June 23, 2011

Congressman Seeks to Pass New Immigration Law

In 2005, the United States Congress passed a new law which forbid federal immigration authorities for indefinitely detaining illegal immigrants with prior criminal histories. Our community has always been the home to people living illegally in the United States. This reality has always been a cause for concern for Miami criminal defense lawyers because a criminal conviction or any type of criminal record for that matter is sometimes more devastating than a similar result obtained on behalf of a U.S. citizen. While the majority of illegal immigrants are deported for various criminal offenses on a daily basis, illegal Cuban immigrants can not be deported to their home country. Federal law prevents Cuban immigrants from being deported. The current state of law prevents illegal immigrants from being held in detention in excess of six months. The majority of non-Cuban illegal immigrants are deported to their country of origin within weeks or even days. Illegal Cuban immigrants are eventually released to resume their lives within the United States.

Congressman Lamar Smith of Texas has proposed a bill that will allow immigration authorities to indefinitely detain illegal immigrants with criminal records for violent crimes, such as murder and sexual battery, and for drug offenses, such as cocaine possession or marijuana trafficking. While deportation is an unpleasant thought for anyone to say the least, this proposed change in the law would affect illegal Cuban immigrants the most, as they would be incarcerated indefinitely, or at least until the U.S. policy towards Cuba is amended. While the proposed bill is not imminently going to become law, the change has garnered a lot of attention from both proponents and opponents. While the bill does not specifically refers to Cubans, everyone knows that it applies to them as they are the largest body of people residing in the United States that are not subject to deportation.

Proponents of the bill claim that the bill does not target Cubans, but all dangerous non-deportable individuals with criminal records for violent offenses, certain drug offenses and for certain crimes of moral turpitude. Immigration laws allow for the deportation of persons with records for aggravated felonies which are outlined in the federal statutes. The bill is not supposed to be retroactive if passed into law, but opponents of the bill claim that language within the proposed law will allow for detention for crimes committed prior to and deportation orders signed prior to the enactment of the legislation. Opponents also claim that the passage of the bill will result in thousands of illegal immigrants being jailed for years.

While the passage of the law is not imminent, all illegal immigrants and defense attorneys alike must be keenly aware of the harsh consequences of accepting pleas. Lawyers must know what criminal offenses allow for deportation and advise their clients accordingly. With individuals with prior records, the best option to prevent deportation is to file a motion for post-conviction relief with the hope of vacating a prior judgement and sentence and having the charge dismissed. Current changes in the law have made it increasingly difficult to obtain this result. Cut off periods have been instituted by the courts which limits the time for individuals to file motions that did not receive the legally required immigration warnings from the court or for individuals who received affirmative mis-advice from their lawyers regarding the possible deportation as a result of entering a plea. Anyone being held in immigration custody or facing deportation should seek out an experienced lawyer in handling these matters to determine the best course of action to prevent deportation.

Cubans Who Can't Be Deported Could End Up Detained in U.S., Miami Herald.com, June 21, 2011.

June 22, 2011

Life Sentence, No Death Penalty for Defendant

On September 30, 2010, a jury returned a guilty verdict in the trial of Coconut Grove resident Brandon Antron Rolle for the July 2006 first degree murder and robbery with a firearm of a lost Illinois tourist. The defendant remained in custody since he turned himself in on August 4, 2006. The Miami criminal defense lawyers representing the defendant were unable to secure an acquittal for the client. The sentencing phase was a little more successful, but in the end, the same jury voted 8 - 4 in a non-binding recommendation that the defendant be executed for his crimes. In accordance with state law, however, the task of making the final determination fell to Miami-Dade Circuit Judge Dennis Murphy. Generally, judges follow the penalty recommendation of the jury, and, at least according to local press reports, it was widely expected that this judge would decide in favor of the death penalty for Rolle. Unlike other felony cases, capital murder cases have two phases. The first phase determines the guilt or innocence of a defendant while the second phase will determine the punishment.

