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Florida Criminal Defense Lawyer Blog

Two of the six officers charged in Baltimore, Officers Edward M. Nero and Garrett E. Miller, are alleged to have committed the crime of false imprisonment against Freddie Gray. The prosecutor’s theory is that Gray’s arrest was unlawful because the knife that police seized from Gray’s pants pocket is allegedly legal under Maryland law. In charging documents, prosecutors allege, “The knife was not a switchblade knife.” Rather, the knife was allegedly one that folded into the handle, and thus, perfectly legal to possess.

The defendants argue that, contrary to what prosecutors maintain, there is no false arrest here because the knife was illegal to conceal. Nero’s attorney has requested to inspect the weapon. He wants to show that while not a switchblade, the pocket knife does have spring action, which would make it unlawful under Baltimore law. If that’s correct, then there is no case here and the only one who arguably committed a false arrest would be prosecutor Marilyn Mosby.

I don’t believe this case should hinge on whether the knife was lawful or not. The issue for me was whether the officers intended to falsely arrest Freddie Gray. In other words, if prosecutors can show that the officers knew the knife was lawful and that Gray had committed no crime, yet chose to arrest him anyway, then there may be merit to the prosecutor’s case. However, that’s not what was alleged by the prosecutor at the press conference when the charges were first announced. I have no reason to believe the prosecutor chose not to reveal her best evidence when addressing the metaphorically mostly blood thirsty, pitchfork carrying crowd.

Let’s assume then that the officers made a mistake in good faith. Therefore, to me it appears that the officers were stripped of their liberty because they weren’t perfect. It appears that the prosecutor has zero tolerance for officers making mistakes. She must expect all officers to be familiar with the literally hundreds of different makes and models of pocket knives that are on the street and to be able to conclude definitively within a matter of minutes with 100% accuracy whether a pocket knife is lawful or not. So many pocket knives, so little time. There’s the Spyderco Delica, the Kershaw Ken Onion Blur, Buck 110 Folding Hunter, Victorinox Champion Plus and countless more. Dare you make a mistake. You will pay for it with your livelihood and your liberty.

Having practiced in the criminal arena for over two decades, I’ve seen more than a dozen cases where officers in good faith arrest someone erroneously believing a knife was unlawful. I suspect there’s countless other officers around the U.S. who make that same type of mistake every year. What has happened in every one of those cases is that the charges are eventually dropped by prosecutors who research the weapon to determine its legality. What always happens to the cop? Nothing. He certainly isn’t arrested for an honest and/or possibly negligent mistake. I’m outraged that these cops are being treated any differently than the numerous cops who have made the same honest mistake before or after them. Aristotle defined justice as, “Like cases being treated alike.” “Justice for Freddie Gray” sounds good. “Justice for all” sounds even better.

Imagine that the police allege that you committed an extremely “high profile” violent act against someone. The victim’s attorney and the public are demanding that you are immediately stripped of your liberty and charged with the crime. Because you believe that you are innocent, you don’t want the charges filed by the prosecutor evaluating the case. You are praying that the screening process is fair. Immediately after the prosecutor’s alleged “thorough and independent investigation,” she decides to file charges against you. While questioning the fairness of the process, you then learn that the victim’s attorney donated thousands of dollars to the prosecutor’s campaign. He even served on her transition committee. Additionally, it comes to light that your prosecutor is married to a high profile councilman who represents the people from the jurisdiction where the crime allegedly occurred and from where the victim resides. Does this process seem fair? Does the prosecutor give off the image of impropriety?

The facts presented in the hypothetical above mirror those present in the high profile Baltimore criminal case involving six police officers, each charged with offenses relating to their alleged mistreatment of Freddie Gray. The prosecutor Marilyn Mosby, who made the decision to file serious criminal charges against the officers, did accept $5,000 in campaign donations from the victim’s family attorney William Murphy. He also worked with her on her transition committee. Her husband, Nick Mosby is a city councilman who represents the people from the jurisdiction where the crimes allegedly occurred. Additionally, the victim was one of his constituents.

Anyone who doesn’t think that, at a minimum, there’s the image of impropriety is either naive or being intellectually dishonest. If you, or someone you love were faced with similar facts, you’d be passionately crying foul. If the same allegations were made about a judge presiding over these defendants’ criminal case, the judge would most certainly have to recuse him/herself. I’m not suggesting that the charges weren’t warranted. They may have been, however, see some of my concerns: http://www.floridacriminaldefenselawyerblog.com/2015/05/baltimore-criminal-case-not-a-slam-dunk.html I’m also not suggesting that Mrs. Mosby can’t be fair. What I’m simply pointing out is that if there was another prosecutor who was more “independent” and free from the above described relationships, the process would have to be perceived as more fair. I still don’t see the down side in bringing in an independent prosecutor to review Mrs. Mosby’s charging decisions.

