Tag Archives: Florida

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.

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!

Who Knew that Miami Dade County and Orange County Have Drones??

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Ok, I admit that this post is NOT about criminal appeals or criminal defense, but I could not resist passing this along.  When I saw this article on the CNN website, I thought “Great.  Another article about Florida Governor Scott making Florida look bad again.”  Well, after reading the article, it’s not just the Governor making Florida look bad.  Can you believe that some law enforcement agencies actually have drones?  If you live in Orange County or Miami Dade County, look out!

BOLO for Sentencing Issue: Court Must Consider Correct Sentencing Scoresheet Before Imposing Sentence on YO Recipient After Being Found Guilty of VOP

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I may have used a lot of acronyms in the title, but I bet I’ve got your attention, right?  It’s Wednesday, which is opinion day in Florida’s 4th DCA.  Although most of the opinions in the criminal appeals were in favor of the State, I came across one that’s worth a quick note.

In Cosme v. State, 4D09-1650 and 4D09-1652, the Court reversed a sentence imposed after the defendant was found guilty of violating his probation.  Although Cosme had been given the benefit of a YO sentence when he was originally sentenced, after finding him guilty of the VOP, the trial judge revoked his probation and sentenced him to concurrent life sentences on all 3 counts.  In so doing, the trial judge apparently listened to the statement of the ASA, who informed the judge that she could sentence Cosme to the maximum sentence of life, “without the constraints of the criminal punishment code.”  Slip op., pg. 1.

After Cosme was sentenced, the ASA prepared a scoresheet, showing that Cosme’s lowest permissible sentence was 12.25 years, and handed it to the trial judge.  The judge then told the ASA to note on the scoresheet that the Guidelines weren’t applicable because Cosme was originally sentenced as a YO.  The trial judge signed the scoresheet, and the case eventually came up on appeal to the 4th DCA.

Notwithstanding the fact that Cosme and his counsel failed to object, the 4th DCA nevertheless reversed because the trial judge pronounced the sentence before being provided a scoresheet, and because both the ASA and the judge stated that the guidelines were not applicable when in fact they were.  Slip op., pg. 2.  Although the 4th DCA acknowledged that the 6- year cap doesn’t apply to a YO sentence imposed following a substantive VOP, the Court emphasized that reversal was required in Cosme’s case because the record did not conclusively show that the same sentences would have been imposed had the trial judge considered a correct scoresheet before imposing sentence.

Of note, Cosme’s case originates in Broward County.  For those of you who practice in Broward, you may want to be on the lookout for this type of sentencing issue the next time you’re representing someone who had been given a YO sentence and then gets charged with violating his or her probation.  If the judge fails to consider a properly completed scoresheet before imposing sentence, you may have a good basis for appeal pursuant to Cosme.