Joe Exotic, the Tiger King has Won the Chance for a Lower Sentence

Joe Exotic

A Federal Appeals court has ruled this week that Joe Passage-Maldonado, who goes by Joe Exotic and was featured in the hit Netflix docu-series, is entitled to be resentenced to a shorter sentence. He was sentenced last year for an attempted murder-for-hire plot and for the killing of several endangered tigers at his former zoo. He was sentenced to 22 years for al the charges, but the court ruled this week that his sentencing guidelines were improperly scored too high. The court found that the sentencing judge improperly treated his two convictions for attempted murder separately, as they evinced a common criminal purpose. When scored as one conviction, will substantially lower the minimum guideline sentence.

With the ruling, the guideline range minimum will go from 22 years down to 17 and a half years. There will be a new sentencing hearing, and Joe’s attorney will likely push for the court to go even lower than 17 years, especially in light of Mr. Passage-Maldonado’s health issues. Joe has indicated in statements that he does not expect to survive the sentence, as he is suffering prostate cancer. The court has the option to sentence him within the range indicated by the guidelines- last time he was sentenced at the bottom of the range, as he has no priors or other aggravators. One would anticipate the sentence would go down, as the range has shifted down, but the court can consider other factors, if new information is presented, which could convince the court to go below the guideline range. A new hearing will be set some weeks down the road.

Man Claims Self-Defense in Killing Iguana (Yes, It’s in Florida)

PJ Nilaja Patterson claims the encounter he had with an iguana was self-defense, claiming the 3-foot green iguana was the aggressor and that he was acting in self-defense when he killed the creature. A laceration on his arm from a bite required 22 staples to close up. Prosecutors counter that a surveillance video of the incident shows that Patterson tormented the animal, and then went into a violent rage when it bit him while defending itself. The iguana had to be put down due to the injuries suffered in the confrontation.

PJ Nilaja Patterson

Patterson claimed immunity from prosecution under Florida’s Stand Your Ground law, that allows the use of force when defending oneself. A judge has denied the motion, however, Patterson still has a right to argue justifiable use of force at trial.

Green Iguanas are invasive creatures, and it is permitted to kill them under Florida law, but it must be done humanely. It’s not the first time we’ve covered the inhumane killing of an iguana that led to felony animal cruelty charges. The state has cleared it’s initial burden to allow the case to go forward, but to convict him, they will have to prove beyond a reasonable doubt that he did not have a reasonable fear, or that the level of force use was not justified.

It’s not the first time we’ve seen self-defense argued for the killing of an animal. In 2013, a man accused of killing a protected sandbar shark testified at trial in Fort Myers that he killed the animal in self-defense. The court rejected that claim and he was convicted at a bench trial. A man in Bonita Springs claimed self-defense (and defense of property) when he killed a bear that entered his property back in 2009. He argued that Stand Your Ground also granted him immunity, and the state argued that Stand Your Ground only applies to humans. The judge denied his motion, and he ended up agreeing to plead guilty to killing a protected species and do probation in lieu of a trial. I am not aware of any case law that goes as far to say that Stand Your Ground does not apply to animals, and the self-defense statute reads, “[a] person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another”. Fla. Stat. Sec. 776.012(2)- it does not say anything that would limit it to defending yourself (or others) against a person instead of an animal. (Law enforcement officers kill aggressive pets with some frequency, for instance, which is lawful.)

The hurdle for Mr. Patterson is that the iguana was only three feet, and they are docile vegetarians. They run away from people. If the video shows him provoking the animal, he will be unlikely to garner much sympathy from the jury, despite his injury. People don’t like it when animals die: He may explore a plea deal, but he’s facing a felony for animal cruelty.

Also, it gives me another excuse to post Jimbo:

Uncle “He’s comin’ right for us!” Jimbo

Alan Dershowitz Scores a win in Defamation Suit Against CNN

Famed attorney Alan Dershowitz sued CNN for defamation related to its coverage of his argument in the first Trump impeachment trial. He alleges that CNN misleadingly edited a clip of his statements to give a false impression about his argument… and then propagated that misperception by replaying the clip and repeating it through pundits who based their arguments on the inaccurate summary of his statement. CNN filed a motion to dismiss, arguing that his claim does not rise to the high level needed to show defamation against a public figure, among other things. The judge ruled that the claim does meet that burden, allowing the case to go forward, and scoring a huge win for Dershowitz.