I’ve learned from first hand experience that prosecuting cases is not an easy job. What’s extremely challenging is determining what conduct is and isn’t criminal. Also difficult is determining what specific charges, if any, should be levied that fairly and appropriately reflect the crime(s) committed. Filing decisions made by prosecutors are almost always scrutinized and often criticized. Because of that, it’s imperative to ensure that the process is as free from the image of impropriety as possible. Unfortunately, in the Baltimore case, the process appears to be tainted. An independent prosecutor reviewing the charges would go a long way towards eliminating that cloud of impropriety that currently hangs over this case.

I couldn’t believe it when I heard it. I was channel surfing and stopped on one of the major news channels. A well respected analyst passionately stated that the criminal case against the six Baltimore police officers was a ‘slam dunk.’ I immediately shook my head in disbelief. I know one thing is certain about this case. It’s not a slam dunk and convictions for all the officers is not a certainty. I join many of my colleagues in questioning whether the charges brought can be legally proven. Because all of the facts have not been released, I’m not suggesting that the charges aren’t warranted. I’m simply suggesting that based upon what has been released to date, there’s good reason to question whether the charges can be proven beyond and to the exclusion of every reasonable doubt.

Let’s start with the second degree murder charge brought against officer Caesar R. Goodson Jr. He was the driver of the van that transported Freddie Gray after his arrest. To secure a conviction for second degree murder in Maryland, prosecutors must prove that the defendant committed the offense with a “depraved heart.” That means that they must show that Goodson had a willful and wanton disregard for the life of Freddie Gray. Another way to put it is the prosecution must show the act was so dangerous, it evidenced a complete indifference to Freddie Gray’s life. If the evidence proved that Goodson intentionally took sharp turns at a high rate of speed, knowing that Gray’s head would be slamming into the side of the van while he lay vulnerably hog tied on his stomach, then I believe there’s a strong likelihood of conviction. However, the prosecutor isn’t alleging that the driver engaged in any of that conduct. Rather, the prosecutor’s theory is that Goodson drove the van without properly seat belting Gray and, also, failed to seek medical attention upon Gray’s repeated requests. I disagree with some of my legal colleagues who call this one a “slam dunk.” If given a fair trial, Goodson has a great chance of avoiding conviction on that charge. I’m in no way suggesting that Goodson didn’t screw up. He may have. The defense will explain why he did what he did that day and jurors will determine whether his actions were reasonable or criminal. The issue is whether there’s sufficient evidence to prove that his conduct was reckless as opposed to merely negligent (failing to use reasonable care). Based upon what was stated at the press conference, which one can assume is the best evidence they have, I anticipate significant challenges securing a conviction for second degree murder.

Regarding the officers charged with involuntary manslaughter, the prosecutor must prove that the officers’ actions constituted “gross negligence.” The prosecution’s theory is that officers ignored Freddie Gray’s repeated request for medical treatment. At trial, the defense will explain why they don’t always rush to provide medical assistance every time an arrestee requests it. Perhaps they will say that like a “Boy who cried wolf,” many arrestees request medical attention when it’s not needed. Jurors will evaluate their explanations and determine if the officers acted reasonably. Prosecutors may have enough evidence to secure convictions. On the other hand, it’s possible that jurors find, at worst, that the officers’ actions constituted mere negligence and not gross negligence. Negligence occurs when a person fails to use reasonable care. Negligence is sufficient to win a civil lawsuit and recover money damages, however, it’s not sufficient to secure a conviction in the criminal arena.

Prosecutors may also face challenges securing convictions against the three officers who were charged with false imprisonment. The prosecutor announced that the officers lacked probable cause to arrest Freddie Gray for unlawfully possessing a switchblade found in his pants at the time of his apprehension. Apparently the knife Gray was carrying was lawful to possess in Maryland. If the officers simply made an honest mistake, erroneously believing at the time of arrest that Gray was committing a crime by possessing the knife, then jurors may choose to acquit. Most reasonable people don’t expect officers to be perfect. Cops don’t always know what constitutes a crime under every single statute. In my over two decades in the criminal arena as both a prosecutor and a defense lawyer, I’ve seen approximately a dozen cases where cops in good faith make arrests believing a particular knife is unlawful only to learn otherwise by a prosecutor who took the time to research the issue. Jurors may be hesitant to label officers’ conduct criminal if they find that they made an honest mistake.

