October 6, 2010

Tainted Confessions End Up in Long Prison Sentences

Many defendants that have been sentenced to long prison sentences on sexual battery and rape charges based on alleged confessions made to law enforcement officers. The advent of DNA evidence in recent years has revealed that defendants have been sentenced to lengthy prison sentences based on the strength of tainted confessions in many cases. While any Miami criminal attorney will tell you never to make nay statements to law enforcement, some individuals either do not follow the simple instruction of do not have the mental capacity to withstand questioning by the police.

A recent study out of the University of Virginia revealed that in 250 rape and murder cases where the defendants were eventually exonerated as a result of DNA testing, 40 individuals had confessed to a crime or crimes they did not commit. Three examples of recently exonerated, wrongfully accused defendants convicted of violent crimes come out of Broward County. Don't kid yourself, defendants charged in Miami-Dade County and across the State of Florida are doing hard time for crimes they did not commit. The lucky defendants are the ones that are released because DNA existed to prove their innocence. Crime scene technicians try to collect DNA from crimes scenes that involve homicides and sexually motivated offenses. However, crime scene technicians are rarely called out to burglary of auto theft scenes. While these crimes are not a serious per se as murder and rape charges, convictions for these types of charges can land certain types of offenders in prison for up to forty years.

Many career criminal statutes have been passed over the last couple of decades to put away defendants with extensive criminal records. Enhanced sentences can and will be handed down by state criminal judges for defendants that are classified as habitual offenders, violent habitual offenders, violent career criminals and prisoner releasee re-offenders. These enhancement are used to double prison sentences and even carry minimum mandatory sentences. For example a defendant convicted of a dwelling burglary that is classified as a violent career criminal can be sentenced to 40 years in prison with a 30 year minimum mandatory. A first time offender is likely to receive probation for the same type of offense. The problem is that defendants sentenced to lengthy sentences for lesser felonies do not have DNA to exonerate them.

Many burglary cases are made on the strength of a confession provided by defendant. No DNA evidence, eyewitnesses, or physical evidence of any kind are required to prove the case. The prosecution can prove a burglary case with an admission and the fact that a burglary was committed. That is certainly not much evidence to put a person behind bars for forty years. A skilled Miami criminal lawyer must be able to convince a jury that many confessions and admissions are obtained through coercion, threats or force. Cases with oral confessions are certainly easier to defend that cases where taped confession have been taken by the police. Again, the best advice to any arrested for any crimes is to invoke one's right to remain silent and the right to have any attorney present for questioning. Take advantage of your rights and do not make the case against you any stronger than it already is.

Report: Broward County Not Alone in Coaxing Confessions, The Miami Herald.com, Septepber 19, 2010.

October 4, 2010

Local Police Officer Arrested for Violating Domestic Violence Injunction

With the rash of domestic violence cases hitting the news wires, especially recent cases involving numerous homicides, a case involving a police officer would make for interesting reading. A Miami-Dade police officer was arrested last week for violating a domestic violence injunction. The officer has been relieved of duty and is facing a misdemeanor in domestic violence court. The officer can either choose to represent himself at his arraignment of he can hire a Miami criminal attorney to represent him, at which point he will not have to appear in court for his initial appearance.

In all cases, as long as a victim appears in the domestic violence courthouse and fills out an affidavit in support of an injunction against domestic violence, a judge will sign a temporary injunction and the set the case for hearing at a future date. The temporary injunction will remain in place until the hearing is held. At the end of the hearing a judge will determine whether an injunction will be extended, put in place permanently or dismissed. Anyone served with notice to be at a hearing on an injunction has the right to retain criminal defense lawyer to represent his or her interests at the hearing. A petitioner, as well as a respondent has the right to present witnesses to testify at the hearing can also testify on his or her behalf.

A judge will extend or grant a permanent injunction if the petitioner can demonstrate that he or she has been the victim of two incidents of violence or stalking, one of the incidents having occurred within the last six months. Crimes of violence include assault, aggravated assault, battery, aggravated battery, stalking, aggravated stalking, kidnapping or false imprisonment. Stalking is defined as anyone who engages engages in a course of conduct directed at a specific person that causes substantial emotional distress. Stalking also requires a course of conduct composed of series of acts over a period of time. Stalking is a first degree misdemeanor, unless the respondent intentionally places the petitioner in reasonable fear of death or bodily injury, then the offense can be charged as a third degree felony. A person who commits a stalking after an injunction is in place can also be charged with a third degree felony.

Violations of injunctions, whether charged as a misdemeanor or a felony, are taken seriously by judge and prosecutors alike. Because this is the case, anyone served with a petition for an injunction against domestic violence for repeat violence, should seek to hire a Miami criminal defense law firm in defending these types of cases. If a permanent injunction is entered by the court, it becomes the permanent part of a person's criminal record and can never be sealed or expunged. If an injunction is entered by the court, the respondent will also be required to enroll and successfully complete a domestic violence intervention program lasting approximately 26 weeks. Another reason to contest the injunction is because any future violation of the injunction can subject a person to criminal prosecution under the laws of the State of Florida.

