Attorney Spencer Cordell Will Be on Ask a Lawyer Tomorrow Morning

I’ll be on B 103.9 with Big Mama and the Wild Bunch for their ask a lawyer segment at about 9:30 a.m. Wednesday morning. Tune in and check it out!

George Zimmerman Formally Waives Pretrial Immunity Hearing

Zimmerman with Attorney Mark O’Mara

We’ve already covered reports that this was the plan by the defense team, and why Crimcourts does not disagree with this strategic decision. Today’s hearing formalized that course of action with the court. George Zimmerman’s attorney Mark O’Mara suggested that they still plan to argue immunity at trial, which is not prohibited by the Stand Your Ground law, but that they are eager to have the jury rule on the facts. That sounds nice, but I think the decision more reflects the legal challenges of winning the motion and is really a strategic choice. It appears the case is still on track for a June 10 trial date.

Lehigh Acres Man Charged with Pointing Gun at Reporters

Jeremiah Mayo

Two NBC staffers were following up on a burglary story in Lehigh on Wednesday, when a man pulled up, got out of a car, and pulled a gun on them. The man was Jeremiah Mayo. the brother of the burglary victims. He told cops that he had a couple of friends killed recently, and says he was spooked by the burglary the night before. Mayo and his sister claim that while he had the gun out, he didn’t point it at the reporters. Both reporters say he pointed the gun at them until they drove off.

This is going to be a fascinating case. Mayo does not have any local history of violence or felony charges, and he was presumably in lawful possession of the firearm. Due to the break in and friends who had been killed, the fear that the strange vehicle in his driveway could have been someone wanting to hurt him may have been reasonable. Since he didn’t fire the gun, he did not rise to the level of using deadly force. Plus there is a fact question about whether he pointed the gun at the vehicle. His argument will be that he had a reasonable fear of harm, and was justified in using minimal force to scare off the unknown subjects. On the other hand, since the reporters were not making any threats, he may not have been justified.

NBC Reporter Meaghan Smith bio pic

Just because someone is on your property is not legal justification to pull a gun on them. Reporter Meaghan Smith and her cameraman were certainly afraid for their lives and had no ill will prior to being threatened. There has to be some actual threat so as to give someone a reasonable fear of harm. It requires more than having a car parked in your driveway. Mayo may be able to demonstrate that fear due to the crimes that had recently affected him.

I urge everyone that if there is a reason to be afraid, the last thing they should do is confront someone. Mayo may ultimately be found to be justified in his actions, but right now he is out on a $30,000 bail and facing 2 second degree felonies. He would be far better off if he had just kept driving and called the Sheriff’s office.

New Suspect Arrested in Ricin Case

James Dutschke

We covered the erroneous arrest and subsequent release of the man erroneously charged with sending the Ricin letters to President Obama and others: an Elvis impersonator named Paul Kevin Curtis. Curtis has been exonerated and all charges dropped. The arrest of new suspect James Dutschke, who was an acquaintance with some history of disagreement, suggests that he may have framed Curtis by attributing the letters to him. But let’s not jump to conclusions, the government has already made one major blunder in this case by arresting the wrong guy without any direct evidence.

https://crimcourts.wordpress.com/2013/04/23/charges-dropped-against-ricin-suspect-elvis-impersonator/

The News-Press Looks at Shortcomings in Florida’s Mental Health Assistance

The News-Press article is well done, and worth a read. Dr. Frederick Schaerf, who is extremely well thought of in the legal community in Southwest Florida gets to the heart of the issue: even if there are improvements in the Baker Act (involuntary commitment), that treatment doesn’t necessarily follow after the evaluation. Baker Acts save lives of people who are in immediate danger of harming themselves or others, but the system does not adequately follow through for the continuing needs of the mentally ill. Many times these people fall through the crack, and frequently end up in the criminal system. Check out the article on the News-Press:

http://www.news-press.com/article/20130428/NEWS0120/304280033/Baker-Act-fixes-Not-enough-not-soon-enough-

