May 2011 Archives

May 31, 2011

Self-Defense Case Investigated by Local Authorities

Local law enforcement authorities continue to probe into the highly publicized case regarding a local juvenile who armed himself with a shotgun and shot an intruder committing a theft on his property. The unfortunate event has cost a life, and thrown a 14-year-old into the middle of a legal tussle. It began May 20, in the upscale Miami Shores community, and could prove a test of Florida's pioneering 2005 "Stand your Ground" and "Castle Doctine" statutes which allow for the justified use of lethal force in a self-defense situations, and extended civil protections to a person who used such force. Local Miami criminal defense attorneys from all over the county have been quick to throw their opinion into the mix.

According to press accounts, Reynaldo Muñoz, 20, and Carolina Lopez, 19, tried to steal a WaveRunner from the waterfront home of Jeffrey Davis, who was not home at the time of the incident. Muñoz and Lopez parked a truck at Pelican Harbor Marina, and rode a jetski to the Davis home. Muñoz entered the Davis property, and began lowering the WaveRunner into the water. Lopez headed back to the marina where she would help load the stolen craft into the truck and take it a buyer for $2,000. Muñoz, however, was confronted by Davis' 14-year-old son who had a shotgun. According to the boy and his mother, Muñoz threatened them. The teenager responded by fatally shooting Muñoz. According to Muñoz family members, Reynaldo was deaf mute and could not have threatened the teenager, at least not verbally. The only criminal charges filed so far have been against Lopez for second degree murder.

This case could become a test with national implications for the no-nonsense approach many states have taken regarding home intrusions, and self-defense. Florida 776.013 protects persons who come under attack, providing them strong criminal and civil protections. It states that, "...A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself...A person who unlawfully and by force enters or attempts to enter a person's dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence..."
The question most are pining over is whether a seawall is to be considered part of a dwelling or the "Stand Your Ground" law applies. Florida case law has long held that a defendant can commit a burglary without entering the residence. A dwelling burglary will be charged even if a person merely enters the yard if the home is surrounded by a hedge or a fence. A seawall is not a hedge or a fence. It may be considered a barrier, but is more likely to be construed a property line. If it is considered a property line and the state attorney's office holds the same opinion, the "Castle Doctine" will not apply.

The state attorney's office will then have to consider if the "Stand Your Ground" law is applicable in the this case. The vaildity of this defense will depend on the actions of both Munoz and the 14 year-old. The applicabilty of the relatively new law will turn on the actions of the deceased prior to the shooting and any wintess accounts of the same. Florida has particularly strong protections for a homeowner's use of self-defense which amounts to deadly force. In most instances homeowners have no duty to retreat in the face of an intruder and, should they invoke a valid castle law defense, are immune from civil suits. The case will raise difficult questions regarding Muñoz' capacity to articulate a viable threat, and whether or not the jet ski was within the curtilage of Davis' home.

Police Probe: Teen Shot Intruder in the Head, Miami, May 23, 2011.

May 26, 2011

Jury Selection: A Critical Stage During a Criminal Trial

The outcomes of most jury trials are in large part determined before any evidence is ever presented in open court. Jury selection is considered by most Miami criminal defense attorneys to be the most important part of any jury trial. All defendants charged with felonies and misdemeanors have the right to a trial by jury. The majority of cases are heard by six individuals, except in capital cases where the number of jurors is comprised of twelve people. In addition to the regular jurors, every jury has alternates. Alternate jurors are selected along with the regular panel, but in the event a regular juror has become unable or disqualified to perform his or her duties, the alternate will step in to assist in rendering the verdict. Jurors, whether they number six or twelve are selected from a venire or larger panel. Jurors are examined by the court, the prosecution and the defense lawyer in an effort to select an impartial jury. However, in reality a jury favorable to the defense is what is needed to secure an acquittal.

The 2008 murder of three-year old toddler, Caylee Anthony, in Orlando has garnered considerable media attention, particularly because the prosecution's cross hairs have come to rest on her young mother, Casey Anthony. Casey claimed she left her daughter in the care of a babysitter before she went missing. She, however, aroused suspicion when, among other things, she failed to file a missing person's report with police for weeks, and posted pictures of herself partying and drinking with friends while her daughter was presumed either missing or dead. The circuit court judge presiding over the case has had difficulty finding jurors that can be fair an impartial. Murder cases generally have a lot of publicity. This murder case has garnered so much publicity that the judge had deemed it impossible to find a jury suited to hear the case. As a result the judge had decided to select jurors from Clearwater, Florida in an effort to give the defendant a fair trial.

