Tag Archives: trial

Florida Supreme Court Finds Noise Control Statute, Section 316.3045, Is Unconstitutional, and Low Pay for Florida’s Criminal Conflict Attorneys Getting Statewide Attention

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Criminal defense attorneys who handle cases involving traffic stops may want to take a few minutes to read an opinion released by the Florida Supreme Court today.  In State v. Catalano, No. SC11-1166, the Florida Supreme Court found that the noise control statute, section 316.3045, Fla. Stat., is unconstitutional.  After engaging in a classic constitutional law/First Amendment analysis, the Court concluded that the statute is unconstitutionally overbroad and an impermissible content-based restriction, and that severance of section 316.3045(3) is not an appropriate remedy to preserve the constitutionality of the statute.

Obviously, if you’ve got a client who’s been charged with a violation of this statute, you should consider filing a motion to dismiss based on Catalano.  However, even if you’ve got  a client who’s charged with only a violation of a similar local ordinance, you might want study the Catalano opinion to determine whether you can move to dismiss the charge, based on an analogy to Catalano.  Before you do so, be sure to determine whether the local ordinance in your case is structured similarly to section 316.3045.

On another note, for those of you who handle appointments in criminal cases, you’re no doubt aware of the State’s changes to the payment structure which went into effect in July of 2012 when the Florida Legislature passed SB 1960.  (If not, you can read my previous post summarizing the changes here).  Well, if you do handle criminal appointments for either trials or appeals, I came across a thorough and well written article in the December 15, 2012, edition of Florida Bar News today that you may want to read.  Hopefully, the publication of the article means that the issue is gaining statewide attention.   Greater attention can only help the plight of Florida’s criminal conflict counsel.

Florida Supreme Court Justices and Fourth DCA Judges Facing Merit Retention Vote In November 2012

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All of Florida’s attorneys–not just criminal trial and appellate attorneys–have been hearing for a while now that several of the Justices on the Florida Supreme Court are under attack.  Supreme Court Justices Pariente, Quince, and Lewis are all up for merit retention votes in November 2012.  Judges Carole Taylor and Burton Conner from the Fourth District Court of Appeal in West Palm Beach are also up for merit retention votes in November.  According to the reports being circulated among the members of the Florida and Palm Beach County Bars, political groups, PACs, have been formed to raise massive amounts of money in anticipation of the November elections.  According to the reports, the organizers of the PACs are not based in Florida.

Why all the fuss, you ask?  Several years ago, something similar happened in another State (a mid-western State, I believe).  A large PAC was formed, and the PAC raised massive amounts of money to run political attack ads against several of the State Supreme Court justices.  The justices who were attacked all lost re-election.

Florida’s Supreme Court Justices are in a tough spot.  Although they are elected officials, they are precluded from actually going out and running a formal campaign.  They are also precluded from saying many things that a traditional candidate would say.  In other words, they can be attacked, but cannot fight back.  That’s where we come in.   If you are Florida lawyer, you know that the merit retention vote is about one question: whether the Justice or Judge should retain his or her judicial position based on his or her ability to render decisions on a fair and impartial basis, not whether you as a lawyer agree with those decisions.  As a citizen of the State of Florida, everyone has the responsibility to make an informed choice at the election booths in November.  In addition to reading about your local candidates, you should take a few minutes to read about Florida’s merit retention system here.

Florida Bar News Features Article on Low Pay For Court Appointed Attorneys in Criminal Trials and Appeals

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Criminal defense lawyers who accept court appointments to represent the indigent for trial and appeal have long been underpaid.  In a recent post, I discussed Florida’s latest legislative maneuver to decrease the amount of pay for court-appointed attorneys yet again.  Well, now, the Florida Bar News has published an article discussing how low the pay rates really are, and how it affects the criminal justice system overall.  To read the article, click here.   Although the article is very informative, it’s too bad it couldn’t have been published while the issue was pending in the Florida legislature.

Florida’s Battle of the Branches of Government Continues, and E-Discovery Violation in Federal Criminal Case Results in New Trial

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It’s no secret that Florida Governor Rick Scott and Florida’s Supreme Court haven’t been able to get along.  Since he’s taken office, the two branches of Florida’s government have squared off, indirectly, on more than one occasion.  Well, it looks like things are heating up now.  The latest shot came from the office of the Governor, with Scott basically calling for FDLE to begin an investigation of Justices Pariente, Lewis, and Quince, all of whom are up for merit retention votes this November.  You can read more about it here.  The story is even making national headlines on the ABC website.