A ‘slam dunk,’ this case is not. The prosecutor chose to levee charges that may be challenging to prove. That’s not to suggest that the officers didn’t commit criminal wrong doing. They may have. What’s also possible is that jurors find that while mistakes were made, they aren’t going to require that the officers be perfect. They may likely find that some or all were negligent for failing to use reasonable care, however, under the law, more is required for criminal convictions.

Imagine that a brutal rape and murder is committed. Shortly thereafter, an arrest is made. At the accused’s trial, the most significant piece of evidence comes from the prosecutor’s expert, who testifies, “The hair found at the murder crime scene matches perfectly to the hair sample taken from the defendant’s head.” Based primarily on that trial testimony, the accused is convicted and sent to death row. What if the testimony was later found to be “junk science?” What if that same expert provided similar testimony in numerous other trials involving defendants accused of similar violent offenses? Worse, what if numerous other “experts” provided similar flawed testimony in hundreds of other cases?

Unfortunately, the hypothetical described above is a reality. It was just revealed by both the FBI and Justice Department that for more than a two decade period before 2000, almost every “expert” in their forensic unit provided flawed testimony in just about every trial in which they provided evidence in criminal cases. They would systematically come into court and claim that they were certain that hairs found at the crime scene matched that of the defendants’. Additionally they bolstered their claims in front of the juries by citing incomplete or misleading statistics. 26 out of 28 FBI microscopic hair comparison “experts” are involved in this appalling scandal. Those examiners provided flawed testimony in 95% of the 268 criminal trials reviewed to date. The cases being reviewed by the National Association of Criminal Defense Lawyers and the Innocence Project include 32 people sentenced to execution. Of the 32 sentenced to death, 14 of those have already died in prison or have been executed. As many as 2500 cases could have been affected. It’s important to note that the bogus testimony wasn’t the sole evidence of guilt in all of the cases. Prosecutors and defense lawyers are examining each case individually to determine whether they may be dealing with an innocent defendant. Four defendants were already exonerated.

The question now is how will judges and prosecutors respond to this, one of our nation’s largest criminal justice scandals. The FBI and Justice Department claims that they are sparing no resources to ensure justice for those defendants affected by this. The FBI revealed that until 2012, there were no written standards governing the proper way for their “experts” to explain results while testifying in court.

My reaction to this is, “Finally!” For decades, defense lawyers have been arguing that microscopic hair analysis used by the FBI to convict defendants was nothing more than junk science. The findings are abhorrent and require a top to bottom review of how these so-called “experts” are trained by federal and state agencies. What is imperative is that this cannot happen again. I don’t blame all prosecutors. I believe most of them erroneously believed the false evidence with the best of intentions and were honestly following the law. Moving forward, I certainly hope that no prosecutors stand in the way of permitting new DNA testing on those cases affected by this debacle. I also hope that prosecutors drop any procedural objections they have on appeals filed based on these grounds.

Those who passionately believe in capital punishment must do so with the belief that a defendant has been given a fair trial prior to being placed on death row. With this latest announcement, one has to question the very foundation of their belief. Without question, this is a colossal scandal with enormous lessons waiting to be learned by many.


Some new interesting developments have come to light concerning one of the jurors (Juror #17) in the most recent Jodi Arias jury trial. It’s being reported by CBS 5, a local television station from Phoenix, that the lone juror who held out for a life sentence, forcing a mistrial, sparing Arias from the death penalty, has an unusual link to Juan Martinez, Jodi Arias’ prosecutor. Apparently, Juror #17 used to be married to a guy who Martinez prosecuted in the late 1990s for murder. For some unknown reason, the charge was dismissed. Additionally, that same ex-husband was prosecuted for Burglary in May of 2000 and was sentenced to four months in jail. It’s alleged that while those criminal cases were pending, Juror #17 and the man being prosecuted by Martinez got married and had two children together.


In an attempt to make sense of the verdict and to explain some of the legal issues involved in the case, I wrote the following article immediately after the verdict, see: http://www.floridacriminaldefenselawyerblog.com/2015/03/making-sense-jodi-arias-hung-jury-decision.html. At the time, the information concerning Juror #17’s connection to Juan Martinez had not yet been made public. In light of how much misinformation has been posted on social media concerning this new revelation, I think it would be helpful to address some of the most common issues being discussed.

Question #1: Does this mean that Juror #17 definitely did something improper?