To the surprise of many, the judge's decision, issued on June 15, rejected the jury's death penalty recommendation and instead sentenced the defendant to life in prison for his role in Gentile's murder. The judge stated that this murder, while clearly a tragedy, fell short of being so heinous as to merit capital punishment, "only the worst of the worst are to be sentenced to death." The victim, a furniture salesman from Homewood, Illinois, had been visiting the Miami area to celebrate his son's 17th birthday. He had dropped off his son at the teen's place of employment at a local mall, and had planned to join him for a movie later that day. Driving a rental car in the unfamiliar city, Gentile got lost in Coconut Grove. The 54-year-old tourist stopped to ask 26-year-old Rolle for directions. Rolle, who had been out of prison only 17 days for another crime, shot and killed the tourist, and stole Gentile's wallet, a diamond ring, a gold bracelet, and a necklace in what Miami defense attorneys later characterized as a robbery gone terribly wrong. Gentile managed to exit the car and walk a shot distance before he collapsed. He was pronounced dead en route to Jackson Memorial Hospital.

Police investigators found Rolle's fingerprint on the rented Chevrolet Cobalt's driver-side door, and an eyewitness, a Liberty City convenience store clerk, testified that Rolle attempted to sell him some of Gentile's property. Rolle's then girlfriend also testified that Rolle used Gentile's mobile phone, and had her pawn some items of jewelry he had taken from Gentile. The girlfriend also provided police a picture Rollo took of himself in a nightclub with his finger making a gun-like gesture while he wore a bracelet later identified as having belonged to Gentile. Prosecutors argued to the court that Rolle deserved the maximum sentence. Rolle already had been in prison on three separate occasions and had squandered the opportunities given him to straighten out his life and amend his criminal behavior.

As noted above, Rolle's defense team rejected the prosecutor's argument, and the jury's recommendation for the death penalty, stating that execution was too severe a punishment for what amounted to a robbery that went fatally sour. The judge sided with the defense. After the judge issued his decision to impose a life sentence rather than the death penalty, Miami-Dade State Attorney Katherine Fernandez Rundle told the press that, "We respect the role of the court, which has the ability to override the jury recommendation. We did our job. He did his."

Miami Man Gets Life, Instead of Death Penalty, for Grove Tourist Murder, Miami Herald.com, June 15, 2011.

June 15, 2011

Beach Cops and Cameras Don't Mix

Memorial Day weekend on the beach again resulted in violence and arrests. With the evolution of cell phones has come the ability of civilians to video police actions. Several incidents of police officers seizing or destroying cell phone were reported during the long weekend. The police chief of Miami Beach claimed in a statement that cell phones are taken to preserve evidence and not to cover up police misconduct. Miami criminal defense lawyers who have represented clients arrested on the beach will testify that many arrests occur as a result of innocent civilians video recording police misconduct. According to public records, there have been 11 incidents where police have either arrested individuals for filming police actions or instances when cameras have been confiscated by law enforcement. Records of police abuse regarding videos date back to 2008. Some examples of these conflicts are:

In January 2008, two individuals filmed an ordinary traffic stop. They were forcibly removed from the vehicle, beaten and charged with disorderly conduct. After a thorough investigation, the Miami-Dade County State Attorneys Office dropped the charges. Later in 2008, a woman filmed a police officer beating a man outside a Miami Beach bar. The police that took her camera were exonerated of theft and battery after an internal affairs investigation was conducted. In 2009, a photo journalist was arrested for taking a picture of an arrest. The police took him into custody and charged him with drunk and disorderly conduct. Yet again, the charges were eventually dismissed. During Memorial Day weekend in 2009, a husband and wife were arrested for disorderly conduct and had their cell phone confiscated because they filmed officers beating a man who had used profanity toward the officers. Charges were again dropped by the state. You can see the ongoing pattern.

The problem got so bad that several people formed a group calling itself Channel 62. One of its members became engaged in a verbal confrontation with Miami Beach offices and was subsequently arrested for driving under the influence "DUI". Another member of the group attempted the video the event, until the camera was seized. The police in turn issued a warning to its officers to use extreme caution when dealing with the group as they were armed with cameras. The department has since implemented a training program which instructs cops when and how they can confiscate cameras. Bear in mind that Miami Beach is not the only jurisdiction that has had issues with cell phone cameras. A Broward County officer was suspended with pay for snatching a woman's cell phone and destroying it during an arrest.

