Monthly Archives: June 2012

Fort Myers effects from Supreme Court ruling on Juveniles

A good follow-up from the News-Press regarding the recent Supreme Court ruling abolishing automatic mandatory-life sentences for juveniles.  These case were already being re-litigated following the Graham v. Florida ruling a couple of years ago.  The judge must hold a new sentencing hearing for the defendants mentioned here (from the Cash Feenz killings case).  I agree with David Brener’s take in the article- Washington may still get a life sentence, based on his participation in the case, but that Toye probably should be given a reduction.  She was a relatively minor-participant, was under the duress of her controlling, abusive boyfriend at the time, and was very much a juvenile in her mental state.  No one disagrees that she deserves severe punishment, but does she warrant the same punishment of the older boys who masterminded and carried out the killings?  Some would say yes, but the Supreme Court seems to be sending a message that it may not make sense, depending on circumstances.

George Zimmerman passed a lie detector test

Just in on the Smoking Gun, via Drudge, that George Zimmerman passed a lie detector test the day after he shot Trayvon Martin.  He apparently voluntarily submitted to it without consulting counsel, and did not indicate deception.  This is relevant, because Zimmerman’s fear for his personal safety goes directly to whether or not he was justified in using deadly force.  He also denies confronting Martin.  This is not earth-shattering news, however, because lie detector tests are not generally admissible at trial in Florida (or anywhere that I know of in the U.S.) 

Florida’s Stand Your Ground law and Defense statutes say that people can use deadly force to defend themselves if he reasonable believes it necessary to prevent death or great bodily harm.  They generally aren’t allowed to do so if they are the aggressor, but may still be allowed to use deadly force if the force coming back at him creates imminent danger and there are no means of escape.  The lie detector is relevant to Zimmerman’s fear, but will not be allowed in front of the jury.

Lie detectors are disfavored in court because determining the reliability of witnesses is primarily the function of the jury; and courts dont’ want to take that away from the jury.  This case will be decided by the jury’s estimation of Zimmerman’s testimony, and how reliable they think he is.  (And hopefully not by sympathy.  While my heart goes out to Martin’s family, the sympathy is not legally relevant to Zimmerman’s charges.)

As to the deception by Zimmerman and his wife regarding funds for the bond- that is also relevant, but I’m not sure if there’s enough there for the prosecutors to put in front of the jury.  George Zimmerman took the stand, but did not testify to his finances- his wife did.  That’s why she has been charged with perjury, but he has not.

Denial ain’t a river in Egypt, but Sandusky is a river in Ohio

Yahoo! news reports (via AP) that Sandusky continues to profess his innocence.  That’s not going to win him any public sympathy- or from the courts.  Not that confessing at this point would do anything to stave off the mandatory sentences that will certainly keep him locked up for life.

The Yahoo! (which is way more fun than saying ‘AP’) article also has an interview with another one of the jurors.  As a practicing attorney, I’m always interested to hear any insights to the jury deliberations.  Nothing really revelatory here- sounds like a thoughtful jury who parsed a lot of information.  The fact that a couple of counts were not-guilty suggests to me that they really did go through the case victim by victim, count by count.  Good for them- that’s how the system is supposed to work, for the victims as well as the defendants.

Fort Myers crime spree suspect arrested

The more I hear about the guy the have charged with the kidnap/rape/murder spree recently in Lee County/Fort Myers/Cape Coral- the more it sounds like an unsub from Criminal Minds: http://www.news-press.com/article/20120625/CRIME/120625010

Supreme Court rules against automatic mandatory life sentences for juveniles

The Supreme Court issued several important rulings today, but the one that most impacts criminal law is the decision that bars mandatory life without parole for minors.  This decision is not a surprise, as it’s in line with other recent decisions that mandate that those who commit offenses while under 18 should be treated differently.  It extends the Graham v. Florida ruling, which restricts automatic life sentences for non-homicides to include homicides.

2 Key Points:

  1. This decision doesn’t mean that minors can’t be sentenced to life without parole.  (I say minors, because sometimes minors can be treated as juveniles, but charged as adults, regardless of the infirmities of age.)  It instead limits statutes from requiring automatic life sentences for minors.  That is, it is unconstitutional for states to require that minors be sentenced to life without parole. It appears to leave open the possibility that states may still allow a judge to sentence them to life after review upon sentence, contrary to many headlines that I have already seen.
  2. This ruling will have the most effect in Florida, which has already had the greatest upheaval since the Graham decision I mentioned above.  That’s because Florida leads the nation in juveniles sentenced to life for non-homicides.  This FSU study is a couple of years old, but the numbers have only just started to correct since Graham.  Florida’s numbers are high for several reasons.  One reason is the high number of minimum/mandatory sentences in Florida, and due to the fact that it extends to felony murder cases.  For instance, the 16-year-old in a car when a drug deal goes bad, or the 14-year-old whose big brother makes him a lookout for a burglary could be facing mandatory life without parole if someone is killed during the commission, even if it’s one of the criminals.  Another reason is that judges in Florida are not given a cap or high-end sentencing range.  This means a hanging judge can max out anyone who doesn’t take a plea bargain.  Most don’t, but across the state, there are some that impose a ‘trial penalty’- a harsher sentence for exercising the constitutional right to trial. 