Now, for South Florida’s  Federal criminal defense lawyers, trial and appellate alike, I came across an interesting post today that I wanted to share.  Apparently, District Judge Altonaga of the Southern District recently granted a new trial in a criminal case after the defense attorney argued that the Government committed a discovery violation by failing to produce e-discovery in a reasonably usable form.  According to the post, even though the Federal criminal rules do not have the same requirements as the Federal civil rules with regard to production of e-discovery, there may be a growing trend by the courts to adopt the Federal Civil rule’s standards in criminal cases.

Advising People of the Immigration or Deportation Consequences of Their Guilty Pleas: Will the Florida Supreme Court Accept Jurisdiction to Decide if Padilla v. Kentucky, 130 S.Ct. 1473 (2010), Applies Retroactively?

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In 2010, the United States Supreme Court decided Padilla v. Kentucky, 130 S.Ct. 1473 (2010), wherein the Court held that Padilla’s criminal defense lawyer provided ineffective assistance of counsel by failing to advise Padilla that his plea to charges of drug distribution would subject him to automatic deportation under 8 U.S.C. section 1227(a)(2)(B)(i).  The Court further held that in order to render effective assistance of counsel, a criminal defense attorney must advise his or her client whether a plea carries a risk of deportation.  See Padilla, 130 S.Ct. at 1486.

The issues surrounding pleas and immigration consequences are not new to Florida’s trial or appellate courts.  In 2006, four years prior to Padilla, the Florida Supreme Court held that claims of ineffective assistance of counsel based on counsel’s failure to warn of the immigration consequences of a plea must be filed within 2 years of the date that the judgment and sentence (or order withholding adjudication of guilt) become final.  See State v. Green, 944 So. 2d 208, 217-218 (Fla. 2006).  Since Padilla, the issues surrounding immigration or deportation consequences of pleas have remained on the forefront, and one of the latest issues is the retroactivity of Padilla.   In April of 2011, the Third District Court of Appeal issued a decision in Hernandez v. State, 61 So. 3d 1144 (2011), wherein the Court certified the question of the retroactivity of Padilla to be of great public importance.  Although the State of Florida and Hernandez filed their jurisdictional briefs with the Florida Supreme Court in September of 2011, the Court has yet to issue an opinion.  At the end of 2011, the Fourth District Court of Appeal held that Padilla does not apply retroactively.  See Rodriguez v. State, No. 4D10-2016, 2011 WL 5964343 (Fla. 4th DCA Nov. 30, 2011).  Since the issue of retroactivity has yet to be decided, I suppose that Florida’s criminal defense bar, and criminal defendants alike, will have to continue to wait to see what path the Court will choose.  The docket in Hernandez v. State, No. SC11-1357, can be viewed here.

I Just Got Arrested for DUI! Should I Plea it Out or Take it to Trial?

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While I was a prosecutor in Broward County, Florida, I  tried misdemeanor DUI cases for 1.5 years.  In my opinion, many of the top DUI defense attorneys are in Broward, and since there are a lot of DUI arrests there, the trial schedule is crazy.  I was in trial at least once a week, and oftentimes back-to-back.  I probably tried about 65 or 70 DUI cases in that 1.5 years.  The purpose of my post today is to pass along some important insider information that seasoned DUI defense attorneys may know, but others may not.  Some things to consider when deciding to plea out your DUI or take it to trial include:

1.)  In which county were you arrested?  Typically, the more north the county, the more conservative the Judges and juries.  That means that people in counties north of Palm Beach may be more likely to be found guilty by a jury than people who are in Miami Dade or Broward.  Also, people in counties north of Palm Beach may receive stiffer sentences than people in Miami Dade or Broward.  This is so because Judges and juries north of Palm Beach may  be less tolerant of even minor crimes than people in Miami Dade or Broward.

2.)  Who arrested you?  Some officers are highly trained for DUI cases.  They often make good witnesses because they are knowledgeable and can explain in specific details why they thought you should have been arrested for DUI.  If you have been arrested by one of these specially trained officers, it might be smart to take a plea.  But, if the officer who arrested you is not specially trained, you might want to take it to trial.  Some officers who don’t arrest for DUI very often have a hard time explaining to the jury exactly why they thought you should have been arrested, and that can make a jury feel uncomfortable.  It’s one thing to get arrested, but it’s another thing to actually convict someone, especially where the evidence is not so clear.

