Florida Criminal Defense Lawyer Blog

DNA tests have confirmed that Ariel Castro is the father of 6-year-old Amanda Beryy born to one of the three women he is accused of keeping in captivity for more than a decade. Castro's DNA does not match that of any other Ohio abduction cases.

Berry was one of the individuals rescued Monday along with Michelle Knight, who disappeared in 2002, and Georgina "Gina" DeJesus, who disappeared in 2004.
Castro is currently on suicide prevention, which is standard procedure for high-profile inmates. A day earlier, a judge ordered he be held Thursday on $8 million bond on kidnapping and rape charges.

The prosecutor intends on charging Castro with attempted and aggravated murders, in which Castro allegedly forced miscarriages.

Investigators were told the women were chained in the basement of the home, but later moved upstairs to rooms on the second floor. They were allowed out of the home only twice. Castro would frequently test the women by pretending to leave and then discipline any of them if they had moved.

Authorities continue to investigate the situation.

Jana Winter, a fox news reported who reported the notebook that was allegedly sent from James Holmes to his psychiatrist failed to reveal her sources and she now faces jail time for not disclosing such information.

Winter has been subpoenaed by Holmes' attorneys to testify on Wednesday and has indicated that she does not plan to reveal her source. Winter fears that revealing her source will tarnish her reputation in her professional field.

Days after the July 20 theater massacre in Aurora, Colorado, Winter scored a major scoop on FoxNews.com, reporting about the existence of the notebook. She cited a source who described the book as including illustrations and other details of how the massacre would occur.

Holmes is charged with numerous counts of first-degree murder for the murder of 12 people and wounding dozens more at the premiere of the Batman movie where he opened fire at the theatre guests.

Federal agents believe Holmes planned the attack for months. His trial is scheduled to begin in February 2014. If convicted, he faces the death penalty.

Holmes' attorneys have filed a series of motions and hearings in an attempt to find out who leaked the information about the notebook, calling to the stand all the police and bomb technicians who had access to the package. All have said they did not speak to any reporters about the package.

Winter made it clear in last month's affidavit that her credibility is at stake if she were to reveal her sources and she refuses to do so. She and her attorneys have tried to fight the subpoena, but have been unsuccessful.

A angry former apparel designer was killed Friday morning by police gunfire in front of the Empire State Building, one of the most famous skyscrapers in the world and one of New York City's best-known tourist attractions, after he murdered a former work acquaintance, Steven Ercolino. Authorities said the shooting did not seem to be linked to terrorism.

The shooter was identified as 58-year-old Jeffrey Johnson, who was laid off from his job, as a designer of women's accessories at Hazan Import last year, as a result of down sizing. Johnson's relationship with the company ended after a bitter dispute with the victims and company's account executive, Steven Ercolino, 41, authorities said.

A friend of Ercolino's who witnessed the shooting told police that she noticed Johnson, who was wearing a suit and carrying a black bag, outside the building. She saw him walk up to Ercolino and without saying a word to him, fire continuously at him.

Johnson carelessly walked away from the shooting and he was then followed by a construction worker who subsequently informed two officers of the shooter. As approached by the two officers, police say Johnson pulled his gun out of his briefcase, held the gun chest high and extended his arm. The two officers, approximately eight feet away from Johnson, opened fire, killing him.

Bystanders were hit during the gunbattle. Police Commissioner Ray Kelly said the bystanders were not hit directly by police and police suspect that some of the wounded may have been inadvertently hit in the crossfire or by ricocheting bullets. Six of the wounded were treated and released at hospitals as of Friday evening, while three others remained hospitalized, however none of the injuries are considered life-threatening.

What should have been a joyful reunion turned sour Wednesday night, when an 18-year-old Palm Springs man was arrested on assault charges after his 21-year-old brother in the Marines returned home for the first time in three years. It is hard to see a violent assault case such as this occur between two family members, but experienced criminal defense attorneys will recognize the importance for the defendant of ensuring proper legal counsel. Jaquez Devon Strange was released on his own recognizance Thursday by Palm Beach County Circuit Judge Ted S. Booras. Strange has been charged with aggravated assault with a deadly weapon and simple battery.

