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: June, 2013

United States v. Davila: No. 12-167: Although Judge’s Statements Made During In Camera Plea Conference Violated Rule 11, Error Does Note Require Plea to Be Vacated

Things have been busy in these last couple of weeks leading up to the Fourth of July holiday, so I’ll keep this short.  Federal criminal defense and federal criminal appeals lawyers, especially those practicing in the Southern District of Florida or the Eleventh Circuit, will be interested to know that the US Supreme Court has reversed the Eleventh Circuit on an important issue: the consequences of a judge’s violation of Fed. R. Crim. P. 11 regarding guilty pleas.  In United States v. Davila, No. 12-167, the Court held that even though the Magistrate Judge who presided over an in camera plea conference made statements which violated Rule 11’s ban on judicial participation in plea discussions, Davila was not entitled to have his guilty plea vacated because he failed to show that he was prejudiced by the judge’s statements.

Is it just me, or does anyone else notice the irony of this decision?  This is a rare case where the Eleventh Circuit actually sided with the criminal  defendant, and afforded him relief.  Yet, on certiorari review, the US Supreme Court took the position most often taken by the Eleventh Circuit–and denied the criminal defendant relief.

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

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

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

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.


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