3.)  Was your arrest recorded on video?  Some (not all) officers who are assigned to DUI cases have video cameras mounted on the dashboard.  As soon as they think they need to investigate a possible DUI, they turn on the camera.  That means they may have recorded your driving pattern and all of the time you spent at the side of the road when you got pulled over.  If your video is “good” (meaning that there is no damaging information there, or very little), then you may want to take your case to trial.  If the jury doesn’t think you look drunk, you may not get convicted.

4.)  Did you take a breath test, urine test, or blood test?  Most DUI’s involve breath tests.  If yours did, and you blew very near the .08 limit, you may want to take your case to trial.  Juries may tend to sympathize with someone who was only a “little” over the limit.  Also, if you had a blood test or urine test, and your test results came back positive only for alcohol and no other drugs, then the jury might sympathize with you (especially if your level was near the .08 limit).  However, blood or urine test results which come back positive for other drugs may make the jury feel less sympathetic toward you.

5.)  Did your arrest involve alcohol, drugs, or prescription medication?  Juries can be very sympathetic to people who drank “just a little” over the limit, or who took prescription medication, or who smoked a little marijuana.  Juries tend to be less sympathetic to people who take harder drugs, like cocaine.

6.)  Did you perform roadside exercises?  If you did, and you did really well, a jury may have a hard time convicting you.  If you have a video showing how terrible you were, you might want to plea your case out.

7.)  Did you refuse to take a breath test and perform roadside exercises?  If you refused, and you did so politely, the jury might have a hard time convicting you.  But if you were nasty to the officer, and the officer was being polite, the jury might think that you were an angry drunk.

8.) How sympathetic is your case?  Lots of factors come to play when deciding how sympathetic your case can be.  Were you arrested after drinking at a bar all night?  Or were you arrested after taking prescription medication?  Are you an older person or younger person?  Were you nice to the police officer?  Was the officer a jerk?  The most important thing to remember for DUI cases is that juries have a hard time convicting someone they identify with.  Almost everyone, at one time or another, has gotten behind the wheel after drinking too much.  Most people don’t get caught.  When the people who were lucky enough not to get arrested get picked for jury service, they may remember their luck, and pass some on to you.

High Profile Cases-Some Tips for Trial and Appeal

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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.

State v. Casey Anthony: the Important Role of the Jury and Criminal Defense Attorney

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The media is swirling with reports about the verdict in the Casey Anthony case.  Reporters and courthouse watchers are all talking about how shocked they are.  Others speculate about what will happen to Anthony and her family now that she has been acquitted.  It is easy to get dragged in to the media hype surrounding this case.  After all, a little girl’s dead body was found in the woods, and her mother acted despicably in the days following her disappearance.  But before you join that angry mob out there, take a minute to think about something else.

We all know that in a trial, the prosecution’s job is to prove its case beyond a reasonable doubt, and that the defense attorney’s job is to convince the jury that there is reasonable doubt.  The role of defense attorney seems easy enough in cases where the criminal defendant might be a likeable person, or where the Government made some clear mistakes either in the investigation or in the prosecution of the case.  But in cases like Anthony’s, where the defendant shows no remorse for what happened, or acts despicably in the days following the perpetration of the crime, the role of the defense attorney becomes all the more difficult and important.  In cases where the defense attorney has to defend someone that is despised by the public, the defense attorney truly assumes the role of defender.  The jury trial system given to us by the Founders of this great Nation knew the importance of the jury trial as a check against mob justice.  And the Justices of the United States Supreme Court, in Gideon v. Wainwright, 372 U.S. 335 (1963), recognized that all defendants, regardless of income, have the right to be defended against criminal charges.  The right to due process of law, which we all enjoy under the Constitution, requires nothing less.

It is somewhat ironic that the verdict in the Anthony case was reached one day after Independence Day.  While we may feel angered and frustrated by the senseless death of little Caylee, and while we may disagree as to the appropriateness of the verdict, there are two things we should all take a moment to remember in these days surrounding the Fourth of July: the right to trial by jury, and the important role of the criminal defense attorney.  An oath contained on the website of the Office of the Public Defender for the Fifteenth Judicial Circuit is worth quoting:

I am a Public Defender.

I am the guardian of the presumption of innocence.

My clients are the indigent accused.

They are the lonely, the friendless.

There is no one to speak for them but me.