Miami-Dade Cop in Love Triangle Arrested in Miami Beach, The Miami Herald.com, September 30, 2010.

October 1, 2010

Insurance Adjusters Arrested on Racketeering Charges

Five local auto insurance adjusters were arrested by the Hialeah Police Department for their involvement in a scheme to defraud the same insurance companies that employed them. The adjusters are accused of inflating estimates in exchange for monetary kickbacks. The adjusters will be arraigned in 21 days, unless prosecutors need more time to investigate the case before deciding which charges they will file. It is unknown whether the defendants will hire a privately retained Miami criminal defense lawyer or whether they will use counsel from the public defender's office.

The police were aided in their investigation by an auto shop owner that was arrested for billing false claims for deployed air bags. Rather than facing jail or prison time, the body shop owner agreed to cooperate with the authorities by setting up the adjusters. According to the police reports, the illegal dealings were captured on videotape. The accused adjusters worked for both Allstate and State Farm. In one of the cases, an adjuster inflated the estimate from $3,201 to $22,149 in exchange for a $2,000 payoff. According to the Miami-Dade County State Attorney, "These adjusters got the cold cash from this crime while everyone else paid he bill." The defendants were arrested on charges of racketeering, grand theft and petit theft.

The case will most likely be prosecuted by the insurance fraud unit at the state attorney's office. While this is not a typical insurance fraud case, e.g. staged accidents, the division appears to be suited to handle the matter. Until the charges are filed and the amount of loss tallied, it is difficult to determine what type of penalties the prosecutors will seek in these cases. It should be noted that racketeering a level 7 offense under the Florida Sentencing Guidelines which dictates a minimum of 21 months in prison. Because the adjusters have no prior record they may be offered pre-trial intervention for first time offenders or probation as long as they make restitution to the insurance companies they allegedly defrauded. On the other hand, the state attorney's office may seek to make an example of these defendants in order to send a message to community which is riddled with fraud.

Prior to plea negotiations, the defense counsel representing the defendants must first review the discovery to determine if a defense exists to the charges. The police reports indicate that some of the transactions were video and audio recorded. It is not clear if all of the defendants were caught on tape. The prosecution will have difficult burden in proving their cases if the sole evidence against a defendant is based on a cooperating defendant. Any competent prosecutor knows that a case can not be successfully prosecuted unless they have evidence corroborating the cooperating witness's testimony.

Five Auto Insurance Appraisers, Adjusters Charged,, The Miami Herald.com, October 1, 2010.

September 30, 2010

"Stand Your Ground Law" Helps Defendant, Hurts Prosecutors

The Florida legislature significantly changed the self-defense laws in the State of Florida approximately 5 years ago. State attorneys' offices and law enforcement officers throughout the state complained that the new self-defense rule would cause lawlessness in the streets. While that prediction has not come to fruition, prosecutors have had difficult time filing charges and successfully prosecuting violent crimes because the law that allows individuals to stand their ground. While the defense is not applicable in many cases, Miami criminal defense lawyers have used the defense to win cases or in the alternative, get significantly reduced plea offers for their clients.

Prior to enacting the new law, a person did not have a duty to retreat were in cases where the person using deadly force was in their home, residence or automobile. The jury instruction regarding this defense can be summarized as allowing a defendant to use deadly force when he or she is in his or her dwelling, residence or vehicle, the defendant was in fear of imminent peril of death or bodily injury and the alleged victim unlawfully and forcibly entered or attempted to forcibly remove another person from the defendant's dwelling residence or automobile. The law went further to presume that anyone another person's property was doing so with the intent to commit and act involving force or violence.

The old law required a person to retreat if the person was able to leave without facing imminent harm. The new legislation allows for a person to remain in any place where they are legally allowed to be and that person has no duty to retreat and can stand his or her ground and use force, even deadly force, if reasonable necessary to prevent death or great bodily harm. The law also allows for a person to defend another person with no duty to retreat under the same circumstances.

The revisions to the stand your ground law allow for an effective defense in manslaughter and aggravated battery charges. The defense has been successfully used to defend cases throughout the State of Florida, but in particular in Miami-Dade and Pinellas Counties. To make the stand your ground defense stronger it is always helpful to have defense witnesses that will corroborate the version events set forth by the defendant. If a person is charged with a violent crime, they should speak an criminal defense law firm that specializes in these types offenses to determine if there is viable self-defense claim exists. In any event, the new legislation causes major problems for law enforcement to deal mutual combatant type cases.

Stand Your Ground" Makes It Tougher to Prosecute Assailants, St. Petersburg Times, September 30, 2010.

