Monthly Archives: November 2011

Sirhan Sirhan files Petition for Writ of Habeas Corpus in Federal Court in Connection with Conviction for 1968 Murder of Robert F. Kennedy

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For those South Florida criminal defense attorneys who follow Kennedy conspiracy theories, I came across an article you might want to check out.  Sirhan Sirhan was convicted of murdering then-Senator Robert F. Kennedy in 1968, just after he won the California primary.   The article reports that in a habeas corpus petition filed in federal court in Los Angeles, attorneys for Sirhan Sirhan allege that he was convicted based on prosecutorial misconduct: namely, that someone switched a bullet in evidence at trial to win the conviction.  Forensic evidence allegedly supports the switched bullet theory.  While the report notes that in the habeas petition, attorneys for Sirhan Sirhan acknowledge that habeas petitions are difficult to win, the attorneys also request, in the alternative, that the court conduct an evidentiary hearing to reexamine the case.

It will be interesting to see what the Court will do, particularly with the request for evidentiary hearing.  Timeliness issues aside, while evidentiary hearing are rarely held in habeas cases, they are sometimes conducted where claims of prosecutorial misconduct are raised.  We’ll have to keep our eyes on this one.

Two Criminal Defendants ask Palm Beach County Court to Resentence them Pursuant to Graham v. Florida, 130 S.Ct. 2011 (2010)

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It’s not every day that a convicted person gets the chance to walk free from prison after being sentenced to life without parole, but that’s exactly what two local criminal Defendants have asked a local court to allow them to do.  As reported by both the Sun Sentinel and the Palm Beach Post,  defendants David Slocum and Emmanuel Paul argued to Palm Beach County Circuit Judge Edward Garrison that he erred in 1995 when he sentenced the two of them, who were 16 years old at the time, to life in prison for raping an individual named Jenny Clark, a 17 year-old student from Switzerland.  At a hearing conducted on Tuesday, November 21, 2011, the court took testimony and listened to argument of counsel.  Rather than ruling from the bench, the Court has reset the matter for continued hearings on December 15 and 16, 2011.

Although not named in the article, the case most likely relied on by Defendants Slocum and Paul is Graham v. Florida, 130 S.Ct. 2011 (2010), wherein the United States Supreme Court held that sentencing a juvenile to life imprisonment without parole for a non-homicide offense violates the Eighth Amendment.  Interestingly, Graham originated from Florida’s state courts.  When Graham was 16, he and several other youths attempted to rob a barbecue restaurant in Jacksonville.  Graham and one of his accomplices struck the restaurant manager in the head with a metal bar, but then fled after the manager started yelling.  The manager required stitches, and no money was taken.  Graham was charged as an adult, and was given a combination of county jail time and probation.  Unfortunately for Graham, he was arrested again for two more robberies only six months later.  After considering the evidence as to the violations of probation and the new charges, the court ultimately sentenced Graham to life imprisonment.  Because Florida abolished its parole system in 2003, Graham was only be eligible for release if he were granted clemency.  Graham filed a motion challenging his sentence under the Eighth Amendment, but the trial court denied it.  The First DCA affirmed the denial, again finding no violation of the Eighth Amendment.  See Graham v. State, 982 So.2d 43 (Fla 1st DCA 2008).  The Florida Supreme Court declined review.

Although long, the United States Supreme Court opinion is an interesting read because, like many sentencing opinions, it contains a lot of empirical data from around the country and from other nations.  Sadly, the Court noted that of the 123 juvenile nonhomicide offenders serving sentences of life without parole, 77 were serving sentences imposed in Florida.  In support of its holding that sentencing a juvenile to life without parole for a non-homicide offense violates the Eighth Amendment, the Court reasoned that (1) because juveniles have lessened culpability they are less deserving of the most severe punishments; (2) life without parole is “the second most severe penalty permitted by law;” (3) juvenile offenders sentenced to life without parole will, on average, serve more years and a greater percentage of their lives in prison than adult offenders; (4) sentencing a juvenile to life without parole for a non-homicide offense lacks “any legitimate penological justification” and is therefore disproportionate to the offense; and, (5) none of the traditional reasons justifying life without parole for adults (deterrence, retribution, rescidivism/incapacitation, and rehabilitation) apply to juveniles who commit non-homicidal offenses.  Because sentencing a juvenile who committed a non-homicide offense to life without parole “improperly denies the juvenile offender a chance to demonstrate growth and maturity,” the Court held that States must “give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”

How the States comply with the Graham directive to provide a “realistic opportunity to obtain release” was left open by the Graham opinion.  The cases of Slocum and Paul would seem to be a real-time application of Graham.

Federal Courthouse in West Palm Beach Gets Two New United States Magistrate Judges

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Since the cat is out of the bag for several hours now, I can now comfortably say congratulations to both of the newly-appointed United States Magistrate Judges.  Mr. Dave Lee Brannon has served as a longtime Assistant Federal Public Defender, and Ms. Kimberly Abel has served as a longtime Assistant United States Attorney.  Congratulations to both!

