Salinas v. Texas, No.12-246: United States Supreme Court Holds that Prosecutors Can Use Pre-Arrest Silence Against Person, And Zimmerman Jurors to Be Sequestered

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The US Supreme Court issued an important, yet highly-divided opinion for criminal law and criminal appeals attorneys today.  In Salinas v. Texas, No. 12-246, the Court held that prosecutors can use a person’s pre-arrest silence to questions posed by police as evidence of guilt.  According to the opinion, since Salinas was not in custody at the time he voluntarily accompanied the police to the station, and because he did not affirmatively invoke the 5th Amendment privilege against self incrimination, his silence to some of the questions posed by police before his arrest could be used against him at trial.

The majority opinion, which was concisely written and is a mere 12 pages long, was written by Justice Alito, and joined by Chief Justice Roberts and Justice Kennedy.  Justices Thomas and Scalia filed concurring opinions, which are equally, if not more concise than the majority opinion.  But, as is so often the case, I find the dissent most persuasive.  As noted by Justices Breyer, Ginsburg, Sotomayor, and Kagan, the mere fact that Salinas did not expressly invoke his 5th Amendment privilege is not necessarily controlling.  Rather, as noted by the dissent, the question should be whether, given all the facts and circumstances of the case, it can be inferred that the individual has invoked his or her constitutional  rights?  See Salinas, slip. op., pg. 12 (Breyer, J., dissenting).

The takeaway from this case: in order to invoke your constitutional rights, you better speak up, because remaining mute is not enough.  To read more about this case on SCOTUSblog, click here.

In Florida news, the Court in the Zimmerman trial has apparently ruled that the jurors will be sequestered.  With all the press coverage of this case, I hope that the defense team is able to somehow pick a fair and impartial jury, and avoid the mess that occurred in the John Goodman case.  See my previous post on the Goodman case here.

Maryland v. King, No. 12-207: A Sad Day for the Presumption of Innocence

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Ok, so here’s the breakdown of the Supreme Court’s decision in Maryland v. King, No. 12-207.  The Court was split 5-4.  In the majority are Justices Kennedy, Roberts, Thomas, Breyer, and Alito.  The dissenting opinion was authored by (who else?) Scalia.  He was joined by Justices Ginsburg, Sotomayor, and Kagan.  I don’t know about you, but that seems like a rather odd lineup.

Now for the substance of the opinion.  After discussing the technical aspects of the Maryland DNA Collection Act, the evolution of DNA technology in the criminal justice system, and the Federal national DNA database known as CODIS, the Court noted that the cornerstone of Fourth Amendment analysis of governmental intrusions is reasonableness.   See Maryland v. King, No. 12-207, slip op. pg. 8.  After weighing privacy interests v. law enforcement interests, the Court, as you know by now, sided with law enforcement.  Rather than go through the opinion in an objective manner, I’d like to point out some passages that I find rather unsettling.

First, in an effort to describe the critical role DNA plays in the identification of arrestees, the Court made the following observations: (1) arrestees often conceal their true identity; (2) people detained for minor offenses often turn out to be the most devious of and dangerous criminals; (3) only hours after the Oklahoma City bombing, Timothy McVeigh was stopped for driving without a license plate; (4) police stopped serial killer Joel Rifkin for the same reason; (5) one of the terrorists involved in the September 11 hijacking was stopped and ticketed for speeding two days before the hijacking.  See King, slip op., pg. 13.

In another disturbing passage, the Court discussed how an arrestee’s past conduct is essential to an assessment of the danger he poses to the public, and that such information will be used by courts to determine whether to release arrestees on bail.  See King, slip. op, pg. 15.  Specifically, the Court notes that knowing that the defendant is wanted for a violent offense based on DNA identification is especially probative of the court’s consideration of the danger the defendant poses to the community.  See King, slip op., pg.  15.  Interestingly, the Court cited to the Federal Bail Reform Act, 18 U.S.C. 3142, as being similar to the Maryland Act.  See id.   If you’re a Florida criminal defense attorney who appears regularly in Federal court, then you already know that the Bail Reform Act is significantly different from bail in Florida’s state courts.  (While criminal defendants charged in Florida state court enjoy a constitutional right to bail, there is no such right under the Federal Act.)  The Court also noted that even if an arrestee is released on bail, development of the DNA identification which reveals a defendant’s unknown violent past can and should be used to revoke his conditional release.  See id. at pg. 17.