September 27, 2010

Florida Law Does Not Permit Marijuana Possession for Medical Reasons

Unlike many states, Florida has yet to pass a law that allows for marijuana possession for medical use. Despite the fact that the courts and registered voters desire a change in the law, the legislation has not made the changes that would allow for a medical necessity defense in marijuana possession cases. In other states, individuals can possess marijuana for medical ailments if a license medical doctor authorizes its use. Any one charged with marijuana possession charges should retain a Miami criminal defense lawyer to defend the case as a conviction or a withhold of adjudication to a marijuana possession charges can have long lasting effects such as immigration or employment problems.

Marijuana possession is first degree misdemeanor punishable up to a year in jail. Individuals with no prior record will be offered the opportunity to enroll and successfully complete a pre-trial diversion program. In misdemeanor cases, the defendant will be required to complete a four to six hour drug class. Upon completion of the class, the state attorney's office will nolle pros or dismiss the charge. Before accepting the program, it is advisable to consult with a criminal attorney because the state may not have enough evidence to prove their case beyond a reasonable doubt. If that is the case, a defendant should not enroll in the program and seek a dismissal of the case. In either situation, a defendant will be able to expunge his or her record once the case has been dismissed.

Felony possession of marijuana (more than 20 grams) is little more problematic. In Miami-Dade County, the state attorney's office will not offer pre-trial intervention on drug cases. They offer a year long very intensive drug court program. The program requires monthly reporting to court where urine samples are often taken. Narcotics anonymous sessions along with outpatient drug programs are a requirement. Before enrolling in drug court, have lawyer evaluate your case because the case may have many defenses. Your lawyer can also seek out an alternative resolution to the case that does not require the drug court program.

The most difficult type of marijuana case to defend is marijuana trafficking. The majority of the cases arise from hydroponic labs built in the home. Possession of more than 25 pounds of marijuana constitutes marijuana trafficking with a three minimum mandatory prison sentence. The minimum mandatory was enacted a few years back when marijuana cultivation was becoming problematic in the legislation's eyes. Most arrests for operating a grow house results from anonymous tips provided by the police. The police in general do not get warrants and simply try to obtain consent to search the residence. The police have the authority to walk up to your front door and ask for consent to search. The best way to keep the police off the front porch is surround your house with a fence and locked gates. Florida law is well-settled that law enforcement can not gain egress into a person's property if that property is surrounded be fence with locked gates. Remember, you can refuse to give consent to your property. The police may threaten to arrest you spouse of take your children away. Police action of this type makes a consent to search involuntary which will allow the judge to suppress any evidence seized from your residence.

Florida Still has Harshest Penalties in the Country for Marijuana Use, Examiner.com, September 23, 2010.


September 22, 2010

Cocaine Trafficking Kingpin Appears in Federal Court

An alleged former Columbian cocaine trafficking kingpin made his initial appearance in the United States District Court for the Southern District of Florida with his Miami criminal defense lawyer. Jaimie Alberto Marin-Zamora will again appear later this week for a pre-trial detention hearing where federal prosecutors will attempt to convince a federal magistrate that he is danger to the community and a flight risk. The criminal attorney representing Marin-Zamora will have a difficult time securing bail and the government will most likely prevail at the pre-trial detention hearing as the defendant is alleged to have been one of the key leaders of the North Valley cartel and he has no ties to the United States.

The North Valley cartel took over as the main cocaine trafficking ring in Columbia after U.S. and Columbia forces shut down the Cali and Medellin cartel in the 1990s. Marin-Zamora is just one of a string of former individuals accused of drug trafficking into the United States from Columbia, South America. The indictment alleges that the defendant conspired to traffic thousand of pounds of cocaine into the United States. Marin-Zamora is facing life in prison, but will not receive that sentence if he decides to enter a guilty plea. Diego Montoya Sanchez, a rival of the defendant, was arrested in Columbia in 2007 and extradited to the United States. He entered a guilty plea in 2009 and was sentenced to 45 years in prison. His indictment alleged that he smuggled more than 500 million kilograms of cocaine into the United States with a street value in excess of $10 billion.

Marin-Zamora was apprehended in Venezuela on a resort island. Venezuela agreed to turn over the defendant to the Drug Enforcement Agency despite the strained political relations between Venezuela and the United States. Like other defendant's accused of drug trafficking who get caught in Venezuela, the extradition to the United States occurs as a result of an agreement between the Columbian and Venezuelan governments as Venezuela and the United States do not have an extradition treaty. As in all drug trafficking cases, it is difficult to fight extradition from South America to the United States to face criminal charges.

Once the pre-trial detention hearing occurs, the defendants case will be set for trial before a United States District Court judge. A standing discovery order will be entered which will require federal prosecutors to turn over the majority of the evidence to defense counsel. Once the defense attorney has had the opportunity to review the evidence with his or her client, the defendant will have to decide whether to enter a guilty plea or go forward with a jury trial. Of course, if the defendant is found guilty by a jury the sentence imposed will be much greater than if the defendant enters a guilty plea. The severity of the sentence, as in all cases, will depend of the judge presiding over the case.