Answer: No, not necessarily. During jury selection, also known as voir dire, jurors are required to answer only those questions asked of them. The process is very controlled and structured. It’s not a free for all. If, for example, she was asked by prosecutor Juan Martinez a question like, “Do you know anyone who has ever been prosecuted by this (Martinez’s) office” and denied it with the intent to deceive the court, then she did something extremely improper and should be prosecuted. If it was never asked, as I suspect it wasn’t, then she didn’t have a legal obligation to disclose it. Many would argue that she had a moral obligation to do so. That’s up for discussion. Obviously, if as a result of her ex-husband’s prosecutions she developed strong feelings for or against Martinez and/or his office, then it certainly would have been helpful had she volunteered those experiences. It would have afforded the attorneys an opportunity to ask follow up questions designed to determine if she could still be fair to both sides. Again, unless asked directly, she’s not under any legal obligation to disclose it.
Having tried over 125 criminal jury trials as a prosecutor and a defense attorney in both state and federal courts, it’s been my experience that most potential jurors are nervous about having to speak in court. If she wasn’t trying to intentionally conceal her past, then it’s possible that she didn’t bring it up because she feared speaking in public and wanted to say as little as possible. Alternatively and/or in addition to that, it’s possible that she felt that it was something in her past that in no way would affect her in the Arias trial. No one except Juror #17 knows with certainty.

Question #2: In light of the fact that she had this history with Juan Martinez and his office, doesn’t that mean that she shouldn’t have been put on the jury?

Answer: Not necessarily. There’s nothing in the law that precludes someone from sitting on a jury if their loved ones, coincidentally, happened to have been prosecuted by the same office prosecuting the current case. In fact, let’s take it to the extreme and say hypothetically, everyone in her family, every friend she ever knew, everyone she ever loved, and even her own children were prosecuted by Martinez’s office. She can still legally serve as a juror on a case where Martinez and his office are involved as long as she can swear under oath that she can decide the case solely based upon the evidence and law presented.
There are instances where a person legally cannot serve. That list includes, but is not limited to convicted felons, people who can’t speak English, and those who aren’t U.S. citizens above the age of 18. Having a family member prosecuted in the past isn’t on that list of automatic disqualification.
Many may question how someone with that type of history could have the ability to set aside that kind of experience and decide the case solely based on the evidence and the law presented. It’s hard to imagine that it wouldn’t in some way affect their thought process. Only Juror #17 knows. Perhaps she was a “stealth” juror, as many have alleged on social media. Maybe she hid her true disdain for Juan Martinez and/or his office and made sure she got payback by establishing herself as the lone hold out. Another possibility is that whatever her feelings were concerning the past, she was honest when she swore during jury selection that she could set them aside and follow the law in making her decision. Both possibilities are plausible. While many in their anger and frustration claim they know with certainty how she felt, the fact is no one other than Juror #17 knows for sure.

Question #3: Will Juror #17 be prosecuted or sanctioned in some way?

Answer: Probably not. As explained above, there’s no conclusive proof at this time that she lied or violated the law in any way. Additionally, even if it’s suspected that she was a stealth juror and lied her way onto the jury, it most likely can never be proven beyond a reasonable doubt, as required for a criminal prosecution.

Question #4: Can’t something be done in the future to prevent people with that type of background from serving on a criminal jury?

Answer: Perhaps. First, attorneys always need to ask the right questions to flesh out any jurors who may be biased against their side. If Martinez didn’t ask the right questions, then it’s on him. No finger pointing is needed. If he failed to sufficiently inquire of this juror during jury selection, then he is punishing himself right now more than anyone can. I suspect that prosecutors around the country will learn from this experience if they don’t already ask the types of questions that would have yielded this potential bias. Also, it’s important to note that every juror who serves brings their life experiences to their deliberations. She wasn’t the only Arias juror who had some event in their life that caused them to lean at least slightly to one side. It’s through their own unique lens, filled with their own life experiences, that they make conclusions concerning the evidence presented. The only way to guarantee that a juror won’t bring their bias and life experiences into the jury room is to use robots instead. It’s no different then the rape victim who serves on a rape case. She can serve as long as she can fulfill her promise to follow the law. Similarly, someone who was once falsely accused of a crime may also serve. Again, as long as they can decide the case based on the evidence and the law, they can legally serve. Nothing prevents the prosecutors or defense lawyers from using their peremptory challenges during jury selection in order to remove a potential juror whose past experiences may make them favor one side or another.