Florida is already in the process of reviewing mandatory sentences for minors.  I am generally a proponent of having some outlet so that a judge can make a review and determine what sentence is appropriate.  Mandatories that allow for no discretion inherently run the risk of leading to unjust results.

Former attorney Balliro transported to Fort Myers

Former Fort Myers and South Florida attorney Sebastian Balliro has been transported to the Lee County Jail, according to www.sherifflee.org.  In a bit of a scoop for my new blog, we appear to be the first that’s reporting his transfer.  He had already been arrested on the Fort Myers charges, and bringing him to Lee County was necessary to give him a first appearance, set bond, and get the wheels in motion on his case.  He’s charged in Lee County with 3 Schemes to Defraud, 4 First Degree Grand Thefts, 2 counts of ID Theft, and a simple Grand Theft.  All charges are felonies, and all but the grand theft are 1st degree felonies, due to the amount alleged to have been taken.  He’s facing up to 30 years on each of the 1st degree felonies, and another 5 on the grand theft, if convicted separately.  However, the schemes may encompass the grand theft charges.  Bond is $30K each on the 1st degrees, plus 1,500 for the third according to LCSO, for $271,500 total, by my rough math.

Arraignment is set for July 2, though we already know what charges the state has picked up.  He has a case management date set for the end of July in Naples on his Collier County case.  The transport order specifies that he is to be here for 1st appearance and arraignment, so Collier may come collect him before his next court date there.  I’ll be trying to keep track of it all, here.

Sandusky guilty

Jerry Sandusky was found guilty of all but three of the counts that went to the jury – 45 counts in total that will certainly lead to incarceration for the rest of his life.  The jury found him not guilty of 3 counts, and there were four more counts at the beginning of the trial- 3 were dismissed by the court and one abandoned by the State.  His attorney admitted he’d be shocked if he were acquitted, especially in light of having so many charges.  He was quite correct- and I’d add that with so many accusers, the chances that the accusations could be rebutted, or could be untrue, was miniscule.  Lawyerin’ Joe Amendola, in spite of his flaws, didn’t have a strong case to work with.  I’m reminded of the old Dana Carvey bit about O.J.- making light of how great a conspiracy it would have had to have been for everything to be untrue.

So the question is appeal… News has hit that the Defense team asked off the case at the last-minute claiming unpreparedness, clearly establishing one of the issues that will be raised on appeal.  I remarked months ago that it looked like the court was rushing the case to trial.  It was basically seven months from the arrest to trial, which is rapid for a felony case, and more so when the case is so complicated and involves so many accusers.  The Defense request for a continuance was not the first time they had indicated they wouldn’t be ready for this month’s trial date.  And according to the AP article linked above, there were documents received late from the prosecutor that bolster the Defense’s difficulty in preparing their case. 

This is a major concern- while there is an interest in seeking justice as swiftly as possible, the need to move a case along cannot trump the right of the accused to be prepared and to be represented by competent counsel.  Unprepared counsel is not competent counsel.  It will be interesting to see how the appeal of this issues plays out.

A secondary, and perhaps legally more interesting, issue is the use of hearsay testimony during the trial.  The State presented statements from a janitor who was unavailable to testify due to dementia.  The evidence was presented as hearsay through some other janitors to whom he relayed it.  The state did present some corroborating evidence, but not to all the graphic details.  While the most apparent concern is that the statements are hearsay, I’m more concerned about the violation of the Constitution’s confrontation clause.

The Constitution’s Bill of Rights guarantees that those accused of a crime have a right to confront those who make the accusations.  Normally, that means the accuser has to take the stand, make the accusation in front of the Defendant, and the Defendant gets a chance to cross-examine the witness.  The most frequent exception is if the Defendant had a previous opportunity to confront the witness, perhaps at a deposition, or if the statement was a dying declaration.  The purpose is to allow the Defendant a chance to attack the reliability of the statement.  A hearsay statement is substantially more difficult to challenge, and generally shouldn’t be relied upon to possibly convict someone of a criminal charge, big or small.

This can be a challenge for prosecutors on cases where accusers are not available to take the stand, and often there is only one accuser.  Some states passed laws allowing exceptions to the confrontation clause- though many of these were struck down by the Supreme Court in Crawford v. Washington. The standard set forth in that case allows such hearsay testimony to come in if it’s not “testimonial”.  I didn’t get to see the argument on the issue in the Sandusky case, but I suspect the court found that the statement from one janitor to another did not fall under the testimonial umbrella.  Thus the court may have followed the law, though the law may not track the Constitution.

The Sixth Amendment provides, In all criminal prosecutions, the accused shall enjoy the right… to be confronted with the witnesses against him.”  It doesn’t list exceptions.  It doesn’t say, unless the non-testifying witness was a janitor talking amongst his janitor buddies.  It doesn’t say it doesn’t apply to 911 calls or in emergent situations.  It’s very easy to dismiss these concerns when the testimony is used against a monster like Sandusky.  It isn’t that easy if you think how you’d feel if the state was trying to convict you over chit-chat in the break room. 

There should be some interesting litigation on the Sandusky appeal.  I will try to keep up on it on CrimCourts!