Reputed Columbia Drug Lord Appears in Miami Federal Court, The Miami Herald.com, September 22, 2010.

September 21, 2010

State Attorney's Office Offering Sealing and Expungement Program

The local state attorney's office is offering a workshop to assist those who are interested in sealing or expunging their criminal records. Before running down to the program or hiring a Miami criminal lawyer to seal or expunge your record, there are some things a person should know before laying out any money. The program being offered by the Miami-Dade County State Attorney's Office is being held at the University Lakes Homes Clubhouse located at 12850 SW 14th Street. The event will be held on Thursday, September 23, 2010 between the hours of 4:00 and 7:00.

After a person is arrested, even if the charges are eventually dropped by the state attorney's office, a permanent arrest record will exist for the world to see unless the record is sealed or expunged. Even if a person's criminal charges are dropped by the prosecutor, an arrest record can seriously jeopardize job opportunities and relationships. Sealing and expunging records is not overfly complicated, but a certain process must be followed. From start to finish is it usually take 4 to 5 months to complete the sealing or expunging of criminal record. In order to be eligible for an expungement, a defendant mus have had their charge no actioned or nolle prossed, or they are seeking to expunge a record that has been sealed for a period of 10 years. To be eligible to seal a record, a defendant must have received a withhold of adjudication.

The process requires that a person submit a Florida Department of Law Enforcement Application for Certification of Eligibility along with a certified disposition to the state attorney's office. The state attorney's office will run a background check to determine if a person has any prior convictions within the United States. If the records check does not reveal any convictions or prior sealed or expunged records, a prosecutor will sign off on the certification and return it to you or your criminal lawyer's officer. You will be required to submit your fingerprints along with the certificate to the Florida Department of Law Enforcement (FDLE) located in Tallahassee. FDLE will also run a national background check looking for criminal convictions or prior sealed or expunged records. A person with a prior conviction even a misdemeanor will preclude someone from sealing or expunging their record. Even a DUI conviction will prevent a record from being sealed or expunged. Once a person has been cleared by FDLE, the appropriate petitions affidavits and orders must be filed with clerk of court. A judge will review the file a determine whether a sealing or expungement should be granted or denied. The court will always grant the motion except in limited circumstances.

While a prior conviction will preclude a person from sealing or expunging their record, a person with no prior record may have a problem depending on the charge for which they were arrested. Both felony and misdemeanor cases can be sealed or expunged. Serious felony cases cannot be sealed or expunged. Charges that cannot be sealed or expunged include felony sex offenses, drug trafficking, fraud, child abuse, child neglect, or grand theft in the second or third degree. The benefit of sealing or expunging a criminal record is that it is not readily accessible to the general public; however, federal authorities, such as Immigration and Customs Enforcement (ICE) will get a hit as a result of a background check and in most instances, a person will have to disclose information regarding the arrest. Once a record is sealed or expunged a person can legally say they have never been arrested. Exceptions include: applying to be a law enforcement officer, school employee or Department of Children and Family Services employee.

Miami-Dade County Residents Offered "Second Chance" with Criminal Sealing and Expungement Program, SFLCN.com September 22, 2010.

September 20, 2010

State Drops Marijuana Charges Against Heat Player

Udonis Haslem, a professional basketball player, was finally exonerated of all charges in his marijuana possession and drug paraphernalia case. Police arrested the Heat star on August 15th after they allegedly stopped his car for having illegal tints. Police officers wrote in their reports that upon approaching Haslem's vehicle, they smelled a strong odor of marijuana. The odor of marijuana is enough to give officers probable cause to search a vehicle without a warrant under the automobile exception. Upon searching the vehicle, officers discovered the marijuana in pill bottles in two separate bags. The passenger in the vehicle admitted that the marijuana belonged to him and one of the bags belonging to the passenger contained a plane ticket in his name. Haslem has from the beginning denied any knowledge that his automobile contained marijuana. The Miami criminal lawyer representing Haslem has proclaimed his client's innocence since the arrest.

The case has been open pending the results of the fingerprint analysis of the four pill bottles. Once the results came back from the Miami-Dade County Crime Lab showing that Haslem's prints were not on any of the bottles, the state attorney's office no actioned or denied filing any charges against the defendant. The only prints that were able to be matched on the bottles belonged to the passenger. While the criminal attorney representing Halsem proclaimed that the arrest should have never been made, the prosecutor claimed that officers had probable cause to make the arrest because the marijuana was found in the defendant's car, the defendant was driving the car and the marijuana was near the defendant.

