2 Strikes and You’re Out, Florida’s Harsh Career Criminal Sentencing

A recent article took a look at Florida’s Prison Releasee Reoffender statute, which mandates a maximum penalty for designated offenders. The problem with sentencing strictures that take discretion away, is that imbalanced sentences can follow. The man discussed in this article, Steve Brana, was sentenced to life for robbery, except the robber with the gun got less time. Brana’s only prior offenses were juvenile burglaries. It’s appropriate to take a violent offender off the streets for a time to ensure the safety of the community, but life in prison for an accomplice (or principle) who has no violent history may not be necessary.

Alec Baldwin to be Charged with Involuntary Manslaughter in Accidental Shooting Deaths on set of ‘Rust’ Movie

New Mexico prosecutors announced today that they are filing charges against actor Alec Baldwin, as well as weapons handler Hannah Gutierrez Reed, for the tragic October, 2021 accident on the set of the movie ‘Rust’. The production failed to ensure several safety precautions that should never had allowed live ammunition on the set, much less in a gun handed to an actor.

Baldwin denies that he pulled the trigger. While it’s possible the gun malfunctioned, the FBI said their tests showed the gun functioned properly, meaning that the trigger would need to be pulled for it to discharge. His statements to the contrary will call his testimony into question.

That said, it will be extremely difficult for prosecutors to prove him guilty beyond a reasonable doubt. First, when he was handed the gun, he was told that it was a “cold” gun… that means he expected it to be safe. That makes it hard to prove the his lawful act “might produce death in an unlawful manner or without due caution and circumspection.” He did not have reason to pause because there were protocols in place, ammunition should not have been live on the set, and he was told the gun was cold.

That doesn’t end the analysis for several reasons. One additional factor is that he was a producer on the film. That means he may bare some more responsibility for the lack of safety on the set and the failure to ensure protocols are followed. I don’t think that rises to the level of criminal responsibility, that sounds more like civil liability. Apparently the civil wrongful death matter has already been settled by Baldwin and the production.

I think the prosecutor wants to show that they do not hold anybody above the law, but I think they will have a hard time proving criminal charges against Baldwin. Frankly, the fact that they also charged the armorer suggests her negligence may weigh against Baldwin’s responsibility. I think there is a high likelihood it will go to trial, as Baldwin will want to try to win acquittal in court, but it will be fascinating to watch from a legal standpoint.

DUI Suspect does a Backflip to Try to Show He’s Not Drunk

An Ohio man was stopped for suspicion of DUI the other day, and he tried a unique way to show the officers that he was not impaired. 27-year-old Tanner Watson was pulled over in Broadview Heights for speeding, but officers suspected a possible OVI (Ohio’s version of DUI). He admitted a having a few beers, but to show that he wasn’t drunk, he did a backflip for the officers on the side of the road. Not only that, he landed it.

Based on his performance on the other exercises, officers still felt that he was impaired and arrested him. But, he’s got an argument to the jury that his acrobatics would show that he’s not impaired. There is some power to the argument that if he can pull off such a physical feat, that he was not impaired, as most of the jurors would not be able to do a flip!

A friend of mine at the prosecutor’s office was working a DUI case many years ago, and wanted to show me the video. He thought he had a great case because the Defendant started dancing during the field sobriety exercises. Not just any dancing, she was a ballet dance, and started going through positions and performed some impressive moves. I told him that the case may not be as strong as he thought, and the jury ended up acquitting her. It can be hard to show that someone’s normal faculties are impaired, as required by the law, when they can perform impressive athletic skills.

I said it was a unique way to avoid a DUI, but a little searching shows that he is not the only person to do a backflip to try to prove his sobriety, here’s another:

There have been quite a few ways people have tried to avoid DUIs, check out this parkour guy, backflips are among the more impressive.

Massage Worker Accused of Unwanted Sex Act

A Port Charlotte man went into a Charlotte County massage parlor, sorry, “spa,” and requested a massage from the ‘masseuse’ there, Ms. Dong. That’s really her name, though I won’t list her first name. He took off all his clothes and laid down on the table, where the worker started rubbing his shoulders. She asked him to flip over, and he did so, fully naked and without a covering towel. He says he was surprised when the massage worker grabbed his genitals. Shocked, I’m sure!

