Florida Criminal Appeals Attorney Law

Appellate Law, Criminal Defense and Appeals and Post Conviction Relief in Florida Courts, Federal District Courts and the 11th Circuit

Month: July, 2011

Perp Walks: Guilty Until Proven Innocent?

Perp walks. We’ve all seen them on the news.  The police parading the suspects for all the news cameras to get their shots of the guy in handcuffs.  What is the history of the perp walk?  For a discussion of the perp walk, you can read an interesting article by NPR by clicking here.  Inspired by the perp walk of Dominique Strauss Kahn, French citizen and former head of the IMF, NPR also published another report titled “French Law, American Custom and the Perp Walk.”

People have been debating the usefulness of perp walks for some time now.  Michel Martin published a thought provoking article on the usefulness of perp walks last August.  Only weeks after Strauss Kahn made his perp walk, New York City Mayor Bloomberg has spoken out against perp walks, calling them outrageous.  It’s too early to say if this could be the beginning of the end for the perp walk.  Only time will tell.  But in my view, perp walks are completely at odds with one of our legal system’s core principles: innocent until proven guilty.

High Profile Cases-Some Tips for Trial and Appeal

In today’s media culture, almost any criminal case can become a high profile case.  All it seems to take is (1) the involvement of a relatively well known or notorious person ; (2) a sympathetic or outrageous crime; and (3) news coverage by the media.  If circumstances are right, even purely local cases can be picked up by the national media and become high profile.  (Anyone hear of the Casey Anthony trial??)  The purpose of this post is to make a quick note of some things that an attorney may want to consider prior, during, and after trial.

Investigation phase:  At some point, an attorney may learn that his or her client is the target of a criminal investigation.  While this may be more common in the Federal system, it may also occur in the State system where police are conducting a long-time criminal investigation, or a large grand jury investigation is being conducted at the direction of the Statewide Prosecutor.  Once an attorney is notified or learns that the investigation has targeted the client, an attorney may want to consult with the client about the possibility of approaching the relevant authorities to see if a deal can be worked out prior to indictment.  This kind of deal may entail cooperation in exchange for an indictment on a lesser offense, or perhaps the withholding of an indictment altogether.

Prior to and at the start of trial:  After the client gets charged with a crime, where the case involves co-defendants or multiple offenses, an attorney needs to consider a motion to sever pursuant to Fla. R. Crim. P. 3.152.  If the case has been the subject of pre-trial publicity, counsel may wish to consider moving to change venue pursuant to Fla. R. Crim. P. 3.240.  At the time of jury selection, counsel may wish use Rule 3.281 as a basis to request a list of all the prospective jurors, including their names and addresses and the juror questionnaires.  A search of the jurors’ names on Google may reveal valuable information about them, and such information could serve as a basis to exercise a peremptory strike or challenge for cause.  Where pre-trial publicity has been high or negative, counsel may wish to think about moving to sequester the jury pursuant to Fla. R. Crim. P. 3.370(a) to insulate them from publicity during the trial.  Motions to sequester and change venue are left to the discretion of the trial judge, so counsel should be sure to make a good record by filing a thorough written motion in compliance with the rule, and renewing it whenever necessary, prior to and during the trial.  The better record counsel can make of the court abusing its discretion, the better chances counsel may have of prevailing on any subsequent appeal.

Jury selection:   To state the obvious, jury selection is an extremely important time of the trial.  Attorneys may wish to come prepared with a list of the prospective jurors that was requested pursuant to Rule 3.281, and be ready to argue why certain potential jurors should be stricken for cause at the outset.  The more jurors that are successfully challenged for cause, the more peremptory strikes can saved for use later on.  Attorneys should remember to make as good a record as possible for appeal by stating objections on the record and the reasons for the objections.  Objections to the panel should be renewed at the time the panel is selected, and again prior to the time that the panel is sworn.  If objections are not made and renewed, an appellate court may find that the jury selection issues have not been preserved.  In really high profile cases, jury selection may take days or weeks.  In such cases, counsel should ask the court for additional challenges for cause and peremptory strikes.  Courts may grant such requests in their discretion.

Post verdict:  If the jury renders a guilty verdict, and if there is reason to believe that the verdict is subject to legal challenge, counsel may move to interview the jurors pursuant to Rule 3.575.

Post trial:  After trial, counsel may move for a new trial under Rules  3.580 and 3.600.  If the evidence sustains a conviction for a lesser offense, a court may, pursuant to Rule 3.620, enter a judgment for the lesser offense.

Bail pending appeal:  Where an attorney intends to appeal a conviction, the court may release the defendant pending appeal pursuant to Rule 3.691.

The Wait is Killing Me! Still No Word from Court in Florida Death Penalty Case

Everyone knows that the wheels of justice turn slowly, but the wait in this case is killing me!  (No pun intended in this death penalty case).  It has been one month now since United States District Court Judge Jose Martinez ruled that Florida’s death penalty scheme is unconstitutional.  (See my previous post dated June 23, 2011).  After Judge Martinez issued the Order, the State of Florida, through the Office of the Attorney General, filed a motion asking the Court to reconsider the decision.  The Court has yet to rule on the motion.  It seems pretty unlikely that the Court will grant the State’s motion.   The Court will probably deny the State’s motion, paving the way for the State to appeal the decision to the Eleventh Circuit, as Attorney General Pamela Bondi said will be done in a report dated June 28.  Let’s just get the appeal moving already so that the case can make it’s way to the US Supreme Court!

Abdel Odeh v. State, 4D09-994: First Degree Murder Conviction Affirmed-Preservation, Invited and Fundamental Error, and Claims of Ineffectiveness on Appeal

On July 13, 2011, the Fourth DCA issued an opinion in Abdel Odeh v. State, 4D09-994, affirming Odeh’s conviction and sentence for first degree murder.  In the opinion, the Court addressed several concepts which are important to criminal appeals: preservation, invited error, fundamental error, and attempts to raise ineffective assistance of counsel for the first time on appeal.

With regard to invited error and fundamental error, at trial, jury was allowed to hear a comment made by a Detective, during the interrogation of Odeh, that Odeh could not legally claim the defense of justifiable use of deadly force.  Although the Court agreed that it was error to have allowed the jury to hear the comment, the Court found that the error was invited because he responded to a question on cross examination.  Moreover, the Court rejected Odeh’s claim that the error was fundamental because the opinion testimony did not permeate the entire trial.  The Court also found that the trial court erred in its jury instructions on the justifiable use of deadly force.  However, Court determined that the error, which had not been preserved by a contemporaneous objection, was not fundamental because the State made no use of the trial court’s erroneous instruction.  The Court also noted that Odeh’s counsel agreed to the erroneous instructions.

Finally, the Court addressed Odeh’s claim of ineffective assistance of counsel.  In so doing, the Court observed the longstanding rule that such claims cannot properly be raised for the first time on appeal unless they are apparent on the face of the record.  Because Odeh’s claims were not apparent on the face of the record, the Court declined to reverse Odeh’s conviction on such basis.

For previous posts on preservation and fundamental error, click here. For a discussion on filing motions for postconviction relief in state court as a prerequisite to federal habeas review, click here and here.

What is it About the Casey Anthony Trial that Inspires the Middle Finger?

Shortly after the verdict, one of Anthony’s lawyers was photographed flipping the bird.  That attorney, Cheney Mason, is now the subject of a Florida Bar complaint.  To see the photo and read the article, go here.


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