For those who are convinced that she lied her way onto that jury and made sure that the prosecution didn’t get the outcome they so desperate sought, you may be right. On the other hand, for those who believe that she was honest when she said she could follow the law and keep an open mind when evaluating the evidence, you may be right as well. Only Juror #17 knows what her true intentions were. For those who condemn her and for those who defend her, each one of you has the constitutional right to express your opinions. Keep in mind however, that unless there’s sufficient credible evidence that she intentionally engaged in misconduct, then she may have just been an honest juror who, as the law permits, held on to her conclusion about the evidence. The process may have worked exactly as it was supposed to. Justice doesn’t mean that everyone everywhere gets the verdict they want. I know first hand that feeling of anger and emptiness when a trial doesn’t go the way I desperately want it to go. Our criminal justice system, while the best in the world, will always be perfectly imperfect.


I know a lot of people are angry right now. To hear that Jodi Arias won’t be going to death row because of one lone juror (Juror #17) is too much for many to handle. Many on social media have suggested that, “There is no justice,” and numerous folks are even calling for the entire criminal justice system to be revamped. Some have even called for the judge to be prosecuted. The madness must stop. For those who want to stay angry and frustrated at the system, then stop reading now. This article is solely for those who are willing to set aside emotion for a moment and are open to another point of view. More popular would be for me to keep these thoughts to myself. I cannot.

First, let me make clear that how I feel about the verdict is irrelevant to what I have to say in this article. I may believe passionately that Jodi should be on death row. I also may believe that life without parole is an appropriate sentence. What I am about to share has nothing to do with what I believe should happen to Jodi Arias.

Let’s start with potential juror misconduct. If there’s proof beyond a reasonable doubt that the lone hold out juror lied when she swore under oath during jury selection that she could impose the death penalty under the right circumstances when she really couldn’t, then she should be prosecuted. Additionally, if there’s proof beyond a reasonable doubt that she intentionally engaged in juror misconduct, then she should be prosecuted for that as well. That’s been my position towards all jurors who engage in misconduct, not just this one. As a trial lawyer for over two decades, having prosecuting and now defending criminal cases, I am especially passionate about the jury process being fair and free of misconduct.

After carefully listening to the post verdict press conference featuring all 11 jurors who voted for death, there’s a strong argument to be made that the lone juror did not commit any misconduct. Keep in mind that Juror #17 was not present at the press conference and thus, we didn’t hear her side of things. In the interest of fairness, I wanted to present what might have been her response to some of the allegations.

Allegation #1: “She had her mind made up before the evidence was presented.” That may be true. If so, that’s unfortunate and improper. What may also be true is that, just like all the other jurors, she kept an open mind throughout the trial. Naturally, she formed a strong opinion as to whether Jodi should live or die after hearing all the evidence. She first articulated that opinion to her fellow jurors some time after jury deliberations began. As we learned at the post trial press conference, several other jurors felt the same way she did when the initial vote was taken. Little by little, the other jurors who shared her opinion went to the other side. She was the lone hold out. It’s very possible that because she was so entrenched in her position, which is her right, that jurors felt that she had made up her mind before all the evidence was in. That’s very different than whether she actually did. Only she knows.

Allegation #2: “She wouldn’t participate at all in deliberations.” We know that isn’t true. Her fellow jurors revealed during the press conference that she did share a number of things during deliberations. In fact, they were able to provide the reasons that she gave as to why she didn’t want to impose death. They didn’t speculate as to what those reasons were. Rather, those reasons actually flowed from her lips during deliberations. It’s possible that she began to speak less when she felt that what she had to share was either not being embraced by the others and/or felt like she was being criticized and judged. It’s not uncommon for people to shut down to some extent when they feel like they are being attacked. No, I wasn’t in the jury room. However, I am very familiar with how human beings under these stressful circumstances often react. I can only imagine how heated things got in that room. All those hours of eleven vs. one would have led most people to eventually contribute less and/or shut down.

Allegation #3: “She committed jury misconduct by watching the Lifetime movie about Jodi Arias and then shared it with fellow jurors.” If she lied to the attorneys during jury selection by saying she had never seen the Lifetime movie when in fact she did, then she should be prosecuted. If, however, she wasn’t asked, or was asked and said that she could set it aside and base her decision on the evidence, then she did nothing improper. Her alleged comment, that the way Jodi was portrayed in the movie (“like a monster”) was different then how she found her in court, was simply one of many of her opinions. She may have been attempting to convey that the evidence presented in mitigation showed her in a vastly different light than the movie. While it shouldn’t have been brought up because the movie wasn’t in evidence, it didn’t adversely affect the deliberations. No juror stated that she offered that during deliberations as the reason she voted against death. Also, her statement concerning the movie didn’t influence any of the other jurors. It’s possible that the 11 jurors used her movie reference as a way to get her out of the jury room so that an alternate would take her place. Bringing in an alternate would most likely have assisted the jurors in securing the death penalty verdict they obviously were eagerly seeking.