While using a camera is well within one's constitutional rights, a bystander who wants to become involved by filming must be prepared to be arrested. Regardless of the outcome of the case, a trip to jail and attending a bond hearing could certainly be in the cards. If anyone is arrested and falsely accused for simply filming the police, it is imperative to hire a criminal defense law firm quickly so that inquires of the police can be made. In certain instances, internal affairs complaints must filed immediately. The longer the delay in filing the complaint, the less credence it may be given. The state attorneys office must be contacted immediately with the hope that the criminal prosecution can be headed off quickly with a dismissal of the charges. While filming police action is certainly legal, it can be a costly endeavor.

A History of Cops vs. Cameras in Miami Beach, Miami Herald.com, June 14, 2011.

June 7, 2011

Local Cop Facing Federal Drug Charges

A local city police officer was arrested last week and charged in federal court with possession of cocaine with intent to distribute and possession of marijuana with intent to distribute. Court records indicate that the former Miami police officer is accused of taking drugs from dope dealers and selling them on his own. Roberto Asanza was six year veteran of the City of Miami Police Departments crime suppression unit. The unit has operated in the streets for years playing a major role in taking drugs off of the streets. Many believe that all police officers are to be trusted. While the arrest of an officer may seem unfortunate to some, Miami criminal defense attorneys know that criminal cases fall apart when officers listed as witnesses in their client's case are arrested or indicted. Prosecutors can not proceed with criminal charges against a defendant if police officer involved in the case are charged with criminal conduct.

In Miami, we are constantly reminded that law enforcement officials are just a capable of committing crimes as anyone else in the community. U.S Attorney Wilfredo Ferrer, along with the FBI agents and City of Miami Police Chief Miguel Exposito, publically announced the arrest of the Miami police officer. The FBI claims that the defendant along with other crime suppression officers arrested a man for drug possession and seized multiple bags of cocaine and marijuana. A few weeks after the seizure, FBI agents stopped Asanza and allegedly found ten bags of cocaine and two bags of marijuana in his vehicle that were purportedly seized in the earlier bust. The defendant allegedly consented to the search allowed the agents to find ten bags of cocaine and two bags of marijuana. The FBI subsequently determined that these drugs formed part of the cache taken in the Allapattah dope arrest.

The FBI investigation with the assistance of the City of Miami Police Department, now also involves Asanza's supervisor. According, to the FBI affidavit, in January 2010, Asanza and a fellow Miami police officer, identified as "R.I.," recruited a confidential informant (CI) to work with the undercover squad. "R.I.", according to the press, is Raul Iglesias, 38, a Miami police sergeant, and a 16-year veteran of the force. Iglesias apparently was formerly in charge of the Central District's suppression unit. He was suspended, with pay, from that position after the FBI's stop of Asanza's vehicle. Iglesias, who has not been charged, remains under investigation by both the FBI and the City of Miami police. Federal prosecutors will undoubtedly seek assistance from Asanza to prosecute Iglesias. The defense attorney representing Asanza will have to determine the strength of the government's case before advising his client to provide information against a fellow officer.

In October of last year, Asanza reportedly admitted to the FBI that he and Iglesias took drugs and money from the Allapattah drug dealer, following a tip they received from their CI. Asanza, according to the FBI, also acknowledged that he and Iglesias paid the CI with drugs and money, this apparently in an effort, per Asanza's reported statement to the FBI, to build a relationship with the CI that could prove useful in the future. The CI allegedly received about $120, including $80 taken from the drug dealer, and two bags of cocaine from Asanza and Iglesias. If convicted, Asanza could be receive a maximum sentence of 20 years in prison.

FBI Bust Miami Cop on Drug Charge, The Miami Herald.com, June 2, 2011.

June 2, 2011

Photo Line-ups are Flawed

The credibility of photo lineups in Florida criminal proceedings has come under recent attack both from the legislature and the Innocence Project of Florida, a non-profit organization, that works to overturn wrongful criminal convictions. The organization sometimes solicits the assistance of Miami criminal defense lawyers. According to the Innocence Project, eyewitness misidentification accounts for over 75% of all wrongful criminal convictions nationwide. The issue gained particular prominence in Florida after the release of Derrick Williams on April 4 of this year. Imprisoned for sexual battery since 1992, Williams was convicted following an eyewitness identification. He was released from prison when DNA testing conclusively eliminated him as the assailant.

