Articles Posted in Articles of Interest

INTRODUCTION

At 4:20 pm, on a warm South Florida evening, a trooper stops a vehicle driven by Mary Wanna. Her vehicle had a broken tail light. When the trooper approaches, he smells the odor of marijuana emanating from inside the vehicle. Mary appears to be lethargic and has the odor of an alcoholic beverage coming from her breath. Her eyes are glossy and bloodshot and her movements are slow. The trooper asks the driver if she has been drinking. The driver responds, “No, not recently.” The trooper requests that the driver exit her vehicle. Mary slowly exits and seems to have difficulty standing without swaying. The trooper requests that she perform some “field sobriety exercises,” (also known as “roadside tests”). The trooper concludes that Mary “failed each and every test given.” He places her under arrest for DUI (Driving Under The Influence). Back at the station, Mary is asked to blow into the breath machine and blows a .000, indicating that no alcohol is present in her system. The officer then requests that Mary provide a urine sample. Several weeks later, the lab report is made available and it reveals the presence of THC, the active ingredient in marijuana. Can prosecutors prove their case?

ANALYSIS

WHAT HAPPENED?

By now, you’ve heard the “King of Pudding” was convicted of three felony rape counts. His first trial ended in a hung jury. That means that jurors couldn’t agree to a unanimous verdict. So what changed from the first to the second trial that led to his conviction? It’s a simple formula: 5 is better than 2…as in 5 victims testifying for the prosecution is better than only two victims. For reasons the judge failed to articulate, he allowed five of Cosby’s prior rape victims to testify in the second trial while previously only allowing two. That certainly aided the prosecutions’ efforts of tipping the scales of evidence to “proof beyond and to the exclusion of every reasonable doubt.”

As persuasive as the five testifying victims were, what jurors found equally, if not more compelling, were Cosby’s own words. No, he didn’t take the witness stand. That was a good strategic decision as he would have been obliterated on cross examination. His words were those he spoke to civil lawyers in a prior civil suit. In that deposition, which was read to jurors, Cosby admitted under oath a number of disturbing things, which jurors found to be proof of guilt. The most compelling admission was his use of Quaaludes which he liked to provide to young women in order to induce them to have sex with him. He gave them out to women like non rapists give out drinks to their dates. He also admitted that he went to great lengths to conceal these affairs from his wife, who he calls, “Mrs. Cosby.”

INTRODUCTION

Based upon what happened in a bond hearing today in Broward criminal court, you would have thought that prosecutors uncovered evidence proving that Zachary Cruz, brother of Marjory Stoneman Douglas shooter Nikolas Cruz, actually conspired with, and assisted his brother carry out his abhorrent crimes. Well, that didn’t happen. In case you haven’t heard, Zachary Cruz, who is the 18-year-old younger brother of shooter Nikolas Cruz, was arrested yesterday for trespassing at Stoneman Douglas High School. At his bond hearing today, prosecutor Sarahnell Murphy passionately requested that Judge Kim Mollica raise his bond for the misdemeanor charge from the standard amount of $25.00 to $750,000. While the judge didn’t go along with the State’s request, she did impose a bond in the amount of $500,000, along with many other significant additional non-monetary bond conditions. After today’s bond hearing, many are asking the question, “Was the $500,000 bond imposed for Nikolas Cruz justified?”

ANALYSIS

INTRODUCTION

The irony is that the Florida International University pedestrian bridge that collapsed last week was built with the intention that it would provide students a safer way to cross a canal and six lanes of traffic. It didn’t quite work out that way. As a result of the catastrophe, six people tragically lost their lives. Many investigations are currently underway to determine the cause of the collapse. Regardless of the cause, there will definitely be a number of civil suits filed, likely soon. The question that many are asking is, “How likely are criminal charges?”

ANALYSIS

INTRODUCTION

For years, one of the arguments that we’ve heard about cigarettes is that they are filled with nicotine, which is addictive, which causes health problems and even death. That argument has been successfully made in lawsuits against “Big Tobacco,” the companies responsible for putting those “cancer sticks” into the stream of commerce. The argument is that those companies knew, or should have known, that their product would cause harm, and thus, they have to pay. A similar argument has been made against the companies that manufacture harmful asbestos. Would that same argument likely work against gun manufacturers? The argument being, “You knew, or should have known, that your product would end up in the hands of a shooter like Nicolas Cruz and that it was reasonably foreseeable that he would use your product for a criminal act. Thus, you should have to pay damages to the many that were harmed.”

ANALYSIS

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