I don’t know about you, but the above sections seem to reflect an intent to incarcerate someone out of fear of what may happen in the future, as opposed to the offense for which he or she has actually been convicted.  However, this mentality runs contrary to the cornerstone of the United States criminal justice system: that every person is presumed innocent.

While you should take a few minutes to review the opinion for yourself, the best part of the opinion is no doubt the dissent authored by Justice Scalia.  After reading Scalia’s persuasive commentary, it’s hard to imagine how 5 Justices of the United States Supreme Court were able to reach the decision they did.

Maryland v. King, No. 12-207: United States Supreme Court Holds That Police Can Take DNA Swab As Part of Booking Procedure

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Well, Florida attorneys handling criminal defense and criminal appeals should know that there was a big opinion issued by the United States Supreme Court today.  In Maryland v. King, No. 12-207, the Court held that police may now take a DNA swab as part of the booking procedure of an arrest supported by probable cause.  I haven’t had a chance to read the 50-page opinion yet, but I didn’t want to delay things any further.  Here’s a link to one of the news reports, and another link to a great summary on SCOTUSblog.

Daniel Mark Zavadil: Florida Supreme Court Disbars Member of Florida Bar Who Formerly Served as Fort Lauderdale Police Officer

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Here’s an opinion which might interest South Florida’s criminal defense bar.  Today, May 30, 2013, the Florida Supreme Court has disbarred a former Fort Lauderdale Police Officer named Daniel Mark Zavadil.  In Florida Board of Bar  Examiners re: Daniel Mark Zavidil, No. SC11-1694, Zavadil applied to the Bar in 2007.  Zavadil, slip op. pg. 1.  Although he passed the bar exam, the background investigation revealed information from his days as a police officer which required further inquiry.  He attended an investigative hearing in 2009, submitted a 21 page brief on legal ethics, and was admitted in 2010.  However, the investigation continued, and the Bar held another formal hearing in 2011.  Zavadil, slip op., pg. 2.  Based on the testimony and argument presented at the formal hearing, the Board of Bar Examiners  recommended disbarment of Zavadil.  Id. at pg. 8.  The Court adopted the recommendation and has disbarred him for 18 months.  Id. at pgs. 14-15.

What did Zavadil do that merited disbarment?  In short, he failed to disclose in his bar application several events which occurred while he was a Fort Lauderdale PD officer which reflected on his truthfulness and candor, and failed to testify truthfully and candidly in his defense.  See id at pgs. 13-14.  According to the opinion, Zavadil failed to disclose: (1) the fact that his supervisor filed a complaint against him for “discrepancies, omissions, and misinformation in Zavadil’s reports, as well as a pattern of ‘misrepresenting the facts in order to shift responsibility for [his] identified deficiencies;’” (2) that on November 18, 2008, he received a letter from the Chief of Police, notifying him that he would be suspended for three days, effective in January 2009; (3) that the suspension was rescinded by the City of Fort Lauderdale after Zavadil filed a complaint for injunctive relief in the circuit court; and, (4) the fact that in 2009, Zavadil was relieved from patrol duty, with pay, effective immediately.  Slip op., pgs. 3-6.  The Board of Bar Examiners also found Zavadil’s testimony was “lacking in candor, misleading, and evasive.”  See id at pg. 8.

Zavadil’s Florida Bar profile already reflects his disbarment.

Florida Supreme Court Holds that Public Defender May Decline Future Appointments Based On Office Wide Problems Which Impact Effective Representation

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The Florida Supreme Court issued a pretty interesting opinion right before the Memorial Day weekend–Public Defender, Eleventh Judicial Circuit of Florida v. State, No. SC09-1181.  I remember reading news reports about this case back in 2008 or 2009, and it seemed like a pretty big deal that the Public Defender for Miami Dade County was actually so overloaded that the entire office was filing motions in numerous non-capital felony criminal cases seeking to decline future appointments, arguing that excessive caseloads prevented the office from providing effective representation.  Well, although the opinion left the most interesting matter unresolved (i.e., the question of whether to grant or deny the PD’s motion), the Court did nevertheless hold that the Public Defender could file such aggregate motions where there is an office-wide problem as to effective representation, and that motions to withdraw could be granted pursuant to Florida section 27.5303 so long as the PD shows that there is a substantial risk that the representation of one or more clients will be materially limited by representation to another client.  See Public Defender, slip op., pgs. 25-35.  However, because the case had been pending in the Supreme Court so long, the Court remanded the matter back to the trial court for a determination of whether the conditions underlying the PD’s motions to decline future appointments still exist.