Oral Argument Held in Supreme Court in United States v. Jones, 10-1259

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For those South Florida criminal defense attorneys who like to follow the oral arguments in the United States Supreme Court, I thought I’d let you know that oral argument occurred in the Supreme Court case of United States v. Jones, no. 10-1259, last week.  In a previous post, I mentioned that this is the case where the Supreme Court will be deciding whether the police need a warrant to install a GPS tracking device on a vehicle to monitor the movements of the vehicle over an extended period of time.  For a summary of the argument, visit SCOTUSblog.  You can also visit the website of the Supreme Court to view a transcript of the argument, or to listen to a real-time or mp3 recording of the argument by clicking here.

Joe Paterno and His Failure to Report Child Abuse: What Might Happen in Florida?

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By now, most everyone out there has heard of the scandal surrounding Penn State’s Joe Paterno and the former defensive coordinator Jerry Sandusky.  I woke up this morning to hear a report that Paterno had been fired, and that students have been protesting.  According to the reports, Joe Paterno was told by a university graduate assistant that the assistant witnessed Sandusky having sex with a boy in the football complex showers in 2002.  CNN reports that Sandusky met the boy, and others, through a charity that he founded to help troubled youth.  Paterno reported the information to his boss at the university in 2002, but not to law enforcement.  That caused me to think-what if this had happened in Florida?  Would Joe Paterno have any legal duty to report the case of child abuse to law enforcement?  Would he be liable in any way for not reporting it to law enforcement?  The answer is hard to predict.

Today, chapter 39 of the Florida Statutes governs the area of reporting child abuse.  Under section 39.201(1)(a), reports are mandatory under certain circumstances.  The section provides,

“Any person who knows, or has reasonable cause to suspect, that a child is abused, abandoned, or neglected by a parent, legal custodian, caregiver, or other person responsible for the child’s welfare, as defined in this chapter, or that a child is in need of supervision and care and has no parent, legal custodian, or responsible adult relative immediately known and available to provide supervision and care shall report such knowledge or suspicion to the department in the manner prescribed in subsection (2).”

Fla. Stat. 39.201(1)(a) (emphasis added).

The phrase “any person,” as used in Florida section 39.201, makes the statute appear to be fairly broad.  However, the other emphasized language, “by a parent, legal custodian, caregiver, or other person responsible for the child’s welfare,” may have the effect of restricting the scope of the statute to reports concerning abuse perpetrated by those specifically listed individuals.  In one case, that very argument was successful in the trial court.  See Drudge v. City of Kissimmee, 581 F. Supp 2d 1176, 1189 (M.D. Fla. 2008) (trial court dismissed charges against teacher for failing to report suspected child abuse by fellow teacher because the court determined that the statute did not require the reporting of a public school teacher’s abuse of a student).

Florida section 39.205(1) makes it a first degree misdemeanor to knowingly and willfully fail to report, or to knowingly and willfully prevent another person from reporting, a suspected case of child abuse.  Under 39.205(2), it becomes a third degree felony to knowingly and willfully fail to report child abuse, where the person who should have reported the abuse is 18 years of age or older and living in the same house as the child victim, unless the person who failed to report the abuse is a victim of domestic violence or other mitigating circumstances exist.

Apart from cases involving Florida’s Department of Children and Families, which I’m not discussing here, not many cases have been reported in this area.  Florida’s Fourth District Court of Appeal has held that the predecessor statute, section  415, part 1, did not create a civil cause of action for failing to report abuse.  See Mora v. South Broward Hosp. Dist., 710 So. 2d 633 (Fla. 4th DCA 1998).  In another case, Barber v. State, 592 So. 2d 330 (Fla. 2d DCA 1992), the court held that the predecessor statute, section 415.513(1), was not overly broad.  I was only able to locate two reported cases involving arrests for failing to report child abuse.  See Drudge, 581 F. Supp 2d 1176 (finding that officer who requested arrest warrant under section 39.205 was immune from liability under section 1983 because the request for the arrest warrant was reasonable at the time it was made); Graham v. State, 779 So. 2d 604 (Fla. 2d DCA 2001) (noting that defendant had been sentenced for lewd and lascivious conduct in the presence of a child under sixteen, and for “failure to report, a second-degree misdemeanor in violation of” sections 39.201 and 205).

How Florida’s Convicted Felons Can Apply to Restore Their Civil Rights

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In March of 2011, the media quietly reported that the newly-elected Governor of Florida, Rick Scott, and his Cabinet changed the rules governing the application process for restoration of civil rights.  According to the report, the public and press was given little to no notice of the change in the rules, and little public comment was permitted before the Cabinet unanimously voted the changes into effect.  The most dramatic effect of the change: instead of being granted an automatic restoration of their civil rights, those convicted of non-violent crimes now have to wait for five years before being permitted to apply.  Those convicted of violent crimes, such as murder or DUI manslaughter, must wait seven years and will be required to attend a hearing to have their civil rights restored.  Florida’s newly-elected Attorney General, Pam Bondi, is reported to have suggested the change.  Florida’s new rules became some of the harshest in the nation.