Strange remained quiet throughout his first hearing in Booras’ courtroom, but shook his head in disagreement when the judge suggested that his Marine brother should have “stomped him to the dirt”. This is precisely the style of courtroom demeanor that awaits most individuals who face such charges without a competent criminal defense attorney being present. As a Miami criminal defense lawyer, I understand that such charges are very serious and have the potential to result in jail time but I also, having seen this play out over and over, have a great deal of sympathy for people that find themselves in this situation. Everyone thinks that there is a “type” of person who ends up on the wrong side of the law when the truth is that all of us have within us the potential to make a bad decision—even one that has a violent end.

The official report, made by the Palm Springs police officer who first responded to the emergency call, describes the incident as evolving from an argument between the two brothers. A criminal defense attorney always recognizes that many assault charges spring from transitory emotions and are not indicative of “normal” behavior. The returning Marine, whose name is blacked out in the police report, reportedly arrived home at about 5:30 p.m. to surprise his family. Jaquez Strange told the responding officer that upon seeing his older brother he said “Hi” before returning upstairs to finish ironing his clothes. His brother was unsatisfied with the greeting and chased Strange upstairs, where they got into an argument. And that, unfortunately, is quite common—a simple exchange gone wrong.

The obligation of the criminal defense lawyer who takes on this individual as his or her client, is to secure their fair treatment under the legal system and to secure the best possible outcome.

Regrettably, as the argument escalated, Strange reportedly picked up a poker from next to the fireplace to use as a weapon. His older brother disarmed him, but the disagreement turned physical with each claiming the other struck first. In my years as a Miami criminal lawyer I have seen the type of destruction such a case as this can wreck at both the societal and familial level. The best possible outcome is for the defendant to enlist the services of a criminal defense attorney who is adequately prepared to defend him.

This Saturday, Palm Beach County police released news that former U.S. Representative Tim Mahoney is facing DUI charges after being found asleep behind the wheel the night before. DUI cases, whether they involve a famous figure or not, always attract the interest of Florida criminal defense attorneys. Police have reported that Mahoney has reportedly been released from the Palm Beach County Jail on his own recognizance. Penalties for driving under the influence have grown increasingly harsh in recent years, and years of experience as a Miami criminal defense attorney have led me to understand that individuals facing such charges are in need of competent legal protection.

A Democrat from Palm Beach Gardens, Mahoney was found asleep inside his car sometime between 2:45 and 3:00 a.m. Saturday morning. Capt. Bill Brandt, a spokesman for the Palm Beach Gardens Police, reported that a North Palm Beach police officer found Mahoney inside his car which was stopped on the road at the corner of PGA Boulevard and U.S. 1. Criminal defense lawyers, for whom working with DUI cases is a regular occurrence, understand that a high level of societal scorn and ill-will is targeted at those convicted. For this reason, it is crucial that individuals such as Congressman Mahoney employ a seasoned criminal defense attorney for their defense.

The intersection where Mahoney was found is located on the border of jurisdictions, requiring the officer who discovered Mahoney to call in the Palm Beach Gardens Police. It was they who conducted the investigation and made the arrest.

When questioned by the press on Saturday afternoon, Mahoney said he had “no comment” about his arrest. Mahoney represented Florida’s 16th district for one term after he was elected to the seat once held by former Congressman Mark Foley. Foley had resigned after a sexual misconduct scandal, and (ironically) Mahoney himself resigned after admitting to multiple affairs. When I read about these types of acts of human frailty I don’t gloat or feel self-righteous. I just feel sad that someone’s life is so out of control that they would throw away a rich career, a good marriage, and a life most people only dream of having on ridiculously simple and short-lived pleasures.

Experience working as Miami criminal defense lawyer has led me to look at all angles of a case. It is important to consider the possible factors in Mahoney’s personal life that led to such a serious error in judgment. The responsibility of his criminal defense attorney will be to present a comprehensive defense, given all the data involved.

