Category Archives: 5th Amendment – Miranda Rights

Diana Alvarez Suspect Sentenced to 40 Years in Prison, Faces More Charges

diana alvarez

Diana Alvarez, still missing

The Lee County Sheriff’s Office has filed additional charges against Jorge Guerrero, but not yet for her disappearance. LCSO has filed additional sexual felony offenses against Mr. Guerrero, which are based on the charges for child pornography for which he was convicted in Federal court. Undersheriff Carmine Marceno spoke at a press conference this afternoon, and stated that investigators feel confident that Guerrero was involved in her disappearance, but they are going to continue to investigate. There are two very good reasons for them not to rush kidnapping or murder charges: First, Guerrero was tried and convicted in Federal Court, and has now been sentenced to 40 years in prison. He’s not going anywhere, there’s no need to rush. Second, once he is arrested, the clock starts running for his speedy trial right, and LCSO does not want to give him an out. LCSO indicates they are still investigating the disappearance of Diana Alvarez, and Marceno says he expects more charges to be filed.

jorge guerrero

Jorge Guerrero

The search still continues for Diana Alvarez, but as time goes, it is increasingly unlikely that she will be safely returned. At this point, it is not clear if kidnapping or murder charges are appropriate, and hope remains. Meanwhile, the investigation continues. Marceno indicated the LCSO Detectives are going to speak to Guerrero this afternoon, potentially finding a loophole in that since his Federal case is closed, that he does not currently have an attorney appointed. Whether or not he says anything actionable, remains to be seen.

 

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An Article About Remedies When You Don’t Answer the Cops and They Retaliate

It’s quite clear that you do not have an obligation to answer an officer’s questions, especially if it could tend to incriminate you. But what happens when they use force when you don’t? The answer is not clear, but this article from the Volokh Conspiracy blog takes a great in-depth look at the different rights bestowed by the fifth amendment:

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/04/19/can-the-police-retaliate-against-a-citizen-for-refusing-to-answer-police-questions/?utm_term=.662771eb0e60&wpisrc=nl_most&wpmm=1

Florida Supreme Court Rules in Favor of Right to Remain Silent

I was actually kind of surprised they had to litigate this issue, what with the right to remain silent being a Constitutionally protected right. Last week, the Florida Supreme Court unanimously agreed with the 4th Circuit Court of Appeal that it is  improper for the state to comment on the the pre-Miranda silence of a Defendant who does not take the stand. Basically, if someone exercises their right to remain silent… it cannot be used against them. I suspect the Florida Supreme Court was suprised the issue needed to be litigated, the 4th DCA opinion that they upheld was just issued on February 18. The appellate court certified the question as one of great public importance, but that is still an impressive turnaround at the highest court in the state.

donna horwitz

Donna Horwitz, via FL DOC

The Court sent back the conviction of Donna Horwitz, convicted of first degree murder in the death of her husband. When police responded to the shooting, they asked Ms. Horwitz several questions, and she stood mute. The prosecutor successfully argued at trial that her silence was indicative of a consciousness of guilt, and she was convicted and sentenced to life in prison. The Court ruled, consistent with longstanding precedent around the country, that his is unfair comment on the right to remain silent. It would essentially force a defendant to testify to rebut the assertion, which is improper.

Further, the court observed that the evidence of silence would not be relevant and is inadmissible under basic rules of evidence. While silence potentially could indicate consciousness of guilt, the meaning is ambiguous. It could be shock, or a concern that officers would not believe the story, or many other things. Due to the ambiguity, it is not relevant to the elements of the crime, and would also be inadmissible for this reason.

You have a right to remain silent… use it. The State cannot use it against you if you do.

The Opinion

Maine Conviction Upheld for Man who was Denied Request for an Attorney

Joshua Nisbet

Joshua Nisbet

Ultimately, the courts found that Joshua Nisbet waived his right to have an attorney, but the case is unusual in that Nisbet wanted an attorney to represent him. The courts ruled that he waived his right to have an attorney, due to the actions he took over the course of the case that prevented several lawyers from staying on his case. He reportedly disagreed over strategy, asked them to engage in unethical conduct, and ultimately threatened to shoot one attorney in the eye with a BB gun. The courts found that he had forfeited the right to have an attorney based on his actions.

Now, it is not unusual for people to waive their right to an attorney, and represent themselves. That’s also within their rights, though it is rarely a good idea. However, it’s extremely unusual for counsel to be denied when desired by a defendant. I’ve never heard of such a situation happening in Florida.

Legally, the concept is sound, but troubling. Your rights are personal to you, and you can waive them. You can waive a jury trial, you can waive your right to remain silent, and you can waive your right to demand a warrant. Not all of these rights require a knowledgeable waiver: for instance, when a cop reads someone their Miranda rights, but that person chooses to blurt out incriminating things… those things can often still be used against a person, even if they didn’t mean to. It’s troubling that a man who wanted an attorney was not permitted to get one… but the extreme circumstances of this case might be the rare case where it was appropriate.

Also, never threaten to shoot your lawyer. That’s just bad form!

The Michael Dunn Trial Cost $99,000

Michael Dunn mug shot

Michael Dunn mug shot

The city of Jacksonville released financial numbers indicating the Dunn trial cost taxpayers $99,158.26. These numbers don’t include a lot of important costs, such as the expenses incurred by the State Attorney to prosecute the case. The majority of these costs were for law enforcement overtime, and the costs associated with jury sequestration. Unfortunately for city coffers, the hung jury on the most serious counts mean that a similar retrial is likely. This case cost substantially less to try than the Zimmerman case, and is being used as a model for upcoming cases, such as the Marissa Alexander case. That case will also be a second trial.

Wait, why doesn’t double jeopardy apply to these cases? Because they were not acquitted the first time around. Had they been found not guilty, they could not be tried again. In Dunn’s case, the hung jury on the murder charge essentially

Marissa Alexander

Marissa Alexander

makes the trial on that count a nullity, and it must be retried anew. The convictions on the other charges will stand. As Marissa Alexander was convicted the first time around, she could have let that verdict stand. But since she got the benefit of a new trial being ordered on appeal, she faces the prospect of a new trial. Normally, the sentence cannot be increased on a retrial, as it could be seen as vindictive. However, legal changes may force the judge to order any minimum mandatory sentences under 10/20/Life to be served consecutively. That legal change may force the court’s hand, which would suggest the increased sentence was not due to vindictiveness. Defendant’s are not eligible for gain-time or other early release on a 10/20/Life sentence, which means Ms. Alexander would serve every day of 60 years, less what credit she already had.

It’s Hard Out Here For Lawyers

In case anyone needing reminding, this suit alleging that Arizona deputies beat a lawyer who was trying to comfort his client is shocking. I wish it would go to trial, but these things generally resolve before that level. Still, it’s a reminder of all the things that attorneys are up against.

http://reason.com/blog/2013/06/21/sheriffs-deputies-beat-and-jail-attorney?utm_medium=referral&utm_source=pulsenews

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

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/