Now, merely 8 months later, Governor Scott is reported to be reconsidering changing the rules yet again.  Scott announced his plans to reconsider the rules before meeting with members of the Florida Legislative Black Caucus in Tallahassee.  Although the report states that Scott’s motivation to reconsider changing the rules was the result of his meeting a felon who told him of his problems renting an apartment and finding a new job, the report also suggests that Scott’s change of opinion may have more to do with getting the votes he’ll need to secure his re-election than helping Florida’s convicted felons.  When the changes in the rules were announced, many people in Tallahassee were not happy with the new Governor, including the Florida Legislative Black Caucus.  And remember how he promised to get Florida “back to work”?  Well, being a convicted felon often leads to being unemployable.  A convicted felon cannot vote or hold certain occupational licenses, and sometimes, even if a job doesn’t require a license, employers don’t want to hire convicted felons who haven’t succeeded in getting their rights restored.  So, making it harder for a convicted felon to restore his or her civil rights in turn makes it harder for convicted felons to find work.  (Assuming there are jobs out there to be had!)

It will be interesting to see if the rules will be changed yet again.  But for now, the rules are generally as follows:

(1) Wait the required time period, either 5 or 7 years, depending on the nature of the crime committed, to apply to have rights restored.

(2) To apply for a pardon, you must wait 10 years.  To apply for authority to possess or own a firearm, you must wait 8 years.  No waivers will be permitted.

(3) Before applying, you must have successfully completed all aspects of your sentence, including fines, restitution, community service, and probation.

(4) Before applying, you cannot have been re-arrested during the waiting period.  You must be crime-free and arrest-free for the entire waiting period.

(5) Civil rights will not be automatically restored for any convicted felon.

(6) When applying, some applicants can apply for review “with a hearing,” and others will be required to apply for review “with a hearing.”

(7) If the Parole Board denies restoration of rights “without a hearing,” you may reapply for restoration “with a hearing.”  However, if the board grants or denies any form of clemency, you cannot apply for further clemency for at least 2 years.

(8) People convicted of a specific list of offenses may only apply for restoration of their rights “with a hearing.”  The list of offenses requiring a hearing is quite long, but generally includes sexual offenses, all drug trafficking offenses, all first and second degree drug offenses, possession of a firearm by a convicted felon, RICO, public corruption crimes, DUI manslaughter, DUI Serious Bodily Injury, leaving the Scene of Accident involving Injury or Death, and violent offenses.

(9) To apply, you’ll need to get a certified copy of your conviction, complete the required application, and send it in, making sure to keep a copy of everything for your own files because nothing will be returned to you.  (The ACLU website has an application here, but since it’s hard to tell if the application is current, you may want to use the Florida Parole Commission’s application here, instead.)  Follow all instructions.  As part of your application, it may help to include letters of recommendation from members in your community, such as any employers, leaders of your church, or leaders of any community organizations that you are involved with.  Letters from your own family members may not be given as much weight.

(10) After applying, be prepared to wait months before hearing back.  If your request requires a hearing, you will be scheduled to meet with an Examiner of the Florida Parole Commission for an interview.  The examiner may also contact people who sent letters of recommendation on your behalf, employers, or other individuals who may have information about you.

(11) If your case required a hearing, and your application is granted, an Executive Order will be prepared, signed by the Clemency Board members, and a copy mailed to you.  If your application did not require a hearing, you’ll be sent a Certificate of Restoration of Civil Rights in the mail.

Criminal defense attorneys and others wanting to learn more about how to restore civil rights in Florida can go to the website for the Florida Parole Commission or the Florida ACLU.  The Florida Parole Commission’s contact information is here.

Florida’s Fourth District Reviews 3 Levels of Police-Citizen Encounters: State v. Eric Page, 4D10-4188

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Florida criminal defense attorneys needing a refresher on police citizen encounters need only take a 5 minute look at State v. Eric Page, 4D10-4118.  In the opinion, released November 2, 2011, Florida’s 4th DCA outlined the 3 levels of police-citizen encounters, as provided by the Florida Supreme Court opinion of Popple v. State, 626 So. 2d 185, 186 (Fla. 1993), and held that a police officer’s act of requesting identification to run a warrants check does not convert the stop into one requiring a reasonable suspicion.  In reversing the trial court’s order of suppression, the 4th DCA held that the trial court misapplied Golphin v. State, 945 So. 2d 1174 (Fla. 2006).  The case has been remanded for the trial court to make factual findings, and hold an additional hearing if necessary, regarding whether the encounter was consensual or an illegal stop, whether the officers conducted a search of Page before or after the discovery of the outstanding warrant, and the applicability, if any, of State v. Frierson, 926 So. 2d 1139, 1143 (Fla. 2006).

Update on Shelton issue: Florida Supreme Court Moves up Oral Argument in State v. Luke Jarrod Adkins et al., SC11-1878

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In a recent post, I mentioned that the Florida Supreme Court has accepted jurisdiction over the case of State v. Luke Jarrod Adkins et al., SC11-1878, to decide the constitutionality of Florida’s drug statute, section 893.13.  Although oral argument had originally been set for December 8, 2011, the docket shows that oral argument has been moved up to December 6, 2011.  The first briefs were due in the Court on November 2, 2011, but do not yet appear in the docket.