Articles Posted in Articles of Interest

FACTS

This story got my attention. Ricky Weinberger was recently arrested on Miami Beach for allegedly making a bunch of “harassing” telephone calls to law enforcement. Apparently, he also posted lots of threats against police on the bulletin board of an on line police themed web site. Most troubling for law enforcement is what they found at his small apartment when they arrested him. Weinberger had stockpiled 16 weapons, which allegedly included six assault rifles, along with 4500 rounds of ammunition. Police believe this was a catastrophe waiting to happen.

Judge Mindy Glazer held Weinberger with no bond. He has three other pending criminal cases that were made against him over the past year. His attorney attempted to secure his freedom by arguing that his both his speech and weapons possession were constitutionally protected. That argument failed.

INTRODUCTION

It was an eerie feeling. As I walked into Terminal 2 of the Fort Lauderdale/Hollywood Airport, just days after the horrific shooting, I was consumed with emotion. It hit me that I was in “The room where it happened.” (Yes, even when describing something dark and emotional, “Hamilton” references still flow out of me) There was an overwhelming presence of media and law enforcement both inside and outside of the terminal. I was headed to Minneapolis for an appearance in federal criminal court. My return flight on Delta Airlines into Fort Lauderdale was the exact one the shooter had taken just days earlier. This case still consumes me. I find myself frequently discussing it with friends and colleagues. I’ve chosen to write this article because I’ve found from my discussions that there’s a lot of misinformation concerning this case. Also, there are many wondering what will likely happen to the shooter, Esteban Santiago. To best be of service in this article, I’ve attempted to answer the most common questions that I believe are on the minds of most people at this time.

QUESTIONS

INTRODUCTION

On March 30, 1981, as former President Ronald Reagan left the Washington Hilton Hotel in Washington D.C., John Hinckley Jr. attempted to assassinate the president. Hinckley drew his revolver and fired six rounds, injuring President Reagan and three other individuals. Roughly a year after the assassination attempt, Hinckley, who faced 13 criminal charges, was found not guilty by reason of insanity and was committed to St. Elizabeth’s Hospital, a federally operated psychiatric facility in Washington D.C. Today, 35 years after that fateful day Hinckley decided to pull the trigger, a federal judge ruled that he shall be released from St. Elizabeth’s Hospital to live with his mother in her home as early as August 5th. Many of the questions that members of the “Court of Public Opinion” are asking includes, “How could he possibly be released? Why isn’t he serving a life sentence? How was he ever initially found not guilty by reason of insanity?”

ANALYSIS

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

INTRODUCTION

Having practiced criminal law for over two decades as both a prosecutor and as a defense attorney, there’s one question I get asked more than any other, “Should I blow?” Solely for those whose minds tend to travel to unusual places, the “blow” I’m referring to concerns the breath machines police use during drunk driving (DUI) criminal investigations.

DON’T DRIVE WHEN IMPAIRED

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

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

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

INTRODUCTION

This really happened, recently. Brandy Burning, a single mom, was unlawfully driving in the HOV lane. That caused Broward County, Florida sheriff Lt. William O’Brien to pull her over. After some brief conversation, Burning then said the following to the deputy, “Oh, I forgot to tell you I was recording our conversation.” O’Brien then informs her that she has committed a felony and demands the cellphone. Burning refuses. O’Brien then climbs into the car from the passenger side and attempts to forcefully take her phone. Burning was arrested for the traffic infraction and resisting arrest. She wasn’t charged with any crimes related to the recording. Ultimately, prosecutors dropped all charges. Now, Burning plans on filing a law suit, alleging battery, false arrest and false imprisonment. She calls her experience “traumatic,” after spending a night in jail and sustaining bruises and scrapes during the incident.

This case raises two important issues. First, was the recording of her police encounter unlawful? Second, will she win her false arrest/civil lawsuit?

“That lawyer is a scumbag!” “That doctor rips off his patients.” “My professor is a total pervert.” Be careful. Depending on what words you use, your Tweets could subject you to a lawsuit. Just ask Courtney Love.

In a landmark case, singer-actress Courtney Love is currently being sued for libel after what she tweeted in 2010. In that tweet, she wrote that her then lawyer, Rhonda Holmes, had been “bought off” when she wouldn’t assist Love with her lawsuit against the managers of Kurt Cobain’s estate. Cobain, as you probably know, is Love’s ex-husband and former Nirvana lead singer.

While there have been other similar lawsuits concerning Twitter libel, this is the first one to actually make it to trial in the United States. As a result, Love’s monumental case can have a huge impact on social media. The “average Joe tweeter” could find themselves in court facing defamation charges depending on how this case is decided.

“Brady.” For most, that word conjures up other words and phrases that include, “Marsha, Marsha, Marsha!” It also may spark words like, “The Bunch,” “Greg,” and/or even “Sam the Butcher.” Others may think of “the man that has it all,” star Patriot quarterback Tom Brady. For most of us who work within the Criminal Justice System, Brady refers to the prosecutors’ obligation to provide defendants any “exculpatory evidence,” which includes favorable evidence to the accused, evidence that may reduce a defendant’s potential sentence and/or evidence that could impeach the credibility of a witness. The principle was represented in the landmark 1963 Supreme Court decision Brady vs. Maryland.

In that case, a guy by the name of Brady and a buddy of his named Boblit were prosecuted in Maryland for murder. Brady confessed to playing a part in the murder, however, he passionately told law enforcement that it was Boblit who did the actual killing. While prosecutors had a written confession from Boblit that he had done the killing all by himself, they failed to turn that document over to Brady’s attorneys. After his conviction and sentencing, he appealed, arguing that prosecutors violated his due process rights because Boblit’s statement was material to either Brady’s guilt and/or potential punishment. He was successful in persuading the Supreme Court that had prosecutors turned over that statement, Brady’s outcome, certainly his sentence, would have been different.

In spite of the Brady ruling, too many state and federal prosecutors choose to ignore their obligation to play fair. Every day it seems we hear of innocent defendants wrongfully convicted, many spending decades in prison. Often, the cause is prosecutors’ failure to fulfill their constitutional duty and instead, withhold crucial evidence in numerous cases. A recent study revealed that 43% of those defendants falsely accused were as a result of prosecutors committing Brady violations. Why do they (obviously not all, but many) routinely do it? Cause’ they can, and are rarely held accountable for their actions.