Articles Posted in Articles of Interest

The jury had been deliberating several hours and I was getting a little nervous. I take great pride in persuading jurors during closing arguments that if they have any reasonable doubt about my client’s guilt, then there’s no reason to go into the jury room and spend hours debating. Just come back with a verdict of Not Guilty. I call it “The Five-Minute Verdict.” I explain that since the presumption of innocence applies and that the prosecutors hadn’t proven their case at any time, then jurors shouldn’t spend more than five minutes coming back with a not guilty verdict. Obviously that ploy hadn’t worked this time.

This was a federal case tried in Miami federal court. Like all my cases, I had put my heart and soul into this one. Many months of preparation went into this trial. I was determined to acquit my client who was charged with several very serious federal criminal offenses.

The edgy waiting was suddenly broken when a bailiff came in bearing a note for the judge from the foreperson of the jury. (Used to be called “foreman”) The foreperson, selected by fellow jurors, is the person who leads the jury deliberations and announces the verdict. Usually the foreperson is selected because of his or her dress and demeanor and thus is often considered the smartest or most sophisticated of the jurors. A note to the judge from the foreperson can often send a powerful signal about which way the jury is leaning, so we were all keyed up to learn the contents. The judge came out of chambers, took her place on the bench and sat examining the piece of paper for what seemed like an unusually long time. Then she smiled and beckoned the attorneys to come forward. She passed us the note. Here is what it said in its entirety in the exact spelling that was used: “What dose unanimous mean?”

Three women were cited with a violation of a criminal ordinance in Laconia, New Hampshire for displaying their nipples on a beach. They are challenging the ordinance, claiming it is unconstitutional. First, they argue that there is no state law that prohibits their actions. Additionally, they claim the ordinance is discriminatory since men are allowed to go topless. Finally, they contend that their freedom of expression rights are being violated.

There’s some precedent for the New Hampshire State Supreme Court to consider when deciding this issue on Feb 1st of this year. In October, a U.S. District Court judge ruled that a public indecency ordinance in Missouri was not unconstitutional even though it allowed men to show their nipples but not women. In February, however, a U.S. District Court judge ruled differently, blocking the city of Fort Collins, Colorado from enforcing a law criminalizing women from going topless. The city is appealing the decision.

Those who support the ordinance banning women from going topless argue that unless this behavior is deemed criminal, then women will show up bare breasted to little league games and libraries. They argue that they are simply trying to protect children and families.

INTRODUCTION

Unless you’ve been living under a rock, you must have heard about the 80+ women alleging that Harvey Weinstein harassed and/or assaulted them in some way. Additionally, numerous other similar troubling allegations have been made about other high profile folks like Kevin Spacey, Matt Lauer, Brett Ratner, Charlie Rose and Jeremy Pivens, amongst others. Especially in light of the current climate, many believe with 100% certainty that all allegations made are 100% true and correct. That may be the case. Like most people, I tend to believe that most of the allegations made are true. My heart goes out to every man and woman who suffers any type of harassment and/or abuse. What I am also certain of is that not every allegation is always worthy of belief. After 25 years of practice in the criminal arena as both a prosecutor and as a defense attorney, I know that people lie. Why they do it isn’t always known. It happens, albeit not often. For those who are falsely accused, I have one word to describe what they go through, “Nightmare.” I’ve been asked, “What can you do if you’ve been falsely accused of sexual harassment/misconduct and/or assault?”

ANALYSIS

The story the 16-year-old victim told the cops was that she had been dating my client for several months but then broke off the relationship. A few days later, she said, my client and one of his friends showed up at her house when her mother was away. When she refused to let them in, my client supposedly asked if she would just loan him her cell phone to make a call. When she opened the door to pass him the phone, she said, the two pushed their way into the house and raped her. Now my client and his buddy were sitting in jail charged not only with sexual battery, but also breaking and entering. They faced possible life sentences.

Frankly, I didn’t know whether or not to believe my client. The prosecutor had deep faith in the victim’s side of the story and would only offer 30 years as a plea bargain against the possibility of life if the case went to trial. But then my investigator came up with a very interesting document. Written in the victim’s own hand it was two pages long and entitled “Incidents.” Each page contained several men’s names along with some cryptic numbers, words, symbols and dates. The first name, for example, was “Marlon.” Under that were the words “two times” followed by “butt ass naked” and then three hand drawn stars, six dates and the name of a local high school.