What is the impact of this case?  Well, if the trial court determines that the conditions at the Miami Dade Public Defender’s office are unchanged, and that the Public Defender’s motions should be granted, then that means the cases will have to be handled by other court-appointed counsel.  In other words, more work (and fees) for other court-appointed criminal defense attorneys!  Now, if we could just get the Florida Legislature to repeal the fee caps imposed last year for criminal defense and criminal appeals lawyers . . .

I hope you had a great Memorial Day weekend!

Moncrieffe v. Holder, No.11-702: United States Supreme Court Holds That State Criminal Statute Penalizing The Sharing Of Small Amount Of Marijuana Does Not Constitute Aggravated Felony For Purposes Of Immigration Statute

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It’s been a really busy week, but I found a recent opinion that I wanted to pass along to all of Florida’s criminal defense and criminal appeals lawyers out there.  If you handle drug cases with potential immigration/deportation consequences (i.e, ANY drug cases where your client’s status is either unclear, or your client is clearly a noncitizen), then you should take a few minutes to read the United States Supreme Court opinion of Moncrieffe  v. Holder, No. 11-702.

The facts in the Moncrieffe opinion are pretty typical: Moncrieffe, a Jamaican citizen, came to the U.S. legally at the age of 3.  See Moncrieffe, slip op., pg. 3.  During a 2007 traffic stop, cops found 1.3 grams (yes, grams) of marijuana in his car.  Moncrieffe pled guilty to possession of marijuana with intent to distribute under Georgia law (obviously, Georgia law is a lot more harsh than Florida law).  Under a Georgia statute which allows for more lenient treatment to first time offenders, the trial court sentenced Moncrieffe to 5 years of probation, after which his record would be expunged.  See id.

Alleging that the conviction constituted an “aggravated felony” for purposes of 21 U. S. C. §841(a), punishable by up to 5 years’ imprisonment under 21 U.S.C. 841(b)(1)(D), the Government deported Moncrieffe, and the Board of Immigration Appeals affirmed.  See id at pg. 3.  After the 5th Circuit denied Moncrieffe’s petition for review, the United States Supreme Court granted cert, and reversed.

In holding that Moncrieffe’s conviction under the Georgia statute did not qualify as an “aggravated felony” under the Immigration and Nationality Act (INA), the Court rejected the Government’s application of the “categorial inquiry” or “categorial approach,” which is employed  to determine if an offense constitutes an aggravated felony.  See id , slip op., pgs. 4-19.  Although Justice Sotomayor’s majority opinion is rather technical in nature, this line pretty much sums up what the Court thinks of the Government’s argument:

“In short, to avoid the absurd consequences that would flow from the Government’s narrow understanding of the categorical approach, the Government proposes a solution that largely undermines the categorical approach.  That the only cure is worse than the disease suggests the Government is simply wrong.”

Id., slip op., pg. 19.  Ouch.

Unfortunately for Moncrieffe and others in his situation, escaping aggravated felony treatment does not necessarily lead to a conclusion that deportation has been avoided.  Rather, the Court cautioned that it only means that mandatory removal has been avoided.  Rather, under 8 U.S.C. §1227(a)(2)(B)(i), a marijuana distribution offense still renders a non-citizen deportable as a “controlled substances offender.”  See id., slip op., pg. 19.  At that stage, the non-citizen will have to seek asylum, or cancellation of the removal proceedings, assuming the non-citizen meets the other criteria under 8 U.S.C. §§1158(b), 1229b(a)(1)–(2).  As acknowledged by the Court, determinations of asylum or cancellation of removal proceedings are purely discretionary with the Attorney General.

What’s the take away from this case, you ask?  Well, although the Court rejected the Government’s attempt to define possession of a small amount of marijuana as an aggravated felony, the fact remains that non-citizens convicted of even the most low level misdemeanor drug offenses, including first-time offenders who have successfully completed required probationary periods as a prerequisite to expunction, remain subject to possible deportation proceedings.

Van Poyck v. State, SC 73662: Florida Supreme Court Order Requiring Prior Counsel to Remain As Counsel And Other Developments

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Florida’s criminal defense and criminal appeals attorneys who are interested in the developments of the Van Poyck death penalty case may want to know that I found the Supreme Court order requiring Van Poyck’s prior counsel to remain on the case.  If you want to read it, click here.  In response to the Order, two of Van Poyck’s previous attorneys have just filed a Motion to Vacate and Alternative Motion for Rehearing of the Supreme Court order.

If you have time and are interested in all the procedural drama, feel free to view the other orders and motions in the case by clicking here.