In a groundbreaking decision made yesterday, Judge Mary S. Scriven of Florida’s
Middle District declared part of an important Florida drug law unconstitutional. In a
43-page order that holds vast implications for the world of Miami criminal defense,
Judge Scriven threw out the cocaine-delivery charge brought against defendant Mackle
Shelton in a 2005 trial. Six years ago, Shelton received an 18 prison sentence for his
work as a cocaine delivery man. Shelton remains convicted of the seven other related
charges brought against him during the trial.

Scriven found the Florida law that Shelton was charged with breaking is unconstitutional
because it eliminated the need for a jury to establish the presence of mens rea, or “a
guilty mind”, in the defendant. This decision marks an important advance for the
cause of justice in the Florida criminal system. For years, the best efforts of Florida’s
criminal defense attorneys were too often unable to protect those individuals facing
such a charge. Scriven also took aim at certain changes made to the Drug Abuse
Prevention and Control law by the Florida state legislature in 2002, declaring them
unconstitutional on the same grounds.

The law in question specifically denies the right of anyone to “sell, manufacture, or
deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance”
However, Judge Scriven writes that during the 2005 trial the jury was not instructed to
determine whether Mr. Shelton was conscious of the nature of his deliveries. The best
Miami criminal defense lawyers have always seen a problem with the law that allows
such a clearly erroneous practice. As Judge Scriven wrote, “Not surprisingly, Florida
stands alone in its express elimination of mens rea as an element of a drug offense.”
With luck, Judge Scriven’s order will have a lasting positive impact on the ability of
Miami’s criminal attorneys to fight for their clients’ rights.

Criminal defense lawyers in Florida will welcome the logic of Judge Scriven’s order.
She writes that “there is a long tradition throughout human existence of lawful delivery
and transfer of containers that might contain substances,” but “Under Florida's statute,
that conduct is rendered immediately criminal if it turns out that the substance is a
controlled substance, without regard to the deliverer's knowledge or intent.” This news
opens the doors for effective and competent Florida defense lawyers to provide their
clients with an additional opportunity for protection from harsh drug laws.

Judge Scriven’s order calls attention to the weaker points of Florida’s drugs laws that
have plagued Miami criminal defense attorneys, for years. She writes that there are
an infinite amount of possible scenarios in which one might legitimately not know they
are in possession of illegal drugs. Scriven specifically challenges the age-old argument
that the “possession of cocaine is never legal”, saying that it is inherently flawed.
Scriven cites rulings from several United States Supreme Court cases in her court order
and also points to the fact that there has not yet been an appellate case challenging
the law. Judge Scriven’s court order is a laudable effort toward increasing the justice of
the Florida legal system, and gives criminal defense lawyers a better ability to defend
their clients.

In what appears to be a message specifically directed to prosecutors, Judge Scriven
writes that the traditional “tough luck” approach to such cases is not an acceptable
answer to the constitutionality of the law. Miami criminal defense lawyers, indeed
defense lawyers all over Florida, should welcome this news as an advance in
defendants’’ rights.

Judge Scriven sums up her assessment of the Florida drug law by writing, “the Florida
drug statute fails completely.” Defense lawyers all over Florida, particularly those
Miami criminal defense attorneys who see such a high proportion of drug offense
related cases, surely cannot help but to agree with Judge Scriven’s assessment of
Florida drug laws.

A Coral Gables father who decided not to "spare the rod, spoil the child" said he felt vindicated Wednesday after state prosecutors officially dropped a child abuse charge that they had leveled against him.

In October 2007, Loscar Rodriguez was arrested for allegedly beating his then 8-year-old son with a belt. Rodriguez reportedly hit the boy so hard he raised welts on the child's backside. He said he did it as punishment after getting a note from the boy's teacher that he had been goofing around in school and getting poor grades. He was charged with felony child abuse, which prompted debate across South Florida over how parents should be able to discipline their children.

Rodriguez attended counseling and parenting classes as his lawyers worked to have the charge dismissed. After two years of extensive litigation, the state has agreed to drop criminal charges against him. Rodriguez's ex-wife, who was in the courtroom, was outraged that the charge being dropped.

"I can't believe it is being dropped," said Stephanie Verdon, the boy's mother. "They said corporal punishment is allowed in the state of Florida, but the way that he was beaten should not be allowed. It should be overturned, it's not right."