Many times in this county, arrests are made first with the investigation to follow. A better practice would have been to gather the lab evidence prior to making an arrest. Although the defendant in this case had significant assets to defend the case, regular citizens may not have the means to post a bond and hire an attorney to defend the charges. Once the arrest is made, money has to be spent that will never be recovered. The police should complete their investigation prior to making an arrest to be fair for a variety of reasons. Once a person has been arrested and the charges have been dropped the case and the arrest will show up as a matter of public record. The only way to remove the record is go through the expungement process which is a costly and lengthy process. Why should a person have to post a bond, hire a lawyer and then expunge the record if the police have not completed their investigation? The answer is, they shouldn't. That being said, nothing will be done to improve the system.

In all cases involving marijuana or cocaine possession or trafficking cases where the evidence is found in the car, knowledge of the presence of the illegal substance always has to be proven. These cases often arise when the driver is not the owner of the car or there are multiple passengers in a vehicle. Without being able to prove that the defendant had knowledge of the presence of the illegal substance the state will not have case. The strength of the defense will depend on the ownership of the vehicle and most importantly where the drugs were found and how they were packaged. Of course, all bets are off if anyone arrested for this types of offense feels the need to provide the officers with a statement. In order to give your criminal defense lawyer the best opportunity to defend your drug case, invoke your right to a lawyer and never talk to the police.

State Drops Pot Charges Against Miami Heat's Udonis Haslem, The Miami Herald.com, September 16, 2010.

September 16, 2010

Regional Director of Florida Immigration Seeking to Deport Felons

The new regional field director for Florida's Immigration and Customs Enforcement (ICE) apprehension and removal department issued a public statement indicating that his department is stepping up efforts to remove or deport illegal immigrants with prior felony convictions. According to Marc Moore, the agency is shifting its focus on capturing and deporting illegal immigrants with past criminal records. According to ICE records, they were responsible for deporting 136,000 convicted criminal aliens in 2008 - 2009 and that they agency has already deported 170,000 individuals this year. In the event you or someone you know is picked up by ICE authorities and is currently detained, it is imperative to consult with a Miami criminal defense lawyer that has extensive experience in vacating or setting aside criminal convictions.

In most instances, the only way to secure someone's release from immigration custody is to have a judgement and sentence vacated and secure a nolle pros or dismissal of the charges from the prosecutor's office handling the case. The first step in the process is to order the file from the clerks office. Many of the cases that are subjecting people to deportation are cases that occurred in the 1990's. These files are kept in storage and must be reviewed before filing a motion for post-conviction relief. After the file has been received, all documents in the file must be reviewed including the arrest affidavit, information, judgement and sentence and typed plea colloquy.

Once the file has been ordered, it is necessary to track down the court reporter in an effort to obtain the transcript of the plea that was taken years ago. If the court reporter or the transcript is not available, the court reporting agency will submit an affidavit to that effect. The Supreme Court recently handed down a decision in the case of Kentuck v. Padilla, which allow individuals to file motion for post-conviction relief for individual that received mis-advice from their trial lawyer regarding immigration consequences that could occur as a result of entering into a plea. Recently, Florida law has gone further to say that affirmative mis-advice from counsel can be cured if the trial judge accepting the plea informed the person of the potential immigration problems such as deportation as a result of accepting the plea. If the transcript of the plea does not exist, defense attorneys have more flexibility in drafting their motions for post-conviction relief.

A person's criminal record will go a long way in determining whether a motion for post-conviction relief will be granted. Before agreeing to the motion the prosecution will generally run a background check to determine if the person seeking relief has a prior criminal record. The prosecution will also look at the charge(s) that were pled to in the case seeking to be vacated. For example a person charged with cocaine possession, marijuana possession or lower level theft charge is more likely have their conviction vacated that a person convicted of armed robbery and sexual battery. Another important fact to remember is that ICE does not distinguish between a conviction and a withhold of adjudication. Finally, the jurisdiction where the case is closed, the judge and prosecutor currently handling the case will have a significant impact in determining whether a motion to vacate is granted. Also remember, just because a case is vacated, it is still a pending case and needs to be nolle prossed or dismissed to effect a release from immigration custody.

Florida Immigration Chief Says Felons are Top Priority,The Palm Beach.com, September 8, 2010.

September 15, 2010

Hialeah Man Sentenced to 30 Year Prison Term

A circuit court judge sentenced a local man to 30 years in prison for several violent crimes he allegedly committed in Hialeah. The defendant entered guilty pleas in three cases based on the strength of the physical evidence discovered by the police investigating the crimes. The defendant appeared in court with his Miami criminal lawyer from the public defender's office. The sentence handed down by the court was relatively light considering the allegations and charges filed against Jeosvany Salas. The very reasonable plea offer in light of the evidence was offered in an effort to keep the victims from testifying at trial to reduce the trauma. The defendant is alleged to have part of a group that committed numerous home invasion robberies during 2007.

The first case charged the defendant with kidnapping and sexual battery. The defendant broke into a home with two other unidentified men, tied up a woman and her daughter, held them at gunpoint and stole jewelry and electronics. Before leaving the residence, the defendant allegedly licked the woman. The crime scene detectives were able to collect a DNA sample from saliva found on the victim's chest. The collected sample matched the saliva sample extracted from the defendant.

