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Florida Criminal Defense Lawyer Blog

INTRODUCTION

The discussion began almost immediately after the abhorrent Orlando shooting took place. Should the shooter’s wife face criminal charges? Even before details were released concerning her alleged involvement, numerous members of the “Court of Public Opinion” were passionately crying out for her arrest, believing that she had to have known of his evil plot and/or must have participated in some way. So why hasn’t she been arrested up to this point?

ANALYSIS

INTRODUCTION


The highest court in the land is currently deciding a case that can have an enormous impact on Driving Under The Influence (DUI) cases in Florida and twelve other states. Each of those thirteen states makes it a misdemeanor criminal offense to refuse to blow into a breath machine while under arrest for DUI. The Court is reviewing whether it is unconstitutional to charge someone with a crime for refusing to blow. In their discussions concerning this case, it appears that the Court is looking at DUI breath cases as a whole and wondering whether police should have to first secure a warrant to begin with before requiring someone to blow into the machine.

ANALYSIS

Cops demonstrate their inherent bias through the charges they choose to level. Let’s talk about Sheila and George. Sheila was the trusted bookkeeper for a very successful company. Unfortunately, she wasn’t as trustworthy as the company thought. Over a period of two years Sheila diverted $350 a week of company receipts to her own bank account. George, on the other hand, was a successful black businessman who traveled abroad a lot. On one trip to China he came back through customs with a box full of DVDs. He had the receipt to show that he had paid for them, but customs declared them counterfeit and arrested George.

Sheila could have been charged with approximately one hundred separate counts of grand theft (the amount of each theft over the two-year period was in excess of $300) and could have faced up to five hundred years in prison. Fortunately for her, she was charged with one count of organized scheme to defraud. That’s a first-degree felony punishable by up to 30 years in prison and, in fact, she got off with just probation. Because she was only initially charged with just one criminal offense, her bond was very reasonable. George, on the other hand, could have been charged with just one count of dealing in stolen property. If convicted, he would have faced a maximum penalty of 15 years. Instead, for reasons I still don’t understand, law enforcement threw the book at George, charging him with a separate felony count for each of the several hundred DVD’s in his possession, subjecting him to a possible life sentence. His bond was actually over a million dollars before it was eventually reduced. He escaped the worst, but still went through hell and paid a huge price, both psychologically and financially, before the charges were dropped.

* * * * *

This isn’t an article about whether the two men featured in the documentary, ‘Making a Murderer’ are guilty or innocent. While I do have strong feelings concerning the handling of the criminal cases of both Steven Avery and his Nephew Brendan Dassey, I would prefer to focus on something different. In this article, I’m choosing to focus on something very positive that came from the documentary.

One thing that the documentary featured was how Steven Avery was convicted of rape, in spite of his innocence. Examples of these miscarriages of justice happen too frequently and often fail to get the media attention that they deserve. How often? Well, in a report just released, a record breaking number of convicted felons were exonerated in 2015. Most were serving significant prison time for crimes that they had nothing to do with.

According to the report, created by the National Registry of Exonerations at the University of Michigan Law School, 149 people were exonerated last year. Each one served an average of 15 years in prison prior to being released. Of the 149 who were falsely accused, 54 were serving time for murders that they didn’t commit. Five of those exonerated were on death row, awaiting their date with the death chamber.

In a ruling handed down yesterday, The Supreme Court provided hope to many prison inmates who were sentenced as teenagers to mandatory life in prison without parole. They will now be given the opportunity to argue why they should be released from incarceration.

The decision, made by the highest court in the land, expanded a 2012 ruling that made it unconstitutional to incarcerate juveniles for life without the possibility of parole. The ruling must now be applied retroactively, providing relief to approximately 1,200 to 1,500 inmates. Justice Kennedy, who wrote the latest opinion, indicated that those inmates should be given the opportunity to argue for parole at their re-sentencing hearings.

The 2012 case was brought by Henry Montgomery, who as a teen was sentenced to life without parole in Louisiana in 1963. He was 17 years old when he shot and killed a law enforcement officer. Now 69, Montgomery believes that he rehabilitated himself in prison and deserves to be considered for parole. The Louisiana Supreme Court ruled against him, however, the Supreme Court ruled in his favor, declaring that the 2012 ruling is retroactive.

This ruling is epic! The United States Supreme Court ruled this week that Florida’s death penalty law is unconstitutional. The highest court in the land found, amongst other things, that Florida courts were violating defendants’ Sixth Amendment rights by ordering death in the manner in which they were.

What the court had a problem with was the fact that judges, not juries, were the ones making the ultimate decisions in capital cases. While jurors deliberated and made a recommendation to the judge, the judge would decide on his/her own whether the person should live or die. The Court found that a jury’s mere recommendation is not enough.

The ruling was good news for Timonthy Lee Hurst, who was convicted of stabbing his co-worker in 1998. His case will now be remanded back to the lower courts to decide what his penalty should be. It will now be exclusively up to the jury to decide his fate.

THE HYPOTHETICAL

You’re driving home from a lovely night out on the town when you see those dreaded police lights behind you. You hope the officer is just trying to around you, however, you quickly realize that he wants you to pull over. As you think of all the reasons why the cop may have interest in you, you remain calm knowing that you weren’t speeding and that you’ve only had a couple of drinks over the course of a several hour dinner. The officer approaches and immediately smells the odor of an alcoholic beverage protruding from your breath. He asks, “Have you been drinking?” After you admit to the couple of drinks you consumed over dinner, he asks you to perform roadside “tests.” (We call em’ “exercises”) In spite of feeling fine and thinking you performed well, you are told that you are being placed under arrest for DUI (also known in other states as DWI and more commonly referred to as “Drunk driving”) You’re eager to take a breath test to prove the officer wrong. Unfortunately, after you blow twice into the machine (they call it an “instrument”), the officer’s eyes light up. In amazement, the officer announces that your breath reading is .40, which is approximately 5 times the legal limit. Regardless of your passionate pleas of innocence, you’re booked into the county jail. After you post bond and are released after approximately 18 hours of custody, you contact me, an attorney with expertise in DUI defense. You feel comforted knowing that I believe you, that there must be another explanation of the high reading other than extreme alcohol consumption.