In most instances, jurors preside over cases involving DUIs, aggravated assault, drug trafficking or other offenses that do not involve the emotions surrounding this murder case. The heightened media attention and severity of the crime has caused difficulty in finding fair and impartial jurors to sit in judgement. The judge has decided to find jurors from a different locale and has determined that they will be locked away in a hotel for two months and barred access to any outside information. A little over two weeks ago, Judge Belvin Perry Jr. was given the daunting task of putting together a group of jurors without strong preconceived notions of Casey Anthony or the facts of the case. The relentless news coverage and Casey Anthony's stoic, seemingly "annoyed" demeanor towards the horrific charges levied against her has forced Judge Perry, who has a solid reputation in Florida to search for potential jurors in the city of Clearwater, almost 100 miles away from Orlando. The hope is that this strategy will produce jurors unfamiliar with the details of the investigation, and without preconceived notions of guilt or innocence.

After dismissing an entire pool of 49 potential jurors for having discussed the case among themselves, and after a grueling 11-day selection process, the judge finally swore in a 12-member jury with five alternates last Friday, May 20. As noted, outgoing calls of the jurors will be relegated to a few, supervised land lines, cell phone use is prohibited, and any TV news channels will be blocked. The decision made by the judge is unusual in that most high publicity cases where impartial jurors cannot be found are transferred to another jurisdiction for trial. It is highly unusual that a high-profile case will kept in the same jurisdiction with jurors from an outside county brought in the decide the defendants fate. One can only hope that the decision made by the judge will allow the defendant a fair trial. The actions of the court will certainly allow for an appeal in the event of a conviction.

Judge Moves Jurors, Not Trial, in Murder Case, New York, May 9, 2011.

May 16, 2011

Drastic Changes for DUI Cases

The state attorney's office has finally come to its senses and realized that first-time DUI offenders should not be scarred with a permanent criminal record. For as long as any Miami criminal lawyer can remember, first-time DUI offenders faced the real possibility of a permanent criminal record in the event of a plea to first minimums for driving under the influence. Although the punishments for a first DUI were never onerous; generally sixth months of probation, DUI school, victim impact panel, driver's license suspension, community service hours, fines and court costs, the stigma of a permanent criminal conviction has always loomed. A plea or finding of guilt after a jury trial always resulted in an adjudication of guilt or conviction. An adjudication of guilt will prevent an individual from ever taking advantage of the sealing or expungement laws made available in the State of Florida.

In prior years, the only way to clear a criminal record after a DUI arrest was to receive a "nolle pros" or dismissal from the state attorney's office or if a case was weak enough, the state may have offered a "breakdown" to a reckless driving along with a withhold of adjudication. These results only occurred if witnesses failed to appear in court on the day of trial or the evidence was so woefully insufficient that the state had to dismiss the charge or offer a breakdown. This situation was stressful to clients and criminal attorneys alike. While there are many defenses to DUI cases, a jury trial always held the potential risk of incarceration in the event of a guilty verdict. History shows that strong cases were dismissed while weak cases were prosecuted based on who showed up to court on time.

Miami-Dade County has recently announced that there is relief for first-time DUI offenders. New guidelines have been provided by the state attorney's office setting forth which offenders will not face a conviction for a first DUI. Critics argue that the new policy gives the impression that DUIs are no longer a serious offense. Proponents claim that too many defendants are walking out of the courthouse with no punishment because witnesses, both civilians and officers, fail to appear for trial. Under the new "Back on Track" program, defendants accused of DUI will have to enter a plea to the charge. In exchange for the plea, defendants will have to enter and successfully complete an outpatient drug and alcohol program, an interlock ignition device will placed on their vehicle, a DUI school and community service hours will have to be completed. If a defendant successfully completes the program, the DUI conviction will be converted to a reckless driving with a withhold of adjudication. This result will allow an individual to participate in the sealing and expunging process.

Not all first-time DUI offenders will be eligible for the program. Defendants charged with a DUI that were involved in accidents, have a previous DUI conviction(s) or reckless driving conviction(s), or had children in the car at the time of the offense will not be eligible for the program. The Miami-Dade State Attorney's Office has only released preliminary information on the program and has stated that more information will be forthcoming. Bear in mind that the new policy does not mean that all individuals arrested for DUI should enter into the program. The best bet is to seek the advice of an experienced Miami DUI lawyer and see if there are any defenses to the case. Why enter the program if you can beat the charge in court? The new program provides a safety net for defendants who determine with the assistance of his or her lawyer after thoroughly reviewing and preparing the case for trial, that there is a better chance of a conviction than an acquittal. In any event, the new policy will help people get on with their lives after making one minor mistake.

State Attorney Offers DUI Mulligan Program, NBC, May 10, 2011.