Rodriguez attorney, Mark Eiglarsh, disagreed saying his client should not have been charged in the first place.

"There's a huge debate over what's appropriate and what's not appropriate," said Eiglarsh. "But legally we said all along, he had not committed a criminal act and unfortunately it took two years of extensive litigation to get to the point that it became clear to prosecutors he had not committed any criminal act."

When Rodriguez was charged, even the judge who presided over his bond court appearance questioned his arrest.

"If he hit him with the buckle or a baseball bat or something like that or he had injuries," said Judge Fred Seraphin. "But a welt from a belt? It's supposed to leave a mark so you remember to get your work done."

Finally cleared of the child abuse charge, Rodriguez said he's learned a valuable lesson.

"I'm more lenient, you know, it's helped me be more lenient towards him," said Rodriguez who vowed never to punish his son with a belt again.

Rodriguez, who is not a U.S. citizen, could have been sentenced to five years and prison and likely deported to his home country of Nicaragua if convicted.

CBS4 reporter Gary Nelson contributed to this report

Suit filed by fired officer who declined shock draws divided reactions

Should a sheriff be able to reassign an officer to a different, less desirable position if the officer refuses to undergo a training exercise?
What if that training exercise required the officer to receive a shock from a Taser?
And what if that officer had a note from his doctor advising against it?
Those are among the provocative questions at the center of a lawsuit filed this week by Ray F. Robert against the Hamilton County Sheriff's Department, and how those questions are answered depends greatly on who is being asked.
Robert, who spoke with The Indianapolis Star on Wednesday, said he can't fathom being fired for basically taking his doctor's advice.

"I'd been in law enforcement for more than 31 years, and (when I was terminated), it felt like it was all for nothing," Robert, 54, said. "Just because I can't be Tased doesn't mean I can't do my job."
Robert said two doctors -- including a physician chosen by the Sheriff's Department -- advised him against being Tased. He feared the electrical jolt and ensuing muscle spasms could further injure a damaged vertebra and a metal plate in his back.

"What happens if I become paralyzed? How long is the county going to pay me?" he asked. "What would I be able to do with my life if that happens?"
But Hamilton County Sheriff Doug Carter said other officers, including a 73-year-old employee and another officer with severe back problems, each received a two-second Taser jolt with no ill effects.

"Every single person who underwent the training found value in the exposure," Carter said. "I would never put one of my officers in danger. The vast majority of Taser injuries come from falls, which is why we have the training on a mat with people holding the person (getting Tased)."
Both sides agree that after Robert refused to be shocked in December, the department offered to create a position for him at the Hamilton County Jail.
But Robert's attorney, Daniel Lapointe Kent, called the gesture inadequate.

"They offered another position with a substantial reduction in the overall compensation package, with not as many benefits," he said. "He would have to work weekends and holidays and no longer have use of a squad car."
After Robert refused the position in the jail, Carter said he had no alternative but to fire him.
The issue drew divided reaction Wednesday.
Dalia Hashad, a policy director with human rights watchdog Amnesty International, praised Robert for his refusal and chastised the sheriff's decision.

"It seems they (the Sheriff's Department) lack a strong understanding how dangerous a Taser really is," Hashad said. "Given his medical history and the two doctor's notes, it's obvious he wasn't an appropriate person to be Tased. With that attitude, I'm curious how they're using the weapon on the street. Is there anyone they think shouldn't be Tased?"
Amnesty International is a longtime critic of Taser use. The organization attributes 335 deaths from July 2001 to August 2008 to the device, but Noblesville Police Lt. Bruce Barnes said that if an officer can't be Tased, it may raise other questions.

"You have to question if someone is fit for duty if they say they can't train for a situation that might occur in real life," said Barnes, whose department is among several in Central Indiana, including Indianapolis police that require such training. "What happens if you're wrestling with a suspect, and he grabs your Taser (and shoots you)? If you can't perform your duties, you're putting everyone else at risk."

Lapointe Kent said Robert didn't need a Taser because he had other weapons at his disposal, such as a nightstick and his firearm. Carter, however, said Tasers have become integral tools in police officers' nonlethal arsenals.
"The presence of Tasers has quickly de-escalated many violent situations," Carter said. "In five seconds, the situation is brought under control with no injury to the person or the officer. (If you were a suspect,) would you rather be hit in the head with a nightstick or stunned with a Taser with no injuries afterward?"

