Category Archives: Police

Sarasota Police try to Charge an Attorney Defending Her Client

Sarasota defense attorney, and friend of the firm, Varinia Van Ness had criminal charges sought by the Sarasota Police against her for her representation of her client. The mere fact that officers would even consider trying to charge a defense attorney for zealously doing her job is shocking. It’s petty, retaliatory, and an affront to our adversarial system of justice. Fortunately, the officer’s multiple attempts to file charges were rebuffed by cooler heads.

Attorney Varinia Van Ness, via
http://www.vannesslawgroup.com/

It started when two Sarasota detectives sought to serve search warrants on Ms. Van Ness’ client and his phone. The parties agreed to meet at Van Ness’ office but about 10 minutes into the meeting, it was revealed that a Detective Derek Galbraith had activated a recording device without notifying Ms. Van Ness. When she found out, she insisted he either terminate the recording, or to leave the office. He declined to turn it off, but he also declined to leave the office. She indicated he was trespassing, but he still wouldn’t leave and Van Ness eventually called 911 to get him to leave.

After detectives left, they tried to serve the warrants again at the client’s work, at his brother’s house, and even at his ex-girlfriend’s home. Van Ness and her client agreed to meet at the police department. When the Detectives read the phone warrant, a spelling error was noticed in the client’s name, and Van Ness and her client left the room, though they ultimately did submit a DNA sample. Later that day, Detective Dan Riley from the Sarasota PD requested that a warrant be issued for the arrest of attorney Van Ness for obstruction of justice.

Fortunately, the warrant was never issued. It was submitted to a judge who recognized that the case involved a defense attorney doing her job, which would be a valid challenge to the warrant. He said it would have to be reviewed the State Attorneys office to see if formal charges were warranted. Sarasota PD didn’t give up, and submitted the warrant request to the State Attorney’s office. The local SAO had a conflict of interest, and the case was reassigned to the 20th Judicial Circuit SAO, who also declined to file charges. Sarasota PD took one more shot, submitting the case to FDLE, who also declined to pursue charges. The case was reviewed by three separate independent judges/agencies, who all agreed there was no merit to bringing charges.

This type of attack on an attorney is shocking and very problematic to the justice system. Ultimately, the fear would be that if cops can go charge an attorney for advocating for their clients, the chilling affect on the job of defense attorneys would harm our criminal justice system and is an affront to the Constitutional protection to the right to be represented by an attorney. The Sixth Amendment guarantees the right to assistance of counsel, and it applies at every level of a criminal investigation.

It’s rare that law enforcement would seek to charge an attorney for advocacy in the normal course of their work. Usually, it takes something really egregious, the Paul Bergrin case in New Jersey springs to mind, where he assisted gangsters placing hits against witnesses. Only something extreme that goes beyond advocacy should even be considered, and even then, it should be reviewed by attorneys before being submitted for a warrant.

Asking a Detective to leave your office because they recorded you without permission is not obstruction of justice. Declining to have your client turn over his phone password when his name is spelled wrong on the warrant is not obstruction of justice. That’s advocacy. Zealous advocates like Varinia Van Ness are the first check against government overreach and the primary protection of individual Constitutional rights. We are lucky to have defense attorneys like Varinia.

via Sarasota Herald-Tribune

FMPD Sued for Arresting and Tasing a Man for No Legal Reason

jones taser

Jones, about to be tased from behind

Two FMPD officers had no legal reason to arrest Holley Jones in April, 2018, but when he tried to walk away, they tasered him. The officers indicate they responded to a third-party complaint about a disorderly person, which apparently did not identify Jones. The whole incident is on body cam, and Mr. Jones is not causing a disturbance when officers come in and tell him they want to talk to him. When he declines to come outside, he tries to shake the officer’s hand, and the officer gets angry, and starts yelling at him not to touch him, pulls out his taser, and orders him outside. Jones says he did nothing wrong, and the officer says you’re real close to doing something wrong.

An officer is not allowed to detain someone, or order them around, unless he has evidence that they’ve done something wrong. Jones’ refusal to come outside isn’t improper because the officer doesn’t have evidence of a crime to have the authority to order him outside. People like to say you don’t have to consent to officers if you’ve done nothing wrong, but it results in poor Mr. Jones getting tased when he eventually runs away from the officers.

Something that’s nearly as bad as the unnecessary violence is that the officers mislead in their report to try to justify their actions. They indicate in their report that Jones did not seem to understand what they wanted him to do. The video is clear that he understood, but did not consent to following them outside or being searched. Then the officers say that when he ran back inside, he turned around in a “defensive posture with his arms raised,” and “a closed fist as if he was going to strike” the officer. The video clearly shows the officer is lying, as Jones is simply trying to evade the illegal arrest. The irony is that experienced criminal attorneys will recognize the “defensive posture” language as a phrasing that cops frequently use to justify use of force. In this case, thanks to the body-worn cameras, the truth is exposed. NBC-2 uploaded the video here, and it is somewhat graphic.

The case went to court, and on a motion to suppress, the state could not show a lawful detention, and the evidence was suppressed, leading to the case being dropped. Officers are allowed to talk to people in a consensual encounter, but they can’t just order people around who aren’t breaking the law. This should be a teaching tool, and body cams will help improve police and citizen interactions. In the meantime, this poor police work will probably lead to Mr. Jones getting paid. Not only that, they found substantial amounts of drugs on him, but he cannot be prosecuted due to the poor police work.

