Category Archives: 14th Amendment – Due Process

Florida will soon have a Death Penalty Procedure, Once Again

death chamber

Florida’s “Death Chamber”

The Florida Legislature fast-tracked a fix-it bill for the death penalty, which was found to use an unconstitutional procedure because it did not require a unanimous jury finding for a recommendation of the death sentence. That law was an imperfect fix for the previous procedure, and the Florida Supreme Court subsequently made it clear that a unanimous recommendation would be required to meet constitutional muster. Yesterday the Florida Senate approved a new bill that does require unanimity, and today the  Florida House voted for it as well. The bill will head to the Governor’s desk, and he is expected to sign it in short order, effectively re-instituting the death penalty in Florida.

Those sentences to death after 2002 will have to have a new sentencing hearing if the State still wishes to seek the death penalty.

Michael Lambrix

Michael Lambrix

For those death row inmates whose cases were finalized before 2002, it appears the death sentences will not have to be revisited, pursuant to a Florida Supreme Court Decision that came out yesterday. The Court ruled that the legal issue is procedural, which means that it is not retroactive from prior to 2002. The court found that the state can move forward wit the execution of Michael Lambrix, who killed 2 people in Glades County some 30-plus years ago. He will surely seek a federal appeal before his execution goes forward.

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Florida’s New Death Penalty Declared Unconstitutional

Florida’s Death Penalty laws are once again in disarray.

SCOTUSbuilding_1st_Street_SE

The Supreme Court

Last year, the Supreme Court struck down the procedure Florida was using to determine when the death penalty should be imposed, in the Hurst case. That meant that there was functionally no death penalty in the state of Florida. The legislature moved quickly to amend the law to establish a new procedure to prosecute the death penalty in Florida, and a new version was signed into law in March. Now, all that work is out the window…

Judge Milton Hirsch, a circuit judge in Miami-Dade, has ruled that the new procedure is also unconstitutionally inadequate. The Florida procedure does not require a unanimous jury verdict before the death penalty can be imposed. Florida and Alabama are the only states that did not require unanimity, and that specific issue was not discussed by the Supreme Court in the Hurst case. Ultimately, the issue is likely to be appealed to the Florida Supreme court, and potentially the U.S. Supreme Court again, but Judge Hirsch’s opinion is the first to address the issue since the new procedure was passed.

Hirsch was critical of the law, finding that the changes were not enough. He wrote, “Arithmetically the difference between twelve and ten is slight, but the question before me is not a question of arithmetic. It is a question of constitutional law. It is a question of justice.”

Timothy Hurst

Timothy Hurst, currently on Death Row

Meanwhile, the other issue up in the air is whether the Hurst decision is retroactive. That is, are all of the Floridians on death row entitled to new sentencing hearings?- 390 of them are currently on death row. While they would still be subject to a new death sentence, a ruling finding that Hurst is retroactive would likely spare a great number of inmates that the state would not wish to retry their sentencing hearings.

While it seems to be a no-brainer that if the procedure used to impose death was unconstitutional that the sentences could not stand, the courts have often held that these types of rulings are procedural, and do not apply retroactively. It will be interesting to see what the Florida Supreme Court does on the issue. Until then, Florida executions will have to be on hold. The Florida Supreme Court recently heard arguments regarding whether Hurst will mandate that he, and many other similarly situated cases will be reduced to life without parole.

You have a right to an Attorney if you can’t afford one, but you still have to pay

John Oliver takes on the overworked, underpaid challenges of the public defenders in our criminal justice system. I know some very good attorneys who are public defenders… or were until they found a job that paid a living wage. Fittingly, several of the examples he uses for this article are from Florida… most disturbing is the guy, on Hospice, who gets arrested for not having a valid driver’s license, and spends too months in jail… and then they spend thousands of dollars trying to recoup the fees and assessments. It’s symptomatic of bigger problems with the system.