The alleged victim told deputies he paid $100, when massages were only listed for $70. He told the cops he called after she refused to give him his money back. That’s probably about the end of the truth in his story.

She told deputies that she was giving him a massage when he started asking for sexual favors. She says she refused, and he became angry, and gave him $50 back hoping he would leave so she went to the back room.

So, either the guy had NO IDEA that this strip mall ‘massage parlor’ was a haven for sexual favors -OR- he knew it was and asked her to do things she didn’t want to do. Which situation is more likely? Generally, when stories differ, the truth lies somewhere in the middle. The more plausible story is probably nearer the truth. However, the cop arrested her for Battery and for Unnatural and Lascivious Act, because the dude was the one who called the cops. Good luck proving that one.

‘Serial’ Case to be Revisited, Prosecutor Asks for New Trial for Adnan Syed

Adnan Syed, who was convicted in 2000 for the murder of his girlfriend Hae Min Lee, may have a chance for a new trial. His case came to national attention through the hit podcast ‘Serial’, and was later revisited by an HBO documentary. There was a substantial question whether the conviction against Mr. Syed was correct, though the appeal had been upheld. However, a new appeal led to a ruling in 2018 that he should be entitled to a new trial, but that decision was reversed by the highest Court in Maryland.

Earlier this year, Mr. Syed’s attorneys approached the Sentencing Review Unit at the Baltimore prosecutor’s office, and asked them to conduct a new review of the case. Subsequent to that investigation, prosecutors indicate there is new evidence that should entitle Mr. Syed to having the prior conviction set aside, and be given a new trial.

During the investigation, prosecutors (basically a conviction integrity unit), uncovered additional evidence that had not been disclosed to the defense. Most notably, different suspect were known to the prosecutors, they were not properly ruled out, and related information was not given to the defense. There was another witness who said the suspects had motive to kill the victim, and threatened her, saying he would make her disappear, that he would kill her. Obviously that is relevant evidence to Mr. Syed’s defense, and should have been turned over to his attorneys prior to the trial. This type of evidence is known as ‘Brady’ evidence, and prosecutors have a duty to disclose.

Mr. Syed has always maintained his innocence, and there were always questions surrounding his conviction. It looks likely that he will get a chance to have another day in court, and increases the likelihood of finding out what actually happened to Ms. Lee.

DUI on a Golf Cart (and Fleeing!)

Alex Acevedo via CCSO

This week a Collier County man from Immokalee was arrested for drunk driving in a golf cart when deputies tried to pull him over. According to reports, Alex Acevedo saw the cops, pulled over, tossed a can out the side of his cart, and then sped off. He got to a nearby residence, tossed his cell phone to someone before being detained. Deputies indicate he smelled strongly of alcohol, had trouble maintaining his balance, and refused to do exercises. He was arrested and charged with DUI and Resisting an Officer.

Notably, Mr. Acevedo actually got lucky. He could have been charged with Fleeing, which is a felony. The golf cart is technically a vehicle, and he left the stop– fleeing does not require high speeds– so he could have been charged with a felony in addition to the misdemeanor resisting charge. That’s probably some fair discretion to leave it at DUI, it’s not like he was on a high speed frolic! Again, the attempt to get away from the original charge was worse than the underlying offense.

Apparently, fleeing in a golf cart is not that unusual. A couple years ago in Martin County, several men fled a stop. One of them ran onto a golf course, stole a cart from some golfers as they played, and continued to flee. As golf carts are not very fast, he was “immediately” captured by deputies and taken into custody. Newsweek covered that case, and cited several other recent occurrences. So, fleeing on a golf cart is not that rare, but I suspect escaping on one doesn’t happen very often.

Charlotte County Teacher Charged with Harboring a Runaway Minor in her Home

Charlotte County teacher Kelly Simpson, 31, has been charged with Interference with Custody of a Minor. Charlotte deputies allege that she picked up the minor from an unknown location, and knowing his missing/endangered status, concealed him inside her home. That’s all the details available right now. It’s important not to jump to conclusions of guilt, perhaps the minor had fled an unsafe circumstance (or convinced her as much), and she was acting in the child’s interest. She is innocent until proven guilty.

