Category Archives: Criminal Law

Supreme Court Upholds the Double Jeopardy Exception

Supreme Court

I suspect most people don’t realize there is a key legal loophole that allows people to be prosecuted more than once for the same crime. It’s understandable that people would not realize this, as the Fifth Amendment pretty clearly states: “… nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb…” It’s a principle handed down through the common law, and appears to date all the way back to the Roman Empire. However, U.S. courts have allowed people to be tried, and punished, for duplicate offenses if those offenses are prosecuted in different jurisdictions: State and Federal. That is, even if a state court has tried, convicted, and sentenced someone for a charge in state court, the federal government can also try, convict, and sentence them in federal court. The sentences can even run consecutively, that is, one after the other.

On Monday, the Supreme Court issued a decision in a case, Gamble v. United States, that could have reversed the long-standing exception to the bar on double jeopardy. Instead, a 7-2 majority upheld the double jeopardy exception. The majority opinion found that the separate laws are defined by different sovereigns: although “separate sovereigns” is a judicial construct that does not appear in the Constitution. Mark Joseph Stern at Slate points out that dissenting justices Ginsburg and Gorsuch cite founding father Alexander Hamilton, in the Federalist papers, argue that sovereignty derives from the people and that the federal and state governments are to be regarded as “ONE WHOLE”. So, the two-sovereignty theory fails the framer’s intent test, as well as failing to convince the court’s leading textualist in Gorsuch. The plain language of the Fifth Amendment does not seem to support that the “atom of sovereignty” can be split so as to place a person twice in jeopardy for the same offense.

This is not a change of law, the courts have long upheld the state/federal exception to the bar against double jeopardy. However, for those that have long thought the state of the law did not reflect the intent of the Constitution, this opinion represents a missed opportunity to close this loophole and protect this right of the people.

3-Year Old Cold Case Closed with Murder Charges Against Former Football Star

Hayzel Obando was found dead in her Fort Myers apartment on Valentine’s Day, 2016. Now, more than three years later, her husband has been arrested and charged with her murder. Earl Antonio “Tony” Joiner was arrested last week in Polk county and charged with Second Degree Murder. The case presented challenges from the start, as it was two months before her death was ruled a homicide. This week, a crew from the TV show ‘Cold Justice’ was in Florida, assisting with the investigation.

Tony Joiner played for the Florida Gators on their National Championship team in 2006, and was a captain his senior year in 2007. As NBC-2 points out, he’s the second member of that team to be charged with murder, after Aaron Hernandez.

Early Antonio “Tony” Joiner, via NBC-2

Tracie Hunter may finally have to Serve her Jail Sentence

Former Judge Tracie Hunter

Former Hamilton County judge Tracie Hunter was convicted in September of 2014 for having an unlawful interest in a public contract, for using her office to get documents to help her brother. In December of that year, she was sentenced to 6 months in jail, but she has remained free while her appeals and post-conviction cases have been going on. Her direct appeals were denied, upholding the conviction, and her last resort, a federal petition for habeas corpus has been denied, and the stay pending its appeal has now been lifted. She has a hearing July 18 before the Hamilton County Common Pleas court, where she could be ordered to begin serving her sentence. Her attorneys have filed a new motion to waive the jail, saying medical conditions involving her back and her arthritis prevent her from being able to serve a jail sentence, but that is a hail mary attempt to try to get the judge to allow her to remain at liberty… the same judge who ordered that she serve her sentence back in 2016, before the Federal stay went into effect. The chances she can avoid jail much longer are narrowing rapidly.

Kellen Winslow II’s Rape Trial is Underway

Former NFL player Kellen Winslow is on trial in California for a dozen charges related to alleged sexual assaults, lewd conduct, and indecent exposure: he faces up to life in prison. The first of five accusers testified yesterday, and it did not go well for the prosecution. The victim’s credibility was attacked thoroughly on the stand: her testimony was “shaking and baffling” according to USA Today and she was “caught in a web of lies and contradiction” according to Yahoo’s Dan Wetzel. Wetzel reports that her story changed while she was on the stand, contradicted her prior testimony, and only her word can overcome Winslow’s claim that the encounter was consensual. The state has four more alleged victims with several different claims. It will be hard for Winslow to overcome that many allegations presented to the same jury, but the outcome is far from a forgone conclusion.

DUI Checkpoint and Increased Patrols in Lee County this Weekend

LCSO, the Lee County Sheriff’s Office is planning a DUI checkpoint this weekend, in addition to saturation patrols targeting impaired drivers. Everybody be safe out there, get an Uber or a cab, but don’t drink and drive!

If you have any questions, be sure to speak to an experienced Defense attorney.

Brooklyn 99 used the Stingray as a Plot Device

We’ve talked about the secretive Stingray devices several times on crimcourts, and I’ve even talked about them on local TV. Stingrays are devices that mimic cell phone towers and can allow law enforcement to secretly collect cell phone data. The problem is, without a warrant, they can be used to unconstitutionally invade people’s privacy and to collect overbroad types of data from innocent citizens. It’s a clear violation of the constitutional prohibition on unreasonable searches.

On the pair of shows of the fictional New York police precinct “Brooklyn 99” which aired last night, the officers of the 99th precinct discover the new NYPD police commissioner has started using a Stingray to illegally collect data. The good guys set up a sting operation to bust the commissioner and end the illegal data collection program- a Stingray-sting! Hijinks ensue, but I won’t spoil the outcome for those who haven’t seen it. Nonetheless, it’s impressive that a comedy show used a hot button topic as the basis for an episode.

Yoga Pants are not an Efficient Way to Smuggle An Alligator

Is that a gator in your pants, or are you just happy to see me?

A couple in Charlotte County were pulled over when they failed to come to a complete stop at a stop sign in the wee hours of the morning. The deputy gave them a warning for the sign and asked where they were coming from. They told him they’d been collecting frogs and snakes. The deputy then asked them if he could see what they caught, to make sure they were complying with the rules. The woman opened a backpack to reveal 42 small turtles; one softshell and the rest three-striped mud turtles. The deputy then asked her if she had anything else, and she pulled a foot long alligator out of her yoga pants!

The deputy called in FWC to take over the wildlife investigation. The driver and passenger were cited for possessing protected species and for a bag-limit violation and released. The animals were returned to the wild.

It might seem silly, but wildlife management is key to protecting the flora and fauna of our habitat. These guys don’t seem like pros, but there is a black market for some protected animals. Just a couple years ago, an alleged alligator poaching ring was busted up, recovering 10,000 gator eggs. Investigators created a fake alligator farm as part of the sting operation! One of those defendants has been sentenced to three years in prison for racketeering and other wildlife related offenses. Know the rules before you fish… or collect reptiles! (Some people call reptile and/or snake collecting “herping“… now you know.)

photos via CCSO

Yoga pants do not seem like the best place to stash a gator… or any wildlife, for that matter.