A large number of variables can affect the reliability of witness identification during a photo lineup, such as, how much the witness learns about a particular suspect in custody; the actions and attitudes of the police officers administering the lineup that might cause a witness to feel pressure to make an identification; and, of course, the quality and the nature of the pictures themselves. Flawed line-ups have sent defendants to prison on very serious charges such as armed robbery and various sex crimes. In February of this year, Republican Senator Joe Negron of Palm City and Democratic Representative Perry Thurston of Ft. Lauderdale, submitted separate bills calling for a massive overhaul of witness identification procedures in the State of Florida. The bills received the support of criminal attorney from state's public defender offices, the American Civil Liberties Union and the Innocence Project of Florida.

Among other proposed changes these bills called for witnesses to be issued a disclaimer that would, inter alia, warn the eyewitness that the suspect might not be in the photo array; make clear that the witness does not have to identify someone; and, that the investigation of the crime will continue with or without a photo lineup identification of a suspect. If police do not follow this new protocol, a jury or judge could take that into consideration when determining the reliability of an eyewitness identification.

Though both bills have failed to prosper, their basic proposed provisions have become the foundation for changes advocated by the Florida Innocence Commission, a statewide panel chaired by Chief Judge Belvin Perry Jr. Two weeks ago on May 16, the commission met at the Rosen Plaza Hotel in Orlando. Among their recommended changes were,

1) Reducing the suggestiveness of photo lineups by insuring no suspect in the pictures has overtly distinguishing characteristics, e.g., if the alleged perpetrator is of a certain race or color, that there not be just one or two photos of suspects of that race or color;
2) Procedures be administered in a "double blind" fashion, to wit, neither the witness nor the administering officer will know if the suspect, in fact, is in the photo lineup; and,
3) Pictures be shown one-by-one.

The commission has no official law-making powers. Absent, therefore, action by the legislature, the burden falls entirely on state and local law-enforcement agencies to implement the proposed changes. As expected, law enforcement officials are hesitant to embrace the reforms. Charlotte County Sherriff, Bill Cameron, acting as a representative of the Florida Sheriff's Association, charges that these changes send the wrong message to the community, specifically, that law enforcement "should not be trusted." Photo lineups have long been a hallmark of criminal convictions. Challenging their reliability could have a profound effect not only on how criminals are prosecuted, it could complicate convictions of persons already imprisoned by opening the door to appeals. Law enforcement agencies have said that such bills or changes are unnecessary and even redundant as these agencies already have underway new guidelines that would require similar protocols.

Florida Legislature Looks at Better Criminal Identification Procedures, Digital Journal.com, May 8, 2011.

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 Herald.com, 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 Times.com, 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 Miami.com, 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 Herald.com, 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 Herald.com, May 2, 2011.

April 27, 2011

Dolphin's Player Victim of Domestic Violence

Brandon Marshall has again been thrust into the criminal justice system, but this time as the victim of domestic violence. The dispute occurred last Friday night between Marshall and is wife. The dispute resulted in Marshall's wife allegedly stabbing him in the abdomen causing him to spend the night in the trauma unit in Broward General Hospital. His wife, Michi, was arrested and booked on the charge of aggravated assault with a deadly weapon. The defendant will either retain a Broward County or Miami criminal defense attorney to represent her in circuit court. Aggravated assault is a third degree felony punishable up to five years in prison. The defendant will most likely not face any period of incarceration as she has no prior criminal history.

Domestic violence cases are handled differently in Miami-Dade County from other types of criminal charges. In most other criminal cases, anyone arrested will receive a standard bond when booked into the jail and can immediately bond out of custody. Capital crimes and offenses that are punishable by life in prison do not afford a defendant a bond at the time of booking. Domestic violence charges have standard bonds, but defendants are required to appear before a judge before they can be released from jail. The bonds vary depending on the offense charged. Misdemeanor offenses such as simple battery generally carry a $1,500 bond, while felony offenses such as aggravated assault and aggravated battery have standard bond of $5,000.