One of the arguments made by CNN is that their coverage of Dershowitz’s arguments should be protected by the fair report privilege. The court agreed that verbatim statements in a public proceeding like an impeachment trial are generally protected when they are repeated verbatim, or are an “accurate or a fair abridgement.” But here, Dershowitz’s claim was that there was a deliberate scheme to defraud by playing the truncated clip, and then playing the pundits’ statements to present the comments in a defamatory matter. He will still have to prove it at trial, but Dershowitz’s allegations are sufficient to defeat the motion to dismiss. The court agreed with Dershowitz that “CNN presented an official proceeding in a misleading manner and the fair report privilege does not apply.”

This is bad for CNN. The court went on to explain that the abridgement of Dershowitz’s statement was inaccurate, in that it omitted a crucial qualification. The court said CNN could argue to a jury that Dershowitz’s statement was ambiguous and that CNN was reasonable in its belief about what Dershowitz argued. That’s a tough sell in light of the qualifying statements that CNN chose to redact from the clip. A failure to defeat a motion to dismiss is usually when media companies see the writing on the wall and look to settle. But beyond the liability for damages here, it’s bad for CNN because the judge essentially made a finding that CNN was presenting false reporting. The court said, “For the fair report privilege to apply, a defendant must have ‘presented a fair and accurate report of the source documents.’ The CNN broadcasts do not meet that standard.” [citation omitted].

Ouch. The “Most Trusted Name in News” just had a federal judge make a finding that it failed to present fair and accurate information.

This could also be bad for other media outlets, particularly those of the cable talk-show type. While it may feel good for them to dance a little over CNN’s misfortune, many other stations have used the format where they play a clip, and then have pundits attack the speaker. This ruling suggests than if they A: play a clip that is edited or redacted so as to be misleading, and B: then repeat it through pundits, even if those commentators couch their punditry as criticism. That’s been a common practice on many media outlets, and CNN has now shown that they can be called on that practice. This is an important ruling for defamation law.

Undercover Sex Sting Operation Ends up Exposing Houston-area Deputies to Harassment and Sexual Assault

In a shocking federal lawsuit, women working for the Harris County, Texas, Constable’s Office detail allegations of wild “Bachelor Party” prostitution stings, where female deputies were assigned to work undercover. The women allege they were then subject to sexual harassment, both physical and verbal, from other deputies, including more senior ranking officers. Their instructions were to act like hookers at a bachelor party, under the theory that sting targets would be more likely to agree to partake in criminal acts. However, the male deputies then proceeded to treat them like sex workers, all while drinking and partying. Real alcohol was provided by the department, and consumed by all, while the assistant chief and others allegedly groped them under the guise of ‘maintaining cover.’

The suit also alleges that during another operation a undercover female deputy was sent to a massage parlor with the instructions to “wait to be sexually assaulted” to give the raid signal. Multiple other allegations, including job retaliation and discovery violations were also reported. The Constable’s Office denies the allegations and claims the suit is “an effort to impugn the good reputation of the hard-working men and women” of his office.

The brave women who filed this lawsuit had the courage to stand in front of cameras in support of their allegations, in spite of threatening phone calls:

Judge Throws man in Jail for Writing Critical Letter After His Case

A judge in Palm Beach County filed contempt charges against Derrick Jenkins, who was sentenced to 30 days in jail, for a harshly worded letter critical of the judge after Jenkins’ case was dismissed. In addition to being critical, Jenkin’s letter was profane, stating ““f—— hypocrit” and he “cant wait til the voters wake up and get rid of these f—— clowns you call judges.” [sic] Judge Howard Coates did not take kindly and initiated contempt proceedings. Another judge was assigned, and found Jenkins’ words a danger to the orderly administration of justice, found Jenkins guilty or contempt of court, and sentenced him to 30 days in jail with 6 months of probation.

