

 

 

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