Defendants in domestic violence cases are required to see a judge before their release for a couple of reasons. First, judges have any obligation to issue a stay away order to defendants charged in domestic violence cases. Stay away orders preclude defendants from having contact from victims. The order forbids defendants from contacting victims in person, telephonically, through e-mail or text messages. The order further forbids defendants from making third party contact with victims. Experienced criminal defense attorneys can appear before the judge presiding over the case and seek a modification of or discharge of the stay away order. The judge will require the victim to appear in court and provide sworn testimony under oath before a modification or discharge will be ordered. Secondly, preventing the early release provides for a short cooling off period.

Domestic violence charges are serious, not necessarily in terms of the punishment, but convictions or even withholds of adjudication will prevent a sealing or expungement of the record at a future date. First time offenders are generally offered pre-trial intervention which will which result in a nolle pros or dismissal if the defendant complies with all of the conditions set forth by the state attorney's office. Then and only after the case is dismissed can a defendant seek to seal or expunge his or her record. The victim must agree for any type of program to be offered to the defendant. If the victim does not concede to the program, probation will probably be offered. In either event, the defendant will be required to complete a rigorous 30 week batterer intervention program ("BIP"). These results are only options to a defendant charged with domestic violence. All defendants have a right to trial and can seek an acquittal from a jury compiled from residents of the county where the case is tried.

Miami Dolphin's Brandon Marshall Released from Hospital after Stabbing, Miami Herald.com, April 24, 2011.

April 21, 2011

Pre-Trial Release Programs Benefit Defendants and Taxpayers

Currently, efforts are underway by a special interest group to cut or end pre-trial release programs. Pre-trial release programs were created to benefit defendants charged with non-violent crimes and taxpayers as well. An experienced Miami criminal defense attorney will always attempt to secure a client's release through a pre-trial release program rather than posting a bond as it is much cheaper. In state court, all crimes, except for life felonies, have a standard bond. The bond is set as soon as a defendant is booked into the Miami-Dade County Jail. A defendant can post a bond one of two ways. A defendant can put up the cash for the entire amount of the bond to secure his or her release. At the conclusion of the case, the money put up for the bond will be returned to the person who posted it. If a defendant does not have the financial ability to post a cash bond, a bondsman can be hired to secure the release.

A bondsman will post a bond if a defendant pays 10% of the amount of the bond. This amount is referred to as the premium. For example, if a defendant is arrested for marijuana trafficking and the bond is set at $50,000, a $5,000 premium paid to the bondsman will secure one's release. Bondsmen may require a larger premium if a defendant lives outside of the county, state or country. If a defendant is not able to avail himself or herself or a pre-trial release program and cannot afford the premium being sought by the bondsmen, then a lawyer can appear at bond hearing and ask for a reduction or file a motion for bond reduction and have the matter heard before the circuit court judge presiding over the case. A compelling argument will often cause a judge to reduce the bond allowing the defendant or his or her family to come up with the premium for the bondsman.

Even if a defendant can afford to post a cash bond, or has the money to give the 10% premium to a bondsman, certain offenses have a Nebbia requirement. Offenses that almost always have Nebbia requirements include drug trafficking, mortgage fraud, insurance fraud, etc. The purpose of the Nebbia is to prove to the prosecutor and the judge that the money and property being used to secure the bond does not come from the criminal enterprise for which the defendant is charged. The defendant will have to prove that the money used to post the bond comes from a legitimate source. Any property put up as collateral for the bond will also have to be traced back to demonstrate that it was obtained though legitimate means.

While pre-trial release is less costly to the defendant, it is more onerous because it requires monitored supervision. Defendants in a pre-trial release program have reporting requirements and are even sometimes required to maintain a schedule for employment and other activities. The restrictions placed on a defendant are within the sole discretion of the judge. The taxpayers truly benefit from these programs. Pre-tria release costs the taxpayers $5 dollars a day, while it costs the taxpayer $75 dollars a day to house an inmate. Some are concerned about the safety of the community when it comes to these types of programs. Only defendants charged with non-violent crimes such as theft, simple drug possession or felony traffic crimes will be give pre-trial release. Defendants charged with aggravated assault, sexual battery, or robbery will never be granted pre-trial release which should ease the minds of the community.