Cash Feenz Killers Resentenced to Life in Prison

Ashley Toye and Roderick Washington, who were under 18 at the time they took part in the torture and murder of Alexis and Jeffrey Sosa, were back in court yesterday for resentencing. The Supreme court ruled in 2012 in Miller v. Alabama, that mandatory life sentences for juveniles were not proper under the Constitution. Florida passed a new law providing for new sentences for such criminals, and Toye and Washington are among the first to be sentenced under the new law. The judge could have sentenced them to less time, but declined to do so based on the facts of the case that included false imprisonment and torture before the victims were shot. They will have a chance to have their sentences reviewed after 25 years, another provision of the new law that has yet to be tested.

via News-press.com

Nate Allen Exonerated : Another Failed Eyewitness Identification : UPDATE

Local NFL player Nate Allen was detained for several hours last week, and it was falsely alleged that he had improperly exposed himself driving down US 41. Fortunately, the Fort Myers Police Department figured out that they had a problem, and released Allen before filing charges. Yesterday the State Attorney’s office announced that their review of the evidence shows unequivocally that Mr. Allen did nothing wrong. But that wasn’t until long after he had been held nearly 5 hours, and the press had picked up the story and his image tarnished. Apparently, the girl or girls who made the allegation described a similar vehicle to Allen’s. He says that the initial description was of a middle-aged man with long curly hair, which is not Mr. Allen. How does this happen? How does 27-year-old, short-haired Mr. Allen get misidentified as a middle-aged, long haired man? The most likely culprit is an unduly suggestive identification by law enforcement.

Philadelphia Eagle Nate Allen

Mr. Allen gave an extensive interview with the Fort Myers New-Press, which they have helpfully posted online, in full. We don’t have the police reports yet, but it appears from Mr. Allen’s account, that while he was detained on the side of the road, the police brought the accuser by in the back of a patrol vehicle, and he was apparently identified. The mis-identification almost certainly stemmed from this improper identification procedure by the Fort Myers Police Department. Such a procedure is wildly suggestive, and is disfavored for law enforcement. Any time a one-person show up is utilized for identification purposes, the procedure is inherently suggestive and carries the risk of tainting any identification. For this reason, one-person show ups are disfavored by Florida courts. The circumstances around this show up were particularly suggestive, as he was being held in custody, next to his truck, at the time it appears he was ID’d. Time and again the courts have discouraged law enforcement from doing this type of identification, but here we are, falsely accusing a local hero. It’s well known that eyewitness testimony is among the most unreliable to rely upon in court. Eyewitnesses are even less reliable when law enforcement utilizes inherently suggestive procedures to obtain their testimony or identifications. Clearly, the courts need to continue to discourage these improper techniques, to throw out testimony that is improperly obtained, and our law enforcement must better train its officers. Thank goodness they did their due diligence, and Mr. Allen was exonerated by phone records and surveillance video before they formally pressed charges. The fix is simple, identification needs to be done via lineup, preferably double-blind. This can be easily accomplished with modern technology and a photo lineup (called a six-pack). I am encouraged that FMPD has indicated they are going to do a review of their procedures, so hopefully the cops don’t continue to contribute to false identifications.

UPDATE: Allen and his attorney Sawyer Smith held a press conference today, urging police review of the errors that lead to his improper detention.

UPDATE 2: The News-Press article above confirms the unduly suggestive ID procedure by FMPD that I anticipated in my post. Also, the News-Press has updated their coverage with video from the press conference.

LCSO Ran Another Crappy Sex Sting Operation

  • LCSO ran an internet sex-offender undercover sting operation
  • They call it Operation Safe Summer
  • The last one had a lot of bad arrests
  • Details are scarce so far, but it looks like they arrested more kids than dangerous predators this time around

Ironically, the same day I ran an article decrying sting operations which tend to entrap people who are not looking to commit a crime, the Lee County Sheriff’s Office does a press conference to brag about their undercover sting operation. We can only hope that the investigators working this operation did a better job in their investigation than the last time. Details have not been released yet, other than the names and personal details of the accused, but the last time around, several of the cases had to be dropped, others were acquitted, and one case was thrown out by a judge due to the outrageous behavior on the part of law enforcement in entrapping one of the suspects. Yes, several creepy, bad people may be among those charged, but there are a lot of people who get stung in these operations who are not criminals. Those stories don’t make news, because the people want to put it behind them.

As I stated this morning, one of the tenets of doing undercover sting operations is that the sting should be targeted specifically to known, ongoing criminal activity. These operations, as they are generally run, do the opposite. The undercover agents go fishing, and try to cast as wide a net as possible to ensnare more people and get a better headline after the press conference. Instead of catching actual, dangerous predators, they get a bunch of bored kids who aren’t looking to do anything illegal until the cops entice them to do it.