My voice will be raised in their defense.

I will protect and defend my clients and the Constitutions of the United States and the State of Florida.

So help me God.

Casey Anthony Trial Spectator Jailed for Contempt After Giving Middle Finger to Prosecutor-Can the Judge Really do That?

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A report on CNN today states that during trial proceedings on Thursday, June 30, 2011, a Casey Anthony trial spectator decided to give the middle finger to a prosecutor while the prosecutor was at the podium, in open court.  Although the prosecutor did not see the middle finger being given because he was at the podium and had his back to the gallery, the spectator’s actions were caught on tape and played on national television for all to see.  After Judge Perry was notified of the spectator’s actions, Chief Judge Perry, outside the presence of the jury, called the spectator, Matthew Bartlett, up to the court to address his actions.  The Chief Judge questioned Bartlett as to what the middle finger gesture meant, and particularly, what the gesture meant to him.  After Bartlett said he did not even know why he made the gesture, he apologized.  Apparently not happy with the apology, Chief Judge Perry sentenced Bartlett to 6 days in the Orange County jail, a fine of $400.00, and $223.00 in court costs.  Bartlett was handcuffed and escorted to jail by Orange County deputies.

Can the Judge really do that?  In a word: YES.  Attorneys are well aware that the courtroom is a place that demands the highest levels of respect and decorum.   A court’s contempt powers are the means to enforcing the rules of the court, and maintaining proper behavior in a courtroom.  While it may be that people who are not attorneys may not be aware of the court’s contempt powers, ignorance of the law is never a defense.  And, in this case, ignorance of the law could not possibly be a defense because as noted in the CNN report, there is a sign posted indicating that gestures would not be tolerated.  In addition to the sign, on May 4, 2011, Chief Judge Perry signed an Order Establishing Rules Governing Members of the Public, which clearly states that proper decorum was to be expected at all times, and that “[t]here shall be no gestures, facial expressions or the like, suggesting approval or disapproval during the proceedings.”

While a jail sentence may seem harsh at first, closer examination shows that perhaps that’s not the case.  True, going to jail for giving the middle finger could be characterized as extreme.  However, one cannot simply look at the action and the consequence in a vacuum.   The larger picture needs to be taken into account.  What we have here is a woman who is on trial, possibly facing the death penalty, for the murder of a little girl.  These court proceedings, as do all court proceedings, require respect and solemnity.  We also have a Judge who is responsible for balancing the rights of the media and the public to observe the proceedings, against the rights of the accused to a fair trial.  Why should the Judge allow the irresponsible actions of one mere spectator inject a possible taint into the entire proceeding?  After proceeding for more than 6 weeks, why run the risk of a mistrial because one immature person could not respect the rules of the Court?  If the case is mistried, the entire process would have to start all over again, and the work of everyone–jurors, witnesses, attorneys and the Judge– will have been for nothing.  In the end, I regret that the sentence had to be imposed, but I believe that to protect the dignity of the proceedings, the authority of the Court, and the efforts of all the players involved, the sentence is appropriate.

Federal Courts in Florida

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Just like individuals in any other State, Floridians have two court systems within their State: the State courts and the Federal courts. While there are occasions where the State and Federal court systems operate in a somewhat related fashion, for the most part, each system enforces its own laws independent of the other.

Similar to the Florida courts, the Federal courts are organized into areas of territorial jurisdiction. The Northern District of Florida encompasses Pensacola, Panama City, Tallahassee, and Gainesville. The website for the Northern District can be found here. The Middle District of Florida encompasses most of the middle portion of the State, including Jacksonville, Ocala, Orlando, Tampa, and Fort Myers.  The website for the Middle District can be found here.  The Southern District encompasses the eastern portion of the State, including Fort Pierce, West Palm Beach, Fort Lauderdale, and Miami.  The website for the Southern District can be found here.

Also similar to the State courts of Florida, the Federal courts have a distinct trial and appellate system.  The United States District Court operates as the trial court, and is presided over by United States Magistrate Judges, United States District Court Judges, and Senior United States District Court Judges.  The United States Court of Appeals for the Eleventh Circuit, which is based in Atlanta, Georgia, is the Federal appellate court for the States of Florida, Georgia, and Alabama.  The website for the Eleventh Circuit can be found here.  Any appeals taken from the Eleventh Circuit would be filed in the Supreme Court of the United States, in Washington, D.C.  The website for the Supreme Court of the United States can be found here.