May 9, 2011

Video Surveillance: A Useful Tool

Video surveillance tapes have been used to both convict and absolve defendants charged with crimes. Video has been used to convict defendants charged with crimes such as armed robbery and home invasion type of offenses. In other cases, video recordings have been used to exonerate defendants charged similar serious offenses. In cases where surveillance exists, it is imperative that Miami criminal attorneys representing clients file motions to preserve the evidence immediately. Surveillance video is usually deleted or copied over fairly quickly. Once the video has been erased it is useless and cannot be used to exonerate a client. A recent case demonstrating the importance of video surveillance is the sexual battery case that arose in the Atlantis resort involving college students. According to sources, the video depicts the women victims as willing participants to the events leading up to the alleged rape.

While the video does not depict what occurred in the hotel room, the video does depict the alleged victims having drinks with and gambling with the defendants. The video also depicts a series of flirtations and caresses coupled with physical activity as the women kissed the men while gambling in the casino. While not dispositive of what occurred in the hotel room, it certainly raises significant issues as to whether the crime of sexual battery was committed. Video footage is a powerful resource when properly used by a skilled criminal defense attorney. It can be used to convince a prosecutor to drop the charges. If that does not work, the footage itself will be a powerful tool in convincing a jury to return a not guilty verdict at trial.

While the video is important evidence, other physical evidence must be evaluated to defend a client charged with sexual battery. Rape treatment kits are often used is rape investigations. The sexual organs of victims are examined and evaluated to determine if force was used during sexual intercourse. Nurses attempt to collect semen samples and check the fingernails of victims for skin samples belonging to the defendant. A victim's arms, wrists and neck are checked for bruising to determine if force was used during the alleged offense. Blood samples are also taken of the victim to determine blood alcohol content, the presence of drugs in the system, such as marijuana and cocaine, and or course date rape drugs. All of these pieces of evidence or lack of evidence are used by the prosecution and the defense to build their respective cases.

Sometimes, the most important item of evidence in a sexual battery cases, is the initial statement provided by the victim. The initial statement locks a victim into her version of events. With that version of the events in hand, a qualified criminal lawyer can punch holes in the prosecutions's case. For example, in the case out of the Bahamas, both victims claimed that they were feeling dizzy and losing control over their bodies. These statements would infer that the victims were slipped date rape drugs, like Rohypnols or Roofies. The blood tests revealed no evidence of date rape drugs which refutes the stories of the purported victims. In many cases, the versions of stories provided by victims in date rape cases can be refuted by physical evidence, such a video surveillance, rape kits and blood tests. As charges stemming from sexual offenses have life altering affects, no stone can go unturned in defending these types of cases.

Surveillance Video Could be Key in Garrett Wittels Rape Case, Miami, May 8, 2011.

May 3, 2011

Drug Court for Veterans Open for Business

A new program designed to assist military veterans with drug addictions has officially opened its doors. The new venue is referred to as Veteran's Court and is brand new to Miami-Dade County. Miami criminal attorneys have used the drug court as a way to get help for their clients and to ensure that after successfully completing the program getting their clients charges dismissed. The standard drug court program allows defendants with simple drug possession charges to enroll in the court and receive drug treatment from local drug addiction facilities. Bear in mind that all defendants charged with simple drug offenses are not always eligible to enroll. Defendants with certain priors, such as burglary and robbery will not be allowed into the program.

The new Veteran's Court will get services from count rehabilitation facilities, but also from the Department of Veteran Affairs. The use of Veteran's Court has gained traction around the country. It allows for defendants that are veterans to avoid jail or criminal records by undergoing intensive court monitored drug rehabilitation programs. The program also assists veteran in obtaining financials grants allowing them to continue and complete their education. Military lawyers are happy that veterans are getting additional benefits for their time in service. The Veteran's Court is presided over by the same judge who presides over drug court. Currently, there are ten veterans enrolled in Miami-Dade County. The justice system is looking to have at least 100 enrolled in he program at any given time.

The Veteran's Court in Miami is the 69th such court created in 24 states around the country. The first of its type opened its doors in Buffalo, New York. The court was created because of the increasing number of veterans returning from the Middle East with drug addiction problems. The number of veterans being charged with cocaine possession, marijuana possession and heroine possession was increasing at an alarming rate. These statistics led to the creation of the program. Like drug court, veterans charged with minor possession or purchase drug offenses are eligible, as long as hey do not have extensive prior criminal histories or have been previously convicted of violent crimes.

Anyone enrolled in the drug court program, or the newly created off-shoot should be aware that completing the program is no easy task. Outpatient rehabilitation and multi-weekly narcotics anonymous classes are required. Defendants who render positive urine tests may find themselves behind bars for at least a couple of days. This makes drug court much more intensive than any form of probation that results from accepting a plea. In Miami, first-time offenders charged with a simple drug offense will usually be offered "credit time served". Bear in mind, the extra effort of the drug court program will allow a defendant's charges to be dismissed, which will further allow him or her to expunge the criminal record. An additional plus is that a defendant can kick his or her drug addiction, thus preventing a return to criminal court.

Miami-Dade Starts Specialized Drug Court for Military Veterans, Miami, May 2, 2011.