Florida Juveniles can now Expunge Certain Records

Juveniles who complete court-ordered diversion programs for several types of charges will now be able to get those records expunged. A bipartisan effort passed the legislature unanimously and was signed into law by Governor DeSantis a few weeks ago. It does not extend to forcible felonies. This is limited to those who complete diversion, which generally involves first-time offenders with non-violent charges that are ultimately dropped upon completion of the diversion programs.

This is another good step to meaningful criminal justice reform. I’d like to see all charges that get dropped eligible for expungement. Right now, some adult charges for people who are acquitted, or even not filed on, cannot be expunged if the alleged offender has a prior conviction, even if it is unrelated. Imagine being acquitted of a false allegation only for the arrest to remain a public record. More work needs to be done for criminal justice reform, but it is always good to see progress.

Club Blu Murder Trial continues after one of the Prosecutors Passes Away

Over the weekend, Assistant State Attorney Anthony Kunasek passed away. Mr. Kunasek was one of two prosecutors handling the trial of Kierra Russ, one of the co-defendants in the shooting at Club Blu several years ago in Fort Myers. Russ is charged with two counts of murder, as well as conspiracy for murder, though she is not alleged to be one of the shooters. The Sheriff’s department and the State Attorney’s Office have confirmed that it was not murder and deemed the death not suspicious. People have been speculating online that there may have been foul play, especially as the sudden death came in the midst of a murder trial with alleged gang affiliations, but there has been no evidence to support that theory, and that is not a likely explanation.

Beyond the tragedy of losing Mr. Kunasek, a long-time employee of the SAO, the State faced a challenge of what do to with the trial. Assistant State Attorney Sara Miller is the lead attorney on the case, and the State has decided to go forward. If the state had decided not to go forward, they could have requested a mistrial under the circumstances. However, had they been granted a mistrial, the Defendant would have challenged the State’s ability to retry the case due to the Constitutional Prohibition against double jeopardy. Generally, the State only gets to try somebody one time. Alternatively, the State could have asked to continue the case for a period of time in order to be prepared to go forward.

Ultimately, the State made the assuredly difficult decision to go forward on Monday without Mr. Kunasek. It was the last day of evidence- the parties had hoped to conclude evidence on Friday, but had a few witnesses left to testify before resting. The case was scheduled for closing arguments today: jury deliberations are now underway. It is a challenging case to prove, as Ms. Russ is being charged as a principal to the crime, as she was not one of the shooters.

This is a sad situation for the legal community. My heart goes out for those who knew Mr. Kunasek, especially his friends and family. I worked with him during my time at the SAO many years ago, and knew him as a talented trial attorney, a sentiment I’ve heard echoed time and again. Condolences for anyone who was affected by his passing.

*UPDATE* The Jury found Kierra Russ Guilty of two counts of second-degree murder and a count of conspiracy to commit murder. She faces life in prison at sentencing on June 6.

Woman Who Stabbed Mother to Death Enters Plea for 15 Years in Prison

Mariya Kelly stabbed her mother one time in the chest. The knife penetrated 9 cm, piercing the membrane around the heart, and puncturing an important artery. Her mother, Melissa Kelly, quickly succumbed to blood loss from the injury. Today, Mariya Kelly entered a plea to Manslaughter charges, and pursuant to an agreement, was sentenced to 15 years in Florida State Prison. Ms. Kelly was just 21-years old when she killer her mother.

Mariya Kelly

Ms. Kelly had claimed self-defense, saying her mother attacker her and struck her in the head prior to her using the knife, with which she had been cutting strawberries in the kitchen. We covered the Stand Your Ground Motion before Judge Branning a few weeks ago, and the court did not find that she was justified in using deadly force that could have allowed the case to be dismissed before trial. She faced a jury trial, and a potential 30-year sentence, before accepting the plea offer.

The Stand Your Ground hearing was emotional, including testimony from family members about the incident and previous disputes with her mother. Several family members also testified at the sentencing hearing today, including her brothers, one of whom testified they hoped she rots in jail, while the other called her a “murderer” and a “monster.” There was also testimony that she had previously been part of a cult known as the “Carbon Nation”, which is known for polygamy and nudism, but there is no indication that had anything to do with the incident involving her mother. Without a doubt, the situation was a tragedy and that the single strike with a deadly weapon tore a family apart. In Florida, convicts must serve 85% of their sentence, so she will not be eligible for release for more than a decade.