The City of Cape Coral is Trying to Ban Elmo

Elmo at Auto Sound

They’re not trying to ban Elmo completely, but they are considering a ban on signage like the larger-than-life Elmo robot that stands in front of Auto Sound Cape Coral. City leaders are examining the signage ordinance, and may make amendments that would prohibit such things as moving mannequins like Elmo, and other signage such as people holding, flipping, and dancing with signs. It’s comforting that this is the most serious issue facing the city right now. According to the News-Press, the City is not anti-Elmo. Also, a quick drive around will make the abundance of signs immediately noticeable…

Cape Signs

http://www.news-press.com/apps/pbcs.dll/article?AID=2013304250020

UPDATE: Here’s  Auto Sound with Elmo and the 2 female mannequins. They are all mechanized and move their signs around!

Auto Sound Cape Coral

 

Auto Sound Cape Coral

Amanda Knox to Stand Trial for Murder Again

The Italian Supreme Court, which recently overturned Ms. Knox’s acquittal, has ruled today that she must once again stand trial for the murder of her former roommate. Her boyfriend at the time, Raffaelle Sollecito will also be tried again. The confessed killer, Rudy Guede, is still serving his sentence for the killings after being convicted separately. Prosecutors still believe Ms. Knox and her former boyfriend were involved in the killings, despite the fact that her statement is wholly inconsistent with Mr. Guede’s killing of Ms. Kercher.

Amanda Knox

CBS recently aired the new documentary, “Central Park Five”, about five young men/boys were interrogated under intimidating circumstances, and ultimately convicted for a horrible crime in spite of the fact the stories they gave were inconsistent and frequently incorrect on details. The tainted confessions doomed their case, in spite of the fact that there was a serial rapist who’s MO matched the crime. The way the statements were extracted  and the way the inconsistencies of Ms. Knox’s case mimic the incorrect statements of the Central Park Five made me think of the Knox case as I was watching it. Definitely check it out for an examination of how false confessions can happen, and how they can over power the surrounding evidence of a case.

Here’s our previous coverage of Knox’s case, the ‘Foxy Knoxy’ case as it was dubbed by the tabloids: https://crimcourts.wordpress.com/category/criminal-law/amanda-knox/

Did Authorities Violate Alleged Boston Bomber’s Rights by Not Reading Miranda Rights

When the second Boston Marathon bombing suspect, Dzhokar Tsarnev, was being sought, debate was roiling over whether or not authorities should read him his Miranda Warnings prior to questioning him, and whether he should be classified as an enemy combatant. The second argument did not go very far, as Mr. Tsarnev is a U.S. citizen, and is afforded the same rights as all citizens under the constitution, including due process and the right to an attorney. The more heated debate centered on whether he should be read Miranda.

The Justice Department stated their intention to not advise Mr. Tsarnev of his Miranda rights, saying that their questioning would be allowed under the public safety exception. All indications are that Mr. Tsarnev was not advised at the initiation of his interrogation, and that he has been communicating with law enforcement. The failure to read Miranda does not mean that authorities could not question him, but typically any statements obtained from such a custodial interrogation could not be used against him in court. Such statements were not admissible under the Miranda ruling by the Supreme Court, until they carved out the public safety exception in a case known as New York v. Quarles. The Quarles decision in 1984 drew a very narrow exception for questions in the interest of public safety. In that case, Mr. Quarles had been detained after ditching a firearm, and the officer asked a few questions about the whereabouts of the gun prior to reading Mr. Quarles his Miranda. The court found that under those facts, an exception was proper, and the state could use those statements in the prosecution of the case against him.

The FBI latched onto the idea of the public safety exception, and spent some time reviewing and planning when they felt they might be able to use it to avoid the reading of Miranda. They produced an internal memo in 2010 outlining which circumstances they could cite the exception to avoid the Miranda reading. The New York Times obtained a copy of that memo and published it in 2011. This presents several logistical problems, as well as a concern that the FBI has made a concerted effort to deny detainees their Constitutional rights.