Allegation #4: “She was just being stubborn and wasn’t following the law.” The jurors’ obligation was to determine if the aggravating circumstances in favor of the death penalty presented by the prosecution outweighed the mitigating circumstances against death, presented by the defense. There’s no sufficient evidence to suggest that the hold out juror didn’t weigh the aggravators vs. the mitigators, as required. In fact, during the post trial interview, some jurors reported that Juror #17 found the mitigator concerning the mental state of Jodi Arias very compelling. She shared that during the deliberations. Also according to jurors post trial, Juror #17 found that the Arias journal entries shed light on her state of mind, supporting another mitigator.

Allegation #5: “She allegedly stated that she believed that her fellow jurors were voting for death to seek revenge.” If, as many allege, that statement provides insight into her thought process evidencing that she never intended on voting for death under any circumstances, than she did a disservice. She should be prosecuted if she lied during jury selection when she said she could impose death if she wasn’t being truthful. However, perhaps when she made that remark during one of the many hours of heated deliberations she was merely offering her opinion, which is what is supposed to happen during deliberations. Perhaps she was attempting to get the other jurors to question their motives. It’s likely that she was attempting to illustrate to them that their verdict was based more on revenge than whether the aggravators outweighed the mitigators.


It’s possible that juror #17, like most Americans and fellow jurors, has always had strong feelings about the death penalty. It’s one of the most controversial issues around. That’s normal and is her right. It’s possible that after keeping an open mind throughout the trial, she opined that death was not appropriate as the prosecution did not carry their burden. She may have found that the mitigating circumstances were more compelling than the aggravating circumstances. It’s possible that she would agree to vote for a death sentence under the right circumstances. For her, this was not that scenario. It’s possible that not possessing the orating skills of Dr. Martin Luther King, Jr. and/or Abraham Lincoln, she wasn’t able to clearly articulate why she found the mitigators more compelling than the aggravators. Whether you agree with her decision or not, it’s her right to have her own opinion. As long as she came by her decision honestly and lawfully, her decision should be supported, not condemned. To this day, I am still frustrated by the jurors’ decision in both the O.J. and Casey Anthony murder trials, however, I refuse to attack the jurors who worked hard to reach their decisions honestly and lawfully.

We don’t want a criminal justice system where jurors don’t feel comfortable holding on to their beliefs, even if they are unpopular. We don’t want a system where jurors forgo their lawfully reached conclusions because they want to please the other jurors, or worse, the pitchfork holding public. Regardless of whether I agree with Juror #17, I support her decision, absent any sufficient credible proof that she did anything unlawful. You have the right to continue to condemn her and the system. Having our own beliefs and being able to share them with others, or fellow jurors and/or readers of social media, is what makes this country so wonderful.


By: Mark Eiglarsh

A middle-aged man, Kyle, returns home to his wife and children after serving in the U.S. military for a number of years. Upon his return home from duty, Kyle volunteers to help war veterans who struggle with combat-related anxiety and mental health problems. One day, after attending his children’s sports events in the morning, Kyle and his friend take a troubled veteran, Eddie, out to the shooting range in the afternoon to spend some quality time together and have some fun. However, at the shooting range, Eddie shoots Kyle and the friend and then speeds off in Kyle’s truck. Several hours later, Kyle and his friend are found dead after each one was shot multiple times in the back, hands, and face. Days later, when the police approach Eddie in the truck to speak with him, he refuses to get out and speeds off with police in pursuit. After eventually being arrested, Eddie confesses to the killings but pleads not guilty by reason of insanity. Eddie’s family members say he suffers from post-traumatic stress disorder from serving in the military in Iraq, and his attorneys claim that he has been in and out of psychiatric hospitals in recent months. They further maintain that he was even released from a hospital only one week before the incident. However, the prosecution asserts that Eddie is a troubled drug and alcohol user who intended to kill Kyle and the friend.

In cases where the insanity defense is alleged, the person confesses and admits to doing the act charged against him, but seeks an excuse that he cannot be blamed and held legally responsible for it. In other words, if the person was insane when doing the act, then he was incapable of forming the necessary intent to commit the crime and thus he is excused from any criminal liability or punishment.