If that sounds a problematic, you’re right. The First Amendment guarantees the right to free speech, and its protections are strongest for speech that is critical of the government. There are limits, for instance it wouldn’t be prudent to shout insults and expletives at a judge in open court. However, there was no disruption of any proceedings in this case. In fact, Mr. Jenkins’ underlying case was closed, the court had dismissed his claim against the Sheriff’s Office, so there was no pending matter. The letter would lose its protection if it contained true threats, but claiming an investigation or to have a judge voted out is not a true threat- that’s the Constitutionally preferred way to deal with those officials we disagree with. Judge Warner said, “That’s what you do when you’re unhappy with the judge. You say, ‘we’re going to vote him out of office'” according to the Palm Beach Post.

Appellate arguments were Tuesday, and the statements and questions raised by the judicial panel hearing the appeal don’t appear to take kindly to the arguments in favor of the conviction. The case does not seem to meet any of the exceptions to the protections provided by the first amendment, in spite of the fact the allegations may have been “scandalous and noxious,” in the words of the offended judge. It will likely be several weeks or even a few months until the appellate court rules.

Florida Attorney Convicted of Ramming her Ex-Husband’s House with SUV

Francine Bogumil has been recommended for disbarment for her actions involving her former husband. She is currently serving a sentence of just under a year for leaving her children at home, going to the home of her ex and his new girlfriend, rammed his SUV, driving it into the garage door, then started trashing the car of the new girlfriend. When her ex came out to confront her, she slapped him a couple times, prompting him to slap her back. When law enforcement arrived, she spat on the deputy who tried to break them up. She had texted threats to her former husband before coming over and causing the scene, all of which was in violation of prior restraining orders against her for prior threats.

Francine Bogumil

She had a hearing with a bar referee last week, who recommended her permanent disbarment- she had already been suspended from the practice of law based her her arrests. She spent some time in an in-patient rehab, and will has community control (house arrest), followed by more probation when she gets out of jail. Ms Bogumil had been a member of the bar since 2006. The facts of this case are so crazy, I don’t have much to add. except that she is clearly troubled, and hopefully gets the help she needs to eventually be a mom to her kids.

Body Cams are Coming to the Charlotte County Sheriff’s Department

Crimcourts has long advocated for expanded use of body cams by law enforcement agencies. They have been added at some major departments in Southwest Florida with a great deal of success, including city police for Fort Myers, Cape Coral and Punta Gorda. The Charlotte County Sheriff’s Office has been working on instituting body worn cameras for it’s deputies, and with funding in place, expects to have them in use by the end of the summer. We applaud this effort by Sheriff Prummell and his department.

Not only do body cams provide for accountability for law enforcement, they also provide protection when there is an officer wrongly accused, as we’ve covered before on crimcourts. They can provide more evidence in cases, especially DUI cases that are very subjective. And when officers do violate rights, that can help lead to accountability, as we saw this week in Minneapolis. Another case seems to demonstrate the live risk of an officer where a body cam shows that a suspect who was shot was armed. While undoubtedly a tragedy, body worn cameras will help accurately determine the facts to resolve the investigation. As I’ve said in this space many times before, the pros far outweigh the cons.

We are glad to see CCSO is joining the ranks of camera wearing agencies, and encourage other agencies to do so, as well.

Man Charged with Killing Fort Myers Officer Intends to Claim Insanity

Wisner Desmaret

Wisner Desmaret, the man accused of taking the gun from and killing officer Adam Jobbers-Miller in 2018, has filed a notice of intent to rely on insanity as a defense in the case. This was expected, as he was caught on the scene, as well as on body cams, and Mr. Desmaret has an extensive mental health history. Desmaret had previously been declared incompetent to stand trial on prior offenses. Insanity is different from incompetence, and is an affirmative defense. That means the Defendant concedes the underlying action, and then the burden is on him to prove that he should be excused by the defense. To demonstrate insanity in Florida is difficult to prove: not only must the defense demonstrate the “mental infirmity, disease, or defect”, the Defense must show that the issue was so great that the Defendant did not know what he was doing or that what he was doing was wrong. It’s insufficient to merely claim that one is insane… it has to be proved that the mental issue is very extreme.