The last time around, Operation Spider Web, arrested a kid who never agreed to do anything with the cops: he thought he was coming over to hang out with another kid. Other times, the cops didn’t even claim to be a minor until their target was already headed to the house. For almost all of them, the cops initiated contact with the targets, which is absolutely contrary to the way a proper sting should be run. That’s why several people took their cases to trial, and several of them were acquitted, but not before their names had been dragged through the mud. And Spider Web, and probably Operation Safe Summer, follow the set-up textbook operating manual.

If you wanted to draw up a textbook entrapment situation, Operation Spider Web, and many of the similar internet sting operations around the state would follow the blueprint for improper law enforcement conduct. Instead of targeting known suspects, or suspicious chatrooms, or something with ANY indication of ongoing criminal activity, these operations randomly target internet users. Instead of waiting to be contacted, or putting out bait on an online service, agents initiate contact with unsuspecting targets. Instead of letting the suspects lead the discussion, agents frequently bring it around to sexual connotations, at times pushing it, and enticing the targets with sexual gratifications. They deliberately try to walk the line so they don’t get called out on it in court, and it still comes back on them time and again. The First District Appellate court decried their techniques just last fall in the widely noted Gennette case, but here we are again. See Gennette v. State, 124 So.3d 373 (Fla. 1st DCA 2013). Gennette was the authority that caused a local judge to throw out one of the arrests last time around, based on the behavior of law enforcement.

Operation Spider Web was overseen by FDLE Special Agent Charles McMullen. He’s basically a government hired gun, who travels around the state setting up these sting operations. He doesn’t care about targeting actual predators: trying to get as many people as possible arrested. The more arrests me makes, the more his job is justified… and the less resources go toward actual dangerous predators. He signed off on most of the arrests last time, which means he was personally responsible for at a good half-dozen bad arrests last time he came to town. Bad arrests hurt innocent people, and the fact that most of the arrestees this time around are 20-somethings suggest that these cases are more set-up than good arrest. Law Enforcement got their big press conference, and will probably lead the evening news, but they probably didn’t do much to make our community safer. Especially not if these are more McMullen specials…

Those charged with these offenses should contact me or another experienced defense attorney to fight. Not only are they facing prison time, they are facing lifelong sex-offender designations. And the more energy law enforcement has to expend fighting these cases, the more likely they are to finally realize the error of their ways.

Federal Judges Are Rejecting ATF Sting Operations as Entrapment

  • These stings entice would-be robbers into fake home invasions
  • A second federal judge has thrown out cases based on this law enforcement behavior

A Federal District Judge in Los Angeles threw out the cases against three men who had been indicted for robbery, ruling that the government conduct in setting them up was outrageous and amounted to unconstitutional entrapment. The entrapment doctrine has been around for a long time, but the courts are generally reluctant to invalidate cases based on it. The law gives government agents a great deal of leeway in their investigations, but they can cross the line when they entice someone to commit a crime who would not have done so, otherwise. Apparently, there is growing use by ATF of these drug-house robbery set-ups, where agents promise vast payouts to entice suspects to agree to rob fictitious drug houses.

The biggest problem with these stings is that often, the suspects are not suspects of anything until the agents create the idea of the crime. In doing so, they turn people have little or no criminal history, into major felons. Agents create the crime to pump up their arrest and convictions numbers, while not doing anything to stop actual crime. It’s lazy law enforcement… instead of looking for actual robbers and drug dealers, they find suckers and talk them into conspiring to commit a fake crime, and then serve up an easy arrest.

This ruling is the second in a couple of months to reject the tactic. Both cases are being appealed by the government. One might wonder why they are spending the money to fight for the right to prosecute fake crime, instead of focusing on getting the real criminals off the street. At the very least, we can hope that these rulings gets the government agencies to think twice about the tactics they use to make their busts. It’s a basic tenet of entrapment law that the sting operations should target ongoing criminal activity, and has repeatedly been ruled upon by the Supreme Court, going back to the Sorrells opinion in 1932.

The government action can violate the due process tenets of the Constitution where the criminal conduct was “the product of the creative activity of law-enforcement officials.” Sherman v. United States, 356 U.S. 369, 372 (1958). “In their zeal to enforce the law, however, Government agents may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute.” Jacobson v. U.S., 503 U.S. 540 (1992). Instead of fighting to be allowed to create crime, the government should be fighting the actual crime.

http://www.usatoday.com/story/news/nation/2014/05/29/atf-stash-house-sting-backlash/9719403/