The second case alleged that the defendant committed a robbery against a 73 year-old victim. Apparently, the defendant and his accomplices broke into the wrong house thinking they were going rob a wealthy Cuban man. Despite the fact that the assailants broke into the wrong home, they decided to rob the elderly woman. During the robbery they tied up the woman and taped her mouth shut. Detectives were able to locate a fingerprint on a the piece of scotch tape located at the crime scene that matched the defendant's fingerprints.

The third case against the defendant was a kidnapping charge that allegedly occurred when the defendant held a pawn shop owner hostage in his home for over 9 hours. The defendant and his accomplices beat the victim for hours in an effort to secure the pass codes to get into his store. The defendant was arrested fleeing the scene as the police arrived. According to the police, the defendant provided a full confession to the crime. While this case was initially the strongest for the state, the fist two cases became the strongest through the use of forensic evidence.

While confessions and identifications through show-ups or lineups are pieces of evidence often relies on by prosecutors, any experienced criminal defense lawyer will tell you that the far most compelling evidence that can be presented to jury is forensic evidence such as DNA, fingerprints, gun shot residue, to name a few. Jurors will often admit during the jury selection process that they favor physical forensic evidence over testimonial evidence. The only way to refute forensic evidence is for the defense to hire their own expert witness to re-test the evidence and possibly testify if any discrepancies are found. While hiring experts is an expensive proposition, there may not be alternative.

Hialeah Robber, Sentenced to 30 Years, The Miami Herald.com, September 15, 2010.

September 13, 2010

South Florida Resident Enters Guilty Plea to Healthcare Fraud Charges

A local woman entered into a guilty plea to Medicare fraud in United States District Court for the Southern District of Florida. Flor Crislongo pled guilty to one count of conspiracy to commit healthcare fraud. The defendant appeared with her Miami criminal lawyer and admitted her involvement in a $23 million HIV infusion scheme to defraud the federal government. According to the indictment, the defendant was the owner operator of a medical center who hired a doctor to conduct unnecessary testing, sign falsified medical reports and authorize treatments for unnecessary HIV injection and infusion treatments. The purported patients received monetary kickbacks for allowing their Medicare accounts to be billed. The indictment alleges that the Medicare recipients claimed to receive medical benefits despite the fact that HIV infusion treatments were not needed or on some occasions not even provided.

In another unrelated case, two Miami-Dade County men were sentenced for their alleged involvement in bribing assisted living facilities, nursing homes and home healthcare companies to bill Medicare for services that were never provided. Both men involved in the case entered a guilty plea to one count of heathcare fraud. Once defendant was sentenced to four years, while the other defendant was sentenced to 3 years in federal prison. Both defendants were looking at significantly more prison time, but cooperated with the authorities in the prosecution of the ringleader. The defendants received the benefit of a 5K, which allowed the judge presiding over the sentencing hearing to reduce the sentence based on the amount of cooperation provided.

Prior to his arrest, the ringleader fled to Costa Rica in an effort to avoid prosecution. The indictment alleges that he owned and operated four Miami-Dade clinics that submitted millions of dollars in bills to Medicare for claims involving medical equipment, unnecessary treatments and other medically related matters. This defendant has since been arrested and is awaiting extradition to the United States from Costa Rica. He had been previously indicted for healthcare fraud back in the 1990's, but was acquitted of all charges.

Both cases stemmed from investigations being conducted by the Medicare Fraud Strike Force. The Strike Force was implemented in 2007 and operates in more than seven districts across the country. To date, the investigatory group has secured the indictments of more than 810 defendants who as a group fraudulently billed Medicare in excess of $1.8 billion. Despite the activity of federal government and their unbridled efforts to quash the Medicare fraud problem, the news is replete with new arrests, new indictments and new conviction. If a person finds himself or herself being investigated by the law enforcement in this type of case, contact a Miami criminal law firm with experience defending Medicare fraud cases in federal court.

Woman Pleads Guilty to $23 Million Healthcare Fraud, The Miami Herald.com, September 13, 2010.

2 Miami-Dade Men Sentenced to Prison in Major Medicare Fraud Case, The Miami Herald.com, September 9, 2010.

September 8, 2010

Local Man Sentenced for 2007 Violent Crimes

A local man finally entered a plea after being arrested in 2007 for various violent crimes that occurred over a 24 hour period. Wayne Proctor was only 19 years-old when he allegedly committed the crimes for which he was charged. He has been held in custody without a bond since his arrest over three years ago. He appeared before a circuit court judge with his Miami criminal defense lawyer and entered a guilty plea into seven counts of armed robbery with a firearm, once count of attempted armed robbery and two counts of aggravated battery. Prior to entering the plea, the defendant and his counsel had negotiated a sentence of 15 years in state prison.