Desmaret could be facing the death penalty if he is found guilty.

Governor DeSantis may have to Testify in Naples Election Hacking Case

Anthony Steven Guevara was arrested and charged with two felonies for allegedly hacking into the voter registration system, and changing the address information for Governor Ron DeSantis back in October, shortly before the election. DeSantis found out when he showed up at the poll to vote, and was initially turned away (though he was eventually permitted to vote). Guevara is being prosecuted in Collier County, where he lives.

Anthony Steven Guevara

It was revealed this week that Mr. Guevara’s attorney Mike Carr has sought to subpoena Governor DeSantis to testify. At a pretrial conference this week, he sought to have the judge order the Governor to appear, anticipating that he would not. The judge declined to do in advance, but indicated he may order him to comply with the subpoena at trial. The prosecutor countered that service by certified mail may not be sufficient or verifiable, which may mean that the Governor is not compelled to testify.

The Defense had sought to resolve the case by putting Mr. Guevara into the diversion program, also known as deferred prosecution. Some great reporting by Stefany Matat reveals that the prosecutor told the defense that they were not offering diversion because Governor DeSantis would not agree to it. The Florida Constitution requires that prosecutors take the victim’s wishes into account, so it is not unusual that they would decline to offer diversion where a victim did not consent. The State did make a probation plea offer for 24 months, but that offer was set to expire earlier this week. (The details of the plea negotiations are a little bit of a peek behind the curtains that is not usually available on a criminal case, which ups the interest level, here.) The case has been set for a possible trial the week of April 26, though trials are very restricted right now due to Covid, and could end up being pushed back. It remains to be seen if the Governor will be in attendance, as sought by Guevara’s defense.

What exactly is Sedition?

As the first indictments are coming down from the riot that occurred at the Capitol last week, the allegation of sedition has been referenced several times. Since it’s not a statute that is prosecuted very frequently, I thought it worth considering the legal definition. Federal Law defines “Seditious Conspiracy” under 18 U.S. Code § 2384 as “…two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof…” It’s a felony that carries a fine or a prison sentence up to 20 years. It certainly seems that those rioters who occupied the Capitol building would be subject to prosecution under this statute.

First, it requires that two or more people be conspiring, and there were hundreds working together to breech the Capitol building, so that element is satisfied. While it mentions putting down the government, which is arguable, it also includes other ways to break the law including levying war, oppose the authority of, hinder the execution of law or most notably, “by force to seize, take, or possess any property of the United States”. That certainly seems to be an apt description of the mass of people who breeched the Capitol building and occupied it. The Federal government certainly could make a case that the activity was seditious, especially if more information were to come out about conspiratorial actions in the lead up to the riot.

Some have suggested the President could also be criminally liable for the inflammatory language he used preceding the riot. It would be difficult for him to face criminal liability, though he not need be present to have conspired to commit a crime. Conspiracy charges, such as Seditious Conspiracy, punish not only the direct actors, but those that conspire with them. However, since the President did not directly call for invading the building, it would be difficult to make a case without something more. If things come to light over time that suggests there were actions or conversations with the President and those intending violence at the Capitol, he could face criminal liability, but his bigger concern is probably being held civilly liable.

The first indictments related to the riot have been issued, and sedition charges have not been filed against those individuals, including one who did enter the building. Mark Leffingwell does face a felony charge under the Federal Anti-Riot act for allegedly interfering with an officer during a civil disorder. He faces several other charges, including assault on law enforcement. The other individual is Lonnie Coffman, who was caught later in the day with weapons and a bunch of Molotov cocktails in his vehicle: he also faces felony charges. Dozens more have been arrested, and at least one law enforcement officer died, so many more charges are slated to come down, including homicide for anyone responsible for the officers death.

*UPDATE The FBI indicated this afternoon they are considering an array of charges, including possible sedition charges.