Tasers temporarily incapacitate suspects by delivering five seconds of 50,000 volts of low-amperage electricity through two barbs shot into the body from up to 21 feet away.
Most training programs give officers the choice of being shot with the barbs or receiving a shorter jolt through a pair of alligator clips attached to a pant leg.
Many agencies believe it is imperative for officers to understand what a Taser shock feels like, in part so they will show restraint before using the device.
In a written statement, Taser company spokesman Steve Tuttle said fewer than 100 injuries have occurred during more than 625,000 training exposures.
Greenwood Police Chief Joe Pitcher said he has had a couple of officers with heart issues who were cleared by their doctors to be Tased.

"Their doctors told them there was no evidence that it would be harmful, so to go ahead and do it," Pitcher said. The training "gives us a good lesson that if we do have to resort to these instruments, we know how painful they are to the people we have to use them on."
"Tasers are very painful but not lethal," he said. "They are subject to abuse if you are not familiar with how painful they are."

Robert's suit, filed in federal court, alleges his constitutional rights were violated and seeks reinstatement, back wages and punitive damages.

I've been saying for more than a decade now, "The fish who kept his mouth shut never got caught." Apparently, Joran Van der Sloot didn't learn that lesson. Van der Sloot is one of the suspects who is alleged to have played a key role in Natalee Holloway's disappearance from an Aruba beach back in 2005. ABC has obtained a "taped video confession" of Van der Sloot confessing to his friend that he was with Holloway when she died. He Should have remembered his good ole Miranda Rights. He explains on the videotape that Holloway was drunk and that she began shaking and slumped down on the beach as they were kissing. If you haven't already done so, please view the video below.

Continue reading "KEEP YOUR MOUTH SHUT" »

And now conclusive proof that judges don’t always automatically do whatever government prosecutors ask of them. U.S. District Judge Marcia Cooke rejected the government’s passionate request that Jose Padilla and two other fellas who were convicted of terrorism charges be sentenced to life. Cooke sentenced Padilla to 17 years and four months in prison after jurors found that he participated in a South Florida based conspiracy to assist Muslims in “violent Jihad.” Cooke rejected the government’s argument that Padilla’s actions were comparable to the Oklahoma City bombing and/or the September 11th , terrorist attacks. Cooke stated, ''There was never a plot to harm individuals in the United States, '' Also, Cooke found that ``There was never a plot to overthrow the U.S. government.''

What is most significant to me is that Padilla was facing 30 years to life under the Federal Sentencing Guidelines. Judge Cooke had the courage, in today’s conservative climate, to exercise her discretion and to punish Padilla as she deemed appropriate. A rare act in today’s justice system.

There's a lot of misconception concerning the arrest of my client Jeff Weinsier, a "problem solver" reporter for ABC affiliate WPLG. Instead of telling you what really happened, why don't you simply see for yourself and make your own decision. You can view the piece that ran on the local10 and also view the unedited raw footage.

Let me know you're thoughts.

Maybe he should have just kept driving when chased in his white Ford Bronco. That way, perhaps we would have avoided the latest O.J. controversy. Unfortunately, Miami’s very own, O.J. Simpson finds himself at the center of yet another criminal case. This time, he’s accused of barging into a Las Vegas casino hotel room Thursday and taking a number of items that he believed were his. O.J. allegedly brought with him four friends, some armed with guns, in what Simpson has described as a self organized sting operation. O.J. is now facing decades in prison if convicted of any of the serious offenses for which he is charged: two counts each of robbery and assault with a deadly weapon, conspiracy to commit robbery, and burglary with a deadly weapon.

No doubt, it will be O.J.’s initial comments to the media that will be highlighted in his pending case. There’s a reason why I instruct my clients to keep their mouths shut. O.J., apparently thinks he knows better. Now he’s locked into whatever he spewed to reporters prior to his arrest.

Continue reading "Miami's Own O.J. Held Without Bail On Serious Felony Charges" »