Preserve Pre-Trial Programs, Tampa Bay Online.com, April 21, 2011.

April 15, 2011

Golden Beach Police Officers Arrested for Theft and Fraud

The Golden Beach Police department can now boast of three recent arrests of police officers accused of allegedly skimming money from the town and the taxpayers who reside there. The officers are currently charged with grand theft and organized scheme to defraud. Reports indicate that the officers failed to pay the town a portion of income earned by working off-duty jobs. The town requires that officers report all off-duty hours worked and further requires that they pay a $5 fee for every hour worked. The fee is supposed to compensate the town for police car maintenance, uniforms, gasoline and insurance costs. The defendants will all retain private Miami criminal defense attorneys to defend the charges.

The amount of the fraud is minimal, with one defendants allegedly bilking the town out of $1,500 and the other about $2,100. While most first time offenders would normally be offered the pre-trial intervention (PTI) program, officers are generally held to a higher standard and will not be offered an opportunity to resolve their cases in that manner. The pre-trial intervention program is usually offered to all first time defendants that are charged with non-serious, non-violent felony offenses. The defendants are required to complete certain conditions in exchange for a nolle pros or dismissal from the state attorney's office. The conditions that are usually required to be completed include community service hours, certain programs such as drug classes, domestic violence classes and theft classes, and fines and charitable contributions.

Defendants who are also police officers are not offered the program, but will be offered pleas that require them to give up their FDLE certifications or their licenses to be police officers. Because any plea with this condition will effectively end a police officers career, the majority of cases involving police officers go to trial. A lot also depends on the amount of evidence that exists against these defendants. Cases involving police officers are handled by the public corruption unit in the Miami-Dade County State Attorneys Office. While a specialized unit handles the prosecution, the cases, like all others are blind-filed or randomly assigned to one of the 20 criminal circuit judges sitting on the bench.

The officers like all defendants will have an arraignment date scheduled 21 days from the date of the arrest. During that 21 day period, an assistant state attorney will review the reports and talk to witnesses to determine if there is enough evidence to proceed with the case. If the prosecutor does not have enough evidence to file the case, he or she will no action the case and it ends there. If there is enough evidence to proceed, the prosecutor will file the charges and the case will be set for trial. Just because a case is filed does not mean all hope is lost. The defense lawyer handling the case will be permitted to engage in discovery and depose the majority of the state witnesses. Many cases become more defensible as the discovery process proceeds. The discovery process can provide defense counsel with the ammunition needed to file pre-trial motions such as motions to suppress and dismiss. Another plus is that the cases may get so weak that the state can seek to resolve in ways that avoid a plea and a trial. That is why any one arrested must find experienced counsel to represent them in criminal proceedings.

Two More Golden Beach Cops Arrested, Miami Herald.com, April 12, 2011.

April 11, 2011

Defendant Enters Guilty Plea in Federal Medicare Fraud Case

A South Florida woman entered a guilty plea in the Southern District of Florida for her involvement in the largest Medicare fraud case in the nations's history. Margarita Acevedo appeared with her Miami criminal defense attorney in federal court. She is facing between 12 and 15 years in prison for her role in the $200 million healthcare fraud. The indictment alleges that Ascevedo recruited senior citizens with mental health issues residing at assisted living facilities (ALF's) and halfway houses. The proprietors of these establishments would send hundreds if not thousands of patients to seven mental healthcare facilities operating under the name of American Therapeutic.

Acevedo was one of 24 individuals indicted for their involvement in the multi-million Medicare fraud scheme. She and the other defendants are facing long prison sentences. The lengthy prison sentences are not attributable to the crime itself, but the federal sentencing guidelines take into account the amount of loss to the victim when calculating a sentence. Medicare fraud along with other offenses such as larceny, forgery or theft start at a base level offense at 7. Levels will be added depending on the amount of the loss to the government, financial institution, or individual. Other level increases exist depending on the actions of the defendant and the type of victim involved in the case. Anyone interested in looking at the guidelines for these types of offense should check section 2B1.1 in the sentencing guidelines.