As part of the plea agreement, the assistant state attorney handling the case agreed to nolle pros or dismiss charges including armed sexual battery and armed kidnapping as part of the negotiated plea agreement. On many occasions, prosecutors will nolle pros or dismiss charges as part of a plea agreement. This is an important strategy for a defense attorney to pursue especially because pleas to prior crimes can be used to enhance or increase sentences for future offenses. As such, charge bargaining is an important part of any plea negotiation.

The defendant was accused of several separate crimes which occurred over several hours. Proctor was alleged to have committed a kidnapping of a Miami Gardens woman and pistol whipping her prior in order to steal her purse and money. The defendant then committed an armed kidnapping and armed robbery against tourists from St. Kitts. Police reports charged the defendant with stealing $60 dollars from the couple, then committing a sexual battery against the woman. The defendant then allegedly robbed three tourists at gunpoint of their jewelry and cell phones. Despite the violent nature of the offense, the defendant only received five years in prison despite the fact that he was facing several life sentences.

There are several factors that led to the 15 year plea offer. The defendant was only 19 at the time of the offense and had limited prior contacts with the criminal justice system. Although not mentioned in any of the police reports, defense counsel probably argued that his clients actions were not based on a violent criminal disposition, but rather he committed the acts to facilitate a raging drug addiction. The criminal lawyer representing Proctor most probably compiled a lengthy mitigation packet and delivered it to the prosecution and the judge for consideration. Mitigation packets are effective tools used to persuade both judges and prosecutors that a defendant's actions can be explained based on childhood shortcomings or substance addictions. What ever strategy was employed by the defense in this case, it was very effective in light of the time the defendant was facing.

Teen Gets 15 Years in Miami Crime Spree, The Miami Herald.com, August 26, 2010.

September 3, 2010

Prosecutors Get Verdict on 17 Year-Old Murder Case

Local prosecutors obtained a guilty verdict in a little more than an hour on a 17 year-old murder case. The unusual thing about his case is that detectives were never able to recover a body. All Miami criminal defense attorneys know how difficult it is to convict a person of murder without a body. It is so difficult to prove a case without a body that this case is only the second no body murder conviction in Miami-Dade County's recent history. The reason it is so difficult to prove a murder case without a body is that the prosecution cannot call the medical examiner to testify as to the cause of death of the victim. In the majority of murder and manslaughter cases, the most compelling evidence that is often presented is that by the medical examiner.

It took a took a jury a little over an hour to convict Christopher Phillips for the second degree murder of his former girlfriend. The lack of a body was overcome by strong witness testimony presented by the prosecutors for the Miami-Dade County State Attorney's Office. Phillips along with other youths traveled to Miami, Florida after Hurricane Andrew looking for work. Phillips, a purported drug dealer and roofer hooked up with the victim who was working as a waitress in a Homestead restaurant. Evidence was produced at trial describing Phillips as a violent and manipulative boyfriend. Workers from the restaurant testified on behalf of the state that the defendant always hung around the restaurant, jealously guarding his girlfriend and often demanding her tip money. Other testimony described the how the victim appeared for work with black eyes and bruises.

The most damning testimony put on by the prosecution was the testimony of a bartender, the defendant's uncle with a long criminal felony record and the defendant's ex-wife. The bartender testified that she had overheard on several occasions from the defendant's own mouth that he caused the disappearance of his ex-girlfriend. In fact, the bartender had at one time confronted the defendant about killing the victim. According to her testimony, upon asking the question, the defendant's eyes welled up and walked way from the witness. The defendant's uncle testified that Phillips's had bragged to him on several occasions that he in fact had murdered his ex-girlfriend, even describing in graphic detain how he choked her to death. The defendant's ex-wife testified regarding the defendant's past violent conduct.

Criminal cases can be proven by two forms of evidence, physical and testimonial. Examples of physical evidence include, ballistics reports, DNA evidence and other types of evidence obtained from the crime scene. The murder weapon, whether it be a gun or knife would also be considered physical evidence. Witness testimony is considered testimonial in nature. The law in the State of Florida requires jurors to not give more weight to either type of evidence. In fact, the judge will provide jury instructions to jurors regarding that law. Be that as it may, most jurors will honestly tell you that they give more credence to physical evidence than testimonial evidence. The jurors in this particular case were able to follow the law and convict Phillips without a shred of physical evidence.

No Body Found, but a Guilty Verdict in Homestead Woman's Death, The Miami Herald.com, September 3, 2010.

September 2, 2010

Mother Charged with Manslaughter for Child's Death

A mother who negligently left her child in a car was arrested on the charge of manslaughter. The defendant appeared before a bond hearing judge on August 31, 2010, and was granted house arrest with the condition that she be allowed to obtain psychological treatment and attend the funeral of her young son. While the standard bond in this type of case is $10,000.00, bond hearing judges have the discretion to release defendants without requiring them to post a bond. Of course, this result will often depend on the facts of the case. The state argued that a $10,000 bond was reasonable, but the bond hearing judge felt that the defendant had suffered enough as a result of the loss of her son. The defendant was represented by a Miami criminal defense lawyer from the Miami-Dade County Public Defender's Office.