Florida uses the M’Naghten rule to determine the legal test for insanity. Under the rule, a criminal defendant is not held responsible if, at the time of the crime, he was by reason of mental infirmity, disease, or defect (1) unable to understand the nature and quality of his act or its consequences, or was (2) unable to distinguish right from wrong. Hall v. State, 568 So.2d 882 (1990). All persons are presumed to be sane, and the defendant must prove by clear and convincing evidence that he was insane at the time he committed the crime. FL Stat. § 775.027. However, expert testimony that a defendant suffered from a mental illness without concluding that, as a result of the condition, the defendant could not distinguish right from wrong is irrelevant. Hall, 568 So.2d 882.

If the defendant presents evidence that creates any reasonable doubt as to whether he was sane, the court must instruct the jury that the presumption of sanity disappears. See Matevia v. State, 564 So.2d 585 (2d DCA 1990). The instruction must include that the State of Florida needs to prove beyond every reasonable doubt that the defendant was sane when committing the crime. Id.

In some cases the defendant may allege a claim of diminished capacity if a claim of insanity is unsuccessful. When claiming diminished capacity, the defendant admits to the act, but that he reacted in such a way because of a sudden impulse; he admits he is guilty, but of a lesser charge. However, Florida does not recognize a diminished capacity defense, unless it entails the elements of an insanity defense. See Zamora v. State, 361 So.2d 776 (3d DCA 1978).

If the above scenario sounds familiar, it’s because those facts mirror the facts in the “American Sniper Trial,” with Kyle being the one played by Academy Award nominee Brad Cooper in the Oscar nominated movie. Because the defense failed to prove that Eddie experienced a mental condition that caused him an inability to know right from wrong or an inability to know that shooting the men was wrong, he was not excused for his crime. Eddie shot the men a combined 12 times and then sped off stealing Kyle’s truck, seeming to show that he knew what he had just done and that he was wrong. Moreover, he fled from the police when being approached days later. The prosecution’s argument, that if he did not think what he had done was wrong, he would have had no reason to flee, probably resonated with jurors. Additionally, what also didn’t help the accused in this case is the fact that he admitted to law enforcement during post arrest interrogation that he did know right from wrong. Putting the nail in the coffin was the accused actually apologizing to the victim’s family for what he had done.

When asserting the insanity defense after being charged with a crime, one must understand that he must overcome the presumption that he was sane when he committed the act. The defendant will not be held criminally responsible for a crime if he can prove that he experienced a mental disease at the time of the act and that it caused him an inability to know right from wrong or an inability to know that his act was wrong. Anything short of that will not acquit the defendant no matter how long or serious his mental illness might be.

As I sat in the federal prosecutor’s office for our first meeting concerning my client accused of Federal Aggravated Identity Theft and Conspiracy to Commit Access Device Fraud, he pretty much assured me that he had overwhelming evidence of guilt and that his case was a slam dunk. He, along with the lead investigator, a Secret Service Agent, were doing all they could to persuade me that my client was guilty. This was so early on in the case that I had yet to even receive the Government’s discovery response (the evidence). They wanted my client to plead guilty, just like the other approximately 95% of criminal defendants who choose not to go to trial, opting instead for a plea deal. The prosecutor made clear that the prison time that he would recommend if she pled guilty was significantly less than what she would receive after her conviction. Candidly, with the limited pieces of evidence that he showed me, coupled with his passionate explanation as to why my client was guilty, I thought she probably was. I certainly thought, based on what was presented, assuming it all to be true, that they probably had enough to persuade a jury of her guilt.

Fortunately, I have learned after over two decades of trial work, that you can’t always believe everything people tell you, especially prosecutors. Also, things are not always as they appear.

It wasn’t until after I received all the evidence in the case and then spent countless hours reviewing a massive number of documents with my client that I started to see how the Government didn’t have the overwhelming case that they believed they had (&/or led me to believe they had). The bulk of the Government’s information came from three co-defendants who pled guilty to actively participating in the fraud and now were pointing their finger at my client as being one of the ringleaders. What those snitches didn’t realize was that every time you point your finger at someone, you’ve got three fingers pointing back at you. I was relentless in my pursuit of evidence to show why they were lying. It didn’t take long to come up with lots of material.

All three of the snitches had already worked out plea agreements with the Government and had received substantial benefit in exchange for their testimony against my client. While the prosecutor tried hard to persuade the jurors that they were all there to simply “tell the truth,” the jurors soon learned otherwise. They learned that all three were hoping that the prosecutor would take lots of time off their prison sentence as long as they helped the Government in their case against my client.

Fortunately for my client, each of the snitches came across as liars. One in particular, Nikita Gregory, gave us the “Perry Mason moment” that no one could have foreseen.