The public safety exception, as outlined by Quarles, is limited to a very narrow set of facts and circumstances. Justice Rehnquist specifically discussed  that there was an element of spontaneity involved when suspects are arrested in the field as Mr. Quarles was. That does not appear to fit the facts of Mr. Tsarnev’s situation. Rehnquist contrasts those questions in the field to the inherently coercive nature of interrogation in the confines of a police station house. There is a danger for the government that there was a coercive nature to Mr. Tsarnev’s custodial interrogation in the hospital, where he was undoubtedly tied down and confronted by multiple trained interrogators who had time to formulate their questions. The FBI memo attempts to broaden the scope of the public safety exception, but such internal memos carry no force of law. It’s possible that interrogators’ reliance on the FBI’s interpretation of the exception could taint Tsarnev’s statement; and a judge might refuse to admit those statements. This may not be a major issue in Tsarnev’s case, as the government may feel they have enough evidence against him without needing to rely on his statements. They certainly will be challenged by the Defense if the case ends up going to trial, as the facts of Mr. Tsarnev’s interrogation do not fit the facts of Quarles and its narrow exception.

It is possible the court could further expand the public safety exception. The Quarles language is very limited and fact specific, but it is easy to imagine situations where such an exception would be appropriate. Imagine a scenario where terrorists are planning to detonate a nuclear weapon in the United States, and are on the verge of doing so (a Jack Bauer situation). What if agents were able to capture a conspirator who had information about how to stop the imminent attack: would we want them to advise the terrorist he didn’t have to talk to them? In such a hypothetical, the public interest would be better served by allowing the interrogation to proceed, unadvised. The public interest would favor the greater good of seeking information to protect more people from harm, and could still be a limited enough public safety exception to warrant abuse from overly broad interrogations. I recognize the slippery-slope concern of further abrogating Miranda, but it might be appropriate under limited factual circumstances. As it is, the government has rarely attempted to claim the public safety exception, so there is not a great body of law on the subject. It will be interesting to see how it develops.

http://www.slate.com/articles/news_and_politics/jurisprudence/2013/04/dzhokhar_tsarnaev_and_miranda_rights_the_public_safety_exception_and_terrorism.html

Charges Dropped Against Ricin Suspect – Elvis Impersonator

Paul Kevin Curtis was arrested for allegedly send letters laced with the poison Ricin to President Obama, Senator Wicker, and a judge. Federal prosecutors dropped those charges for a lack of evidence, and are apparently pursuing other leads. The judge has formally entered a dismissal of the charges against him.

It appears that authorities simply jumped the gun on Mr. Curtis’ arrest, with a scarcity of evidence actually linking him to the letters. This may be a frame-up, as the letters claimed to be sent from “KC”, which is how people know Mr. Curtis. Additionally, the letters contained language that he has been known to use, including similarity to posts on Facebook. They were very clearly trying to implicate him, and were successful in getting him arrested.

A review of the complaint and supporting affidavit reveal an implication of Mr. Curtis, but simply do not indicate any evidence demonstrating that he sent the letters. Mere implication should not be enough for charges to be brought, and its unfortunate that Mr. Curtis has been named in formal documents as the culprit. Apparently authorities have searched someone else’s property, but have not yet named that person a suspect, so I’m not identifying him at this time. After this grave error, I think the authorities will do their due diligence before an arrest is made.

Killers Sentenced for the Murder of Mary Ann Zarb

 

Shane Simpkins

Shane Simpkins, who was convicted at trial a few weeks ago for the murder of Estero grandmother Mary Ann Zarb, was sentenced to life in prison yesterday. His co-defendant, Christopher Neuberger was also sentenced . However, Neuberger’s plea was pursuant to a negotiated deal with the state. He was sentenced to 10 years in prison, followed by ten years probation, in part thanks to his agreeing to testify against Simpkins. Without his testimony, it would have been difficult for the prosecutors to tie Simpkins to the actual killing.

Christopher Neuberger

Previous Crimcourts coverage of Simpkins’ trial: https://crimcourts.wordpress.com/?s=simpkins