I suspected we had hit pay dirt. I figured this was some kind of list of men with whom the victim had engaged in sex. But to prove that I would have to put her under oath and ask her what it all meant. Trouble is, in most rape cases the Rape Shield Statute prohibits the defense from inquiring into the victim’s past history of sexual escapades on the grounds that even a prostitute can be raped. But there are exceptions to the Rape Shield Statute and I won just such an exception by arguing that the statute didn’t apply when questions of consent were at issue. I dreaded taking a sworn deposition from the young girl in which I would take her through what I knew would be a traumatic recitation if the “Incidents” document was what I thought it was, but I also knew that my client’s future depended upon this single document.

Hypothetical

Imagine this. A guy in Florida shapes his finger like a gun and points his finger at a cop. As he’s doing that, he tells the officer, “I got you now!” You may be thinking, “Well, that’s not a bright thing to do.” Well, I don’t disagree with you. The question that I’d like you to ponder is, “Is what he did a criminal offense?”

Facts

THE ISSUE

A man from Raleigh, North Carolina was recently arrested for leaving his five children at home alone. His oldest child is 8 years old. Victor King, who was bailed out by a total stranger, claims that he had to go to work to support both his children and his wife, who is suffering from stage 4 cancer. Authorities were alerted to the house by a neighbor who called 911, alleging that this was the second day in a row the kids were left alone without adult supervision. Apparently, this isn’t the first time this father has done this. He was convicted of child neglect in California after engaging in a similar act. So, one of the questions raised by this case is, “What should happen to the father?” Also, the bigger legal and moral question is, “How old should kids be before being left home alone?”

ANALYSIS

DISTURBING FACTS

This one is extremely disturbing. An eight-year-old Florida girl was arrested and charged with felonies. She was seen on surveillance footage breaking into cars in Palm Bay. The girl admitted her involvement, telling police that she and two older kids were walking in a park and decided to break into some cars. She was charged with felony burglary to a conveyance and attempted theft.

An arrest of someone so young, seems like an isolated shocking incident. Unfortunately, it’s not. In fiscal year 2014-2015, 80 Florida children under the age of nine were arrested. Two of them were from Miami and four were from Broward County.

INTRODUCTION

Recently, I read several headlines that stated, “Aaron Hernandez Is Innocent.” I immediately thought of the impact of those words. First, I thought how it might affect the readers. Then, my thoughts shifted to how it may impact the families of the victims. After a day of contemplation, I decided that I needed to write this article.

THE FACTS

HYPOTHETICAL

Let’s say that law enforcement seizes your cell phone, believing that it contains evidence of a crime. Let’s further say that they demand that you give them the passcode so that they can get into your phone and retrieve its contents. You tell the officers, “No thank you. I respectfully decline your invitation. My top-notched attorney, Mark Eiglarsh, has warned me not to consent to this type of governmental action.” They then inform the prosecutor of your refusal. The prosecutor then petitions the court to force you to turn over your passcode, arguing that they believe it contains incriminating information. How should the judge rule?

ANALYSIS

THE ALLEGED FACTS

The victims of the Pulse nightclub shooting in Florida are suing both the wife of the shooter and the shooter’s former employer. They accuse them of failing to prevent the abhorrent massacre. The lawsuit was filed in federal court in South Florida.

The 57 victims, consisting of survivors and representatives of the deceased, allege that the security company that the shooter worked for knew of the comments Omar Mateen had made prior to the shootings that resulted in the tragic death of 49 club patrons and the injury of dozens more. Mateen allegedly bragged to a co-worker that he had ties to terrorists and a mass shooter. The law suit alleges that his employer, G4S Secure Solutions, should have immediately taken away his weapons and recommended that his firearms license be revoked. When investigated by both his employer and the FBI in 2013, he claimed that he only said those outrageous things so that his co-worker would stop teasing him about being Muslim. The FBI determined that he did not pose a threat.