Despite the lengthy sentence Acevedo is facing on paper under the federal sentencing guidelines, she will likely on serve a third or even a half of the time she was facing as a result of her cooperation with federal prosecutors and law enforcement investigators. The government will expect many things from her in order for her to receive a significant sentence reduction. First, she will be required to speak with law enforcement and describe in detail the inner workings of the operation. She will also be required to point the finger at the owners and operators of the clinics who provided the fraudulent treatment. She will be required to lay out for the government which individuals at the ALF's and halfway houses were referring over patients and receiving kickbacks. Finally, she may be required to testify against any and all of these individuals at trial.

Acevedo and other individuals at American Therapeutic recruited the living facilities to send patients in exchange for kickbacks. Personnel at the facility would receive $30 for every patient referred over to the clinics. As usual, Medicare did not discover the fraud despite the unusually high number of claims being filed by American Therapeutic. The fraud was only discovered after clinic employees complained that the patients being sent over were beyond help. The owners of the clinics have also been charged and relayed their intent to plead guilty once the amount of loss has been fairly calculated. As stated earlier, the amount of loss is critical in determining the amount of time someone is facing for fraud related charges in federal court.

First Miami Defendant in Nation's Biggest Health Fraud Case Pleads Guilty, Miami Herald.com, April 8, 2011.


April 5, 2011

Tourists Beware

South Florida has always been a hotspot for both tourists and vacationers. Often times visitors get more from the vacation they envisioned. For example, drinking and partying on South Beach in Miami, Florida recently led several people to be manhandled and arrested by the police. Over the years, the records are replete with tourists being arrested for charges including drunk and disorderly intoxication, assault, battery, resisting an officer with violence and battery on a law enforcement officer. While the charges and levels of criminal offense vary, non-locals arrested in Miami-Dade County and in particular, Miami-Beach, should seek an experienced Miami criminal defense lawyer to fight the charges. While it may seem an easier path to accept a plea bargain as a matter of convenience, this result can often have unforeseen circumstances such as loss of employment or immigration problems down the road.

In the most recent case, a female tourist was ejected out of a show for disorderly conduct. Security staff pointed out the lady to Miami Beach police officers who eventually had enough and threw her to the sand. Another man came to her aid and became involved in a scuffle with the security staff as well. The officers shot pepper spray in the female's face. According to police reports , the man struck an officer in the head with a weapon causing the officer to go to the hospital for stitches. The woman was charged with disorderly conduct and resisting an officer without violence. The man who intervened in an attempt to assist the women was charged with aggravated battery on a law enforcement officer and resisting an officer with violence.

If you are from out of town and are arrested in Miami-Dade County, there are several things you must remember. First and foremost, have friends or family post your bond. You can wait until your bond hearing, but the judge will not give you pre-trial release because you are from out of town and inevitably you will have to post the bond. Have your friends or family contact a bondsman. There are hundreds of bondsman roaming South Florida. Normally, a bondsman will require you to pay 10% of bond to secure a person's release. For example, you will be required to pay the bondsman $1,000 on a $10,000 bond. However, a bondsman may require additional collateral because the person is not a resident of the county. After securing your release, look for a qualified criminal attorney to represent you. You can hire a lawyer in person or by telephone depending on when you are scheduled to depart the area. Before hiring a lawyer, do some research and request a consultation so that you are comfortable with the person representing you. Your case will be scheduled for an arraignment. You will not be required to attend this hearing as long as you are represented by counsel.

Most out-of-towners are first-time offenders and can generally avail themselves of the pre-trial diversion program (PTI). In exchange for completing certain conditions, the state will nolle pros or dismiss your charges. The program is available for misdemeanor and less serious felony charges. Charges such as aggravated assault and aggravated battery will probably not allow for the program, at least in the preliminary stages of the case. PTI is voluntary and does not have to be accepted by a defendant. In many instances, based on the facts and circumstances, a case should be vigorously defended as a matter of principal as many defense man exist to beat the charges and the case. Qualified defense counsel will review the discovery including police reports and in most instances have the right to depose witnesses. Once a case is evaluated, it is easier to make a decision in how to proceed with the case.

Miami Beach Police Defend Actions in Videos Showing Confrontation, Orlando Sentinal.com, March 30, 2011.