Maytee Martinez is charged with manslaughter for leaving her three year-old son in the back of her SUV, where the child was over come by heat and suffocation. Martinez realized she had left the child in her SUV and called 911. When the police arrived, they found the boy "stiff, purple and not breathing." Despite the efforts of law enforcement and fire rescue, the child could not resuscitated. The defendant told the police that she had dropped off three other children at school, ran some errands, and failed to take the child out of the vehicle upon returning home. Many family members and friends appeared at the bond hearing to show their support. Despite her criminal past, the court ordered her release.

Martinez has been arrested in the past on charges including battery on the elderly and misdemeanor battery. Courts records indicate that the battery on the elderly arrest stemmed from an incident where she allegedly shoved her elderly mother an aunt when demanding money. A check of those arrests revealed that all of those cases were dropped due to a lack of victim cooperation. The Florida Department of Children and Family Services (DCF) acknowledged that the defendant has previously been involved in the system, but could not provide information due to confidentiality. This is the second case in South Florida in a month involving the death of child being left unintended in a vehicle.

Most felony cases require that a defendant post a bond. Remember, if you can not afford a bond, there are alternative ways to secure a person's release from jail. First, a judge can grant a defendant pre-trial services. Defendants with limited criminal histories that are charged with minor felony offense will be give the opportunity to get out jail. A bond will not be required to be posted, but the defendant will need to be interviewed and will have to report at least once every two weeks to a pre-trial release supervisor. Pre-trial services is a little more onerous in this respect because individuals out on bond do not have to report to anyone. Another option is house arrest with a bracelet. While no money has to be posted up front, a defendant is jailed inside his home, but he or she can attend work and go to school as long as permission has been granted. However, the fees and cost of house arrest can be expensive easily exceeding $100 a month. In sum, the best way to secure one's release prior to trial is to post a bond, but if resources are limited there are other alternatives.

Mother Accused in Son's Death Gets House Arrest, CBS4.com, August 31, 2010.

September 1, 2010

Gang Related Violent Crimes on the Rise in Kendall

A South Florida neighborhood has seen a rise in violent crimes committed by local gangs. The West Kendall area has been the location of several gang-related drive by shootings this year. The Hammocks District of the Miami-Dade Police Department is responsible for investigating the gang related activities committed in the Kendall area. Eight shootings have been reported over the past eight months. Three 17 year olds have been charged with the offense of attempted first degree felony murder. While the law in the State of Florida considers these defendants juveniles, the same laws allow for the Miami-Dade County State Attorney's Office to bind these defendants over to circuit court to be treated as adults. The defendants will either be appointed a Miami criminal lawyer for the public defender's office or the defendant's family will hire a privately retained Miami criminal defense law firm. Investigators are continuing to look for other gang members involved in the shootings.

Hammocks investigators have determined that the shootings are occurring as a result of a gang war that is developing in Kendall. The spree of shootings apparently is the result of retaliation for the shooting death of one local gang member. An 18 and 19 year-old have been arrested and charged with first degree murder and are being held without a bond in the Dade County Jail awaiting trial. Because first degree murder is a capital offense, the defendants are not entitled to a bond. However, the defendants can requested a type of bond hearing called an "Arthur hearing" where their defense lawyers can try to obtain bond. According to police investigations, the ongoing gang war is being conducted between the "Southbound Thugs" and the 137th Avenue Boys".

The Hammocks section of the Miami-Dade Police Department are taking an active approach to quelling the violence in the Kendall neighborhood. Detectives are actively tracking gang members and showing a strong police presence where gang members go and through the use of confidential informants. The Miami-Dade County State Attorney's Office also has a specially designated gangs unit that is used to prosecute gang members throughout the county. While gang members are normally of the age that allow them to be treated as juveniles and youthful offenders, prosecutors tend to deal with these type offenders more seriously than the run-of-the-mill youthful offenders.

The defendants under the age of 18 are normally prosecuted in the juvenile courts system. However, in severe cases and cases involving gang members, the prosecutor's office will often send these defendants to the adult court system to be prosecuted. Once juvenile is arrested, it is important that the defense attorney representing the client meet with the juvenile prosecutors in order to keep him or her within the juvenile system. Many times the result will depend in large part on the offense for which the juvenile is charged. For example, a defendant charged with murder will always be sent to adult court, while a defendant charged with burglary will probably be left to remain in the juvenile system. Of course, the mission becomes more difficult if the defendant is linked to gang related activity. Even if a defendant is direct filed to adult court, hope is not lost, the state still has to prove the case, and in the vent of a strong case, he or she will be eligible for youthful offender sanctions in adult court.

Drive-By Shootings on the Rise in West Kendall, The Miami Herald.com, August 30, 2010.