After Winning a New Trial, Goodman Loses a Lawyer, and Death Row Inmate William Van Poyck Wins A Team of Lawyers

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Well, after winning a new trial (while the case is on appeal, no less) John Goodman lost a key member of his criminal defense team, Robert Black.  For the articles in the Palm Beach Post and Sun Sentinel, click here and here.  Maybe this means that Goodman and the State have reached a plea agreement?

Meanwhile, the Palm Beach Post also reports that there’s quite a bit of legal havoc in the William Van Poyck death penalty case.  Although I have not yet been able to locate the order issued by the Florida Supreme Court, the Court has apparently pulled a surprise move.  Even as Van Poyck’s June execution date approaches, the Court appears to have appointed a team of lawyers from Palm Beach County to represent Van Poyck.  For the article in the Palm Beach Post, click here.

To me, the Van Poyck case highlights just a fraction of what is wrong with Florida’s death penalty.  If the case is still important enough for the court to appoint new lawyers, even at this late stage, why should the Governor be signing the warrant for Van Poyck’s execution?  And why is it that after years of being unable to reach any sort of agreement with regard to amending the death penalty statute so as to render it constitutional, (why bother with that?), the Florida legislature is able to enact legislation that limits the appeals process, thereby actually speeding up the death penalty executions?

Palm Beach County News: John Goodman Gets a New Trial and Lindsay Lohan Comes to Town for Rehab

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Palm Beach polo magnate John Goodman caught a lucky break- it looks like on Friday, May 3, 2013, Palm Beach Circuit Court Judge Jeffrey Colbath granted Goodman’s motion for new trial based on juror misconduct.  Criminal defense and criminal appeals lawyers know that such a break is extremely rare indeed.  To read of an article about the defense victory, click here.  To read my previous post on Goodman’s motion, click here.  I wonder if the State will prosecute the juror for perjury based on his statements given during voir dire . . .

On another note, who knew that Palm Beach County was home to a rehab facility for Hollywood’s rich and famous?   According to reports on CNN and WPTV. com, Lindsay Lohan is going to complete her rehab at the Lukens Institute in Palm Beach Gardens.  If anyone sees Lindsay around town, be sure to give her a friendly wave!

Eleventh Circuit Reverses Two Cases on Sentencing Issues: United States v. Washington, No. 11-14177, and United States v. Hamilton, No. 12-10899

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If you handle Federal criminal defense cases or criminal appeals in the Eleventh Circuit, you’re well aware that the Government almost always wins in criminal appeals.  But today, I wanted to pass along two recent opinions where the Government lost on different sentencing issues.

In United States v. Washington, No. 11-14177, the Eleventh Circuit reversed a sentence because the Government failed to adduce any evidence that there were 250 or more victims as required by the section 2B1.1(b)(2)(C) enhancement of the Sentencing Guidelines.  Since the opinion is a mere 10 pages, you should take a moment to read it.  But if you don’t have time, here’s the Cliff’s Notes version: the best part of the slip opinion comes on page 9, where Judge Jordan, writing for the Court, declined the Government’s request to allow the Government the chance to prove, on remand, that there were 250 or more victims.  In so doing, Judge Jordan emphasized that despite the fact that the Government was aware that Washington specifically objected to the number of  victims charged, the Government made no effort whatsoever to prove up the number of victims.  See Washington, No. 11-14177, slip op., pg. 9.  Because the Government failed to meet its burden of proof on the contested sentencing issue, the Eleventh remanded the case to the District Court with directions for the District Court to resentence Washington to the 2-level enhancement based on his concession on appeal that the offense involved only 10 or more victims.

Next, in United States v. Hamilton, No. 12-10899, the Court reversed two District Court orders denying Hamilton’s Motions for Modification or Reduction of Sentence filed pursuant to 18 U.S.C. § 3582 (c)(2) because the District Court’s findings as to drug quantity were insufficient.  Although the opinion is a bit longer at 25 pages, it’s still a fairly quick read, as most of the opinion is devoted to a statement of the facts and procedural history.  The slip opinion’s analysis starts at page 16.  After quickly discussing the principles which govern section 3582(c)(2) motions and two of its prior decisions addressing drug quantity, the Court pointedly noted the flaws of the District Court’s previous orders, and explained the District Court’s task on remand.

Maybe it’s just me, but based on some of the opinions I’ve read over the last few months, it seems as though the Eleventh Circuit is becoming less of a rubber stamp for the Government.  Only time will tell, but I sure hope the trend continues.