The first question the prosecutor asked Ms. Gregory was, “What was your relationship like with Ms. Vickers (my client)?” She responded, “I knew her…we were acquaintances.” The prosecutor then said, “Well, didn’t you go out with her and others?” She testified, “Yes. Occasionally we would all go out.” Clearly, she wanted to give the impression that my client was nothing more than someone she would occasionally see out and/or join in a group for a night out.

My blistering cross examination exposed her numerous inconsistancies and her obvious bias and motive. I ended with the following:

Me: “Ms. Gregory, did I hear you correctly? Did you say that you were mere “acquaintances” with my client, who occasionally would go out with her, but only in a group setting?”
Ms. Gregory: “Yes.”
Me: “Isn’t it a fact that you and my client were more than that?”
Ms. Gregory: “No.”
Me: “Didn’t you have a personal and intimate relationship with my client for approximately two years?”
Ms. Gregory: “No.”
Me: “Come on Ms. Gregory, you’re under oath. Weren’t you and my client lovers?”
Ms. Gregory: “No. We was just experimenting. Haven’t you ever experimented?”

I then had my client stand up and display her ring finger so that both Ms. Gregory and the jurors could see that there were some words tattooed on both sides of her finger. I then had Ms. Gregory acknowledge that on one side of my client’s finger was the name, “Nikki” (as in her first name, “Nikita”) and on the other side of her finger was “Gregory,” the last name of the testifying snitch. I then asked, “So my client got your name tattooed on her ring finger, with your knowledge and approval, merely because you all were experimenting?” She had no response.

I then asked Ms. Gregory the following:

Me: “Don’t you also have some tattoos?”
Ms. Gregory: “Yes.”
Me: “Tell the jurors what’s tattooed on your left breast”
Ms. Gregory: “Tanika”
Me: “As in Tanika Vickers, my client?”
Ms. Gregory: “Yes.”
Me: “What about on your back? Got any tattoos there?”
Ms. Gregory: “No, it’s covered up.”
Me: “Well, what did it say before it was covered up?”
Ms. Gregory: “Vickers”
Me: “As in Tanika Vickers, my client?…the one you merely ‘experimented’ with?”

I didn’t stop there. In order to support my theme with her that, “Love hath no fury like a woman scorned,” I asked:

Me: “At the end of your two year relationship, you and Tanika were arguing a lot.”
Ms. Gregory: “No we weren’t”
Me: “And those verbal arguments turned to physical confrontations between you two.”
Ms. Gregory: “That’s not true.”
Me: “Your testimony is that you never fought with my client?”
Ms. Gregory: “It was one sided. She was the one throwing the punches.”
Me: “And you just stood there. Peaceful and calm every time?”
Ms. Gregory: “Yes.”
Me: “Let me pick just one of many instances to ask you about. While you were out at a club with Reeva and Shirley etc….didn’t you slam a bottle of champagne over my client’s head?”
Ms. Gregory: “Yes.”

I paused for 5-10 seconds to let it sink in with the jurors. I needed them to see clearly that now, sitting before them was a liar who wasn’t worthy of any credibility. It didn’t matter what she said to help the Government during her testimony.

As if that wasn’t bad enough, I was later able to illustrate for the jurors that she even lied about what the tattoos said. The one on her breast didn’t merely say, “Tanika” as she testified. It actually read, “I love Tanika.” Additionally, the one that was on her back didn’t read “Vickers.” Before it was covered up, it read, “Mrs. Vickers.”

Fortunately, I had similar moments with two of the other cooperating Government snitches. Their case was in shambles. When we used one of the Government’s own witnesses against them to explain how my client’s conduct was consistent with innocence, the writing was on the wall.

Fortunately, after a little less than an hour of deliberations, the federal jury who, when they showed up to jury duty probably thought my client was guilty like all who are merely arrested, chose to acquit her. While the prosecutor was extremely professional and a pleasure to work with, he had to know his case was crap when he stood up for closing argument. I chuckled inside when he passionately told the jury, “The fact that Ms. Gregory wasn’t candid about their relationship is irrelevant.”

There were many keys to this victory. First, the Government relied way too much on their rats. Jurors saw clearly during cross examination that they would accuse anyone if it meant getting their cheese. Additionally, the Government failed to make the attempt to corroborate or disprove their snitches. As I shared with jurors, they could have sent out subpoenas for items like cell phone records and/or video surveillance which would have disproved or possibly proved the allegations made by their witnesses. The lack of evidence and/or even the attempt to secure that evidence constituted reasonable doubt. What didn’t hurt were the unforeseeable unplanned “Perry Mason moments” that always seem to happen in my trials.

Needless to say, my client and her family were elated. After many months of hard work, I am feeling incredibly satisfied and grateful. Generally, the system does work for my clients.

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