ANALYSIS

In response to the escalating rates of teen suicide, school shootings and cyber-bullying, Wisconsin has passed an ordinance imposing fines on parents of kids who bully. It’s not a criminal charge. Rather, it’s a civil ordinance which permits a fine of $124 against parents whose kids repeat bullying behavior after being warned of their conduct. The Wisconsin police chief said that he’s in favor of the new ordinance because it puts pressure on the parents, the ones whose job it is to raise the kids. He doesn’t believe it’s the teacher’s obligation to prevent kids from bullying. He explains that teachers’ energy should be limited to the challenging task of teaching our kids.

The way that this ordinance will be enforced is as follows. First, police will identify those kids who have engaged in repeated bullying within a 90 day period. The parents will be notified and asked to work with law enforcement to correct the behavior. If the bullying persists, then their parents may be fined.

The analogy made by the police chief is that it’s like if a kid breaks something, their parent would be held responsible for it. He wants to see parents taking responsibility for their kid’s behavior. School principals seem to be embracing the ordinance.

THE FACTS

36-year-old mother Qumotria Kennedy was recently a passenger in a vehicle that was pulled over after the driver allegedly didn’t come to a complete stop at a stop sign. Though Kennedy wasn’t doing anything wrong, police demanded her I.D. and learned that she had a warrant for her arrest out of Biloxi, Mississippi for failing to pay $400 in court fines. The fines were for traffic tickets that she failed to pay in 2013. Back then she told her probation officer that she was too poor to pay the fines and also, didn’t have any way to secure the funds from anyone. Ms. Kennedy worked in downtown Biloxi as a baseball field cleaner. She was earning less than 9 grand annually. For a single person, that is significantly under the poverty level. It’s important to note that Ms. Kennedy supports her two dependent children.

In spite of pleading poverty to her probation officer, Ms. Kennedy was warned that if she didn’t come up with the full amount of all the fines that she owed, in addition to the $40 monthly probation fee, she would be arrested. True to her word, the probation officer sought a warrant to arrest Ms. Kennedy once it was clear that the court fines and fees weren’t being paid.

No. There you have it. All my clients aren’t innocent. No beating around the bush from me. I won’t give you that frequently offered smug line, “All of my clients are innocent…until proven guilty.”(Even though they are legally innocent) As a criminal defense attorney, I do represent numerous “guilty” clients. “How can you defend those guilty people?”, many have asked. The answer is, “It’s actually easier to defend someone who is guilty.”

To understand what I’m saying, imagine someone you care about was accused of a crime that she/he did not commit. Imagine feeling powerless over the police, prosecutor and judge. You want so desperately to make the charges go away, however, you can’t. Sleepless nights, stress, and anger all accompany this living nightmare. Who do you turn to? Me. While I can’t guarantee any particular result, I take on representation of your innocent loved one with the promise that, “I will do all that I can do obtain the best possible outcome under extremely challenging circumstances.” In spite of indicating that you understand that I cannot pull a “David Copperfield” and make the charges disappear, you don’t really want the “best possible outcome.” In your mind, anything short of the charges being dropped would be a miscarriage of justice. Well, that energy and pressure falls on me. While I’m always up for the challenge, I nevertheless am constantly feeling the daily pressure to keep doing the next right thing in order to obtain justice for my clients. One of the many initial challenges that I face in dealing with innocent clients is that most prosecutors and judges don’t believe that my client is innocent. You ask, “But what about the presumption of innocence?” Ha! That only exists in cheesy television law dramas. In reality, most prosecutors and judges believe that if a person was arrested, they must be guilty. Similarly, most potential jurors typically share the same philosophy. I prove that every time I’m picking a jury at trial. Invariably, I ask the following questions: “Have you ever driven by the scene of a crime and seen someone who had been handcuffed by police?” (After most jurors respond, “Yes”) I next ask, “Let me guess, your thought at the time was, “Why are they arresting that sweet innocent person?” Many jurors laugh at loud after hearing me say that. I then say, “That’s not how you feel. Rather, you think, What did that guilty person do?” I then challenge them with the following, “Knowing that my client was one of those persons who once wore handcuffs and was brought to jail, just like those arrested persons you’ve seen in the past at the scene of a crime, how can you believe that he is innocent? (As the law requires) I study the looks on their faces. The ones who give me a, “You make a good point” look, I move to strike. The ones who fire back with, “Well, just because their arrested and handcuffed doesn’t mean their guilty,” are the jurors who I want to hear the case.

The feeling of fighting for an innocent client and ultimately being able to get the charges dropped by prosecutors is a spectacularly rewarding experience that is almost indescribable. I feel like I’ve been a part of something wonderful. My feeling after jurors acquit my innocent clients is a bit different. Instead of feeling relief after the not guilty verdict, I am often consumed with anger. I think, “You see prosecutor? This case never should have gone to trial. You should have dropped these charges. My client shouldn’t have gone through the extraordinary financial and emotional strain of a trial. You should have done the right thing months ago when I passionately pleaded with you and shared evidence that supported innocence.”