Alleged Cop-Killer Desmaret to be Evaluated for Competency

wisner desmaret

Wisner Desmaret

The man charged in the killing of Fort Myers police officer Adam Jobbers-Miller has been ordered to undergo a competency evaluation to determine if he is able to stand trial at this time. Wisner Desmaret will be evaluated by qualified doctors to determine whether his current mental state can support going to trial a this time. One has to be severely impaired to be found incompetent, essentially the experts would have to find that he was unable to understand the charges, the court process, or to effectively assist his attorneys in his defense. If he is found incompetent at this time, that does not mean that he can not be prosecuted, as the state can attempt to restore his competency (through medication and counseling) and he can be brought to trial if his competency is restored.

The evaluation was expected, as there have been previous questions of his competency in his previous cases. He has been found incompetent multiple times, and on one occasion, the court found that his competency was not restorable, based on expert testimony presented. However, another judge found that after restoration treatment, that his competency had been restored, which led to his release from a Sarasota county jail not long before he killed Officer Jobbers-Miller. If he is found incompetent, he will likely remain in custody until his competency is restored, at which point he will face trial for First-Degree Murder. The state has filed their intention to seek the death penalty against him.

Beauty Queen Exonerated by Stand Your Ground to Sue City of Hialeah

Vanessa Barcelo

We previously covered the story of former Miss Hialeah and Miss Miami Lakes, Vanessa Barcelo. Barcelo was initially arrested for aggravated battery for threatening a man who refused to leave her party after causing a serious disturbance. The state determined that she did not strike anyone with the bat, but proceeded a misdemeanor battery charges as Ms. Barcelo slapped the man at the end of the altercation. After a 9-hour hearing, the court found that the man’s refusal to leave, and since he had taken the bat, meant her fear was justified, and dismissed the case under Florida’s Stand Your Ground law.

Now Barcelo is suing the cop and the Hialeah Police Department for the arrest, and for propagating the story that she beat hit the guy with a bat. While police are generally immune from suits, this suit alleges that the officer was grossly negligent, and relies on language in the stand your ground statute that compels police to investigate and determine whether there was justification for the force used. Working against the civil defendants is that Barcelo indicates the officer would not even take a statement from her, there were multiple witnesses who stated she had not struck him with the bat, and the alleged victim was drunk, and initiated the incident when he refused to leave her house when it appeared had had attempted to assault her cousin.

One of the less discussed aspects of the stand your ground law is that it is supposed to help prevent charges like the ones on Ms. Barcelo. It is explicit that officers are supposed to do a little more digging, and to be very sure that force was necessary before they make any arrests. They could be in trouble here, in light of the facts and the sloppy investigation. This is one of the rare circumstances where the cop and the police force may face consequences for their wrongful arrest.

https://www.miamiherald.com/news/local/community/miami-dade/hialeah/article220973930.html

 

Alleged Cop-Killer Desmaret Indicted for First Degree Murder

wisner desmaret

Wisner Desmaret

A grand jury has returned an indictment for First Degree Murder against Wisner Desmaret, the man accused of killing FMPD Officer Adam Jobbers-Miller. A grand jury indictment is a necessary step in Florida to proceed on First Degree Murder charges, and may be the next step toward the state seeking the death penalty. The grand jury found evidence that he killed Jobbers-Miller with premeditated design or in the course of committing a violent felony (resisting an officer with violence), in addition to additional charges of Resisting with Violence, Robbery, Depriving an Officer of Means of Protection, Attempted Murder and Aggravated Assault on other officers, and Burglary and Grand Theft. The police report indicates that Wisner, a former boxer, knocked Jobbers-Miller down, took his gun, and shot him in the head while he was still on the ground. He then fired at two other officers, one of whom shot Desmaret before he was taken into custody.

Desmaret is set for arraignment on August 27, though that may be moved up, since the indictment has been filed. Chief Assistant State Attorney Amira Fox was the prosecutor who obtained the indictment, and will likely be handling the case.

95-Year-Old Granny Arrested – Cops Didn’t Know Better

Hattie Reynolds mugshot

Hattie Reynolds

Little Hattie Reynolds is a 95-year-old great grandmother living in Daytona Beach, Florida. One of her grandchildren was being lazy and wouldn’t get out of bed, so she called the police, on the non-emergency line, for assistance. She had no idea she’d be going to jail.

When officers showed up, they investigated and learned that during the dispute, Ms. Reynolds had slapped her 46-year-old granddaughter, who refused to get out of bed and starting screaming and yelling obscenities at Ms. Reynolds. Unfortunately, Ms. Reynolds slapped her with the slipper she had been wearing. When she told this to the cops, she was placed under arrest and charged with domestic battery. She spent a night in jail until she could see a judge, who released her on her own recognizance.

Cops tend to think that when there is probable cause for an act of domestic violence, that they must make an arrest. I suspect that’s what they are taught during training. However, the Florida Statutes give them the discretion not to make an arrest… they just have to file a written explanation why they didn’t make an arrest in their report. The chief of Daytona Beach Police even told the press that officers don’t have discretion… and he’s flat wrong. Officers are permitted to make an arrest, but do not have to make an arrest. This clearly sounds like it would have been a good opportunity for the exercise of that discretion.

 

Cape Coral on Enhanced Traffic Enforcement this Weekend

capecopsCape Coral will be conducting traffic enforcement operations this weekends, likely targeting Veterans, Coronado, and Kismet. Be sure to be safe out there. The Fox article got my attention because it says checkpoints in the headline, but I think that might be a misnomer. It’s probably just targeted enforcement as opposed to full checkpoints where they randomly stop drivers. Regardless- drive safely!