Crimcourts is a blog by Florida Criminal Attorney Spencer Cordell, dealing with Florida criminal issues, and cases of nationwide interest. spencercordell@hotmail.com http://www.facebook.com/crimcourts
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.
*Update*- There are indications on the internet that the article I cited as a good explainer was plagiarized from an earlier Tweet-thread by Natalie Whittingham Burrell: @natlawyerchic on Twitter. Ms. Whittingham Burrell’s thread predates the ATL article – she posted on June 2, per Twitter. ATL indicates in an Ed note that they received the draft article on June 3. So, while the language is different, the issues raised, the discrepancies cited and even case law references are the same. I’m going to leave my post which references the Warshow article on ATL, but I’m going to add links to the Whittingham-Burrell thread, which, even if it was not plagiarized, had the scoop on ATL. Also, Ms. Whittingham-Burrell included some photographs in her thread that are very useful for context.
I was only able to watch small fractions of the trial, and edited posts on social media often don’t shed much light on the subject, so I’m happy to share a more thorough analysis. Out-of-context clips can give one a lopsided view of a trial, when it needs to be seen in totality to truly understand the verdict. I found an excellent explainer from Diana Warshow on Above the Law that really digs into the allegations and the evidence presented to the jury. This is about the most comprehensive one I’ve seen, and it addresses many of the questions I’ve heard about why the jury found in favor of Depp, despite Heard claiming evidence of injuries.
One issue this article doesn’t get into is the likability of witnesses, which goes heavily to their credibility. Johnny Depp is a huge movie star whose testimony was generally well-received by outside observers, judging by the social media reaction. Amber Heard, while being a move star in her own right, is not as well known or successful as Depp has been, and her testimony was not apparently as well-received by the general public as indicated on social media. In light of the verdict, one suspects that the perception of the testimony, both from a likability standpoint, and in light of contradictions pointed out in the ATL article, the jury certainly found Mr. Depp’s testimony more credible.
I’m not taking sides on Team Depp or Team Heard, but the jury who listened to weeks of testimony had a clear winner in awarding millions more to Mr. Depp.
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.
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.
Mariya Kelly, who was arrested in 2020 and charged with Manslaughter with a Weapon in the killing of her mother, filed a Stand Your Ground motion to have her charges dismissed. Essentially, she is arguing that she was justified in using force against her mother in the incident. Florida’s Stand Your Ground law permits the Defense to have the charges thrown out prior to trial unless the state is able to prove the the force was not justified.
It is undisputed in this case that the alleged victim’s death was caused by a knife wielded by Ms. Kelly. The Defense argues that the mother was the aggressor. The legal question is whether the fear claimed by Ms. Kelly justifies her use of deadly force against the victim, who was her mother. There was a single injury from one stab wound to the chest which was fatal.
At the Stand Your Ground hearing today, the Defendant’s brother gave dramatic testimony as a witness to the event. He testified that their mother was unarmed, but that an argument ensued and that the alleged victim took multiple swings at the Defendant, before the Defendant struck her mother one time with the knife. The victim’s mother, the grandmother of the Defendant, testified to a prior incident of the alleged victim beating Ms. Kelly.
Ms. Kelly took the stand to testify about the incident. She testified that her mother got upset and attacked her, flailing wildly and striking her several times about the head and upper torso. She said she was already holding the knife because she was preparing strawberries for her young daughter. She said the victim saw the knife and attacked her, when she wouldn’t put it down. She testified that she was scared, due to the prior beating and since her mother was quite a bit larger than she was (some six inches and 70 pounds). She said she struck her out of fear, one time to stop the attack. She admitted on cross that her mother was unarmed, and did not threaten her verbally, but that she was afraid of what might happen.
The legal question for whether the use of force is justified turns not on whether the victim was armed, but whether the Defendant had a reasonable fear of death or serious bodily injury at the time of the offense. While that fear is difficult to show when only one person is armed, it’s not unheard of. The recent Tampa case of Curtis Reeves is a high-profile example. Reeves was involved in a dispute at a movie theater, and the other man threw popcorn at him. Reeves also asked for a dismissal under the Stand Your Ground law, but the motion for immunity was denied. However, he successfully argued self-defense at trial and was acquitted by a jury just last month. Key to his defense was his compelling testimony before the jury about his fear at the time.
It was a sad, difficult day in court today. Regardless of the outcome, the case is clearly a tragedy. The judge denied the motion to dismiss, but the case will proceed to a trial, potentially starting at the end of this month.
The Florida Supreme Court has accepted a case that deals with Florida’s ‘Marsy’s Law’- a legal provision that – among other things – prohibits the release of personal information for victims of crime. Since it was passed as an amendment to the Florida Constitution, it has been the subject of much litigation for First Amendment as well as its criminal ramifications. The case now before the Florida Supreme Court deals with First Amendment implications, specifically the release to media of law enforcement names when the officers are also implicated as the victims. The irony in this case is that one of the officers shot a man named Tony McDade, but claims that McDade’s actions made the officer a victim. Officers have sued to try to prevent their agency from releasing their names to the press, while the city hoped to release the names in the interest of police accountability.
The media has countered that allowing officers to be covered by the law would undercut the state’s open records laws. Florida has very broad laws allowing for publishing public records, often referred to as Sunshine Laws. However, though the name suggests Marsy’s Law is a law, it’s actually a Constitutional provision, which may end up trumping the open record laws. And while the First Amendment protects the right of media to publish information, it does not compel agencies to release information. The appellate court previously sided with the officers, ruling that they were entitled to the protection. Whether or not the policy is a good one is not before the court.
Police say Dr. Jozsef Piri did not know Roberto Fonseca-Rivera, of Boston, but they have charged him in Fonseca-Riveras homicide along Vermont Rte. 103 in November, 2019. Details are still limited, but police say they have surveillance footage, GPS data, pictures, and other evidence that indicate Dr. Piri was driving his pickup directly in front of Fonseca-Rivera’s delivery truck the day he was killed. Fonseca was found shot to death in the head and neck in his truck, which had been pulled to the side of the road. They zeroed in on the silver Toyota pickup not long after the homicide, and believe Dr. Piri was driving a truck matching that description in the area at the time (he lived in Connecticut and was returning from Vermont.).
Dr. Piri has been arrested in Naples, where he worked as a doctor for Physician’s Regional Hospital. He is awaiting extradition to Vermont where he will face murder charges. The fact pattern suggests a possible road rage situation, but that’s unclear as there are so few details so far.
Police photo of the Toyota
*UPDATE: I found a story from the time of the incident where Vermont Police released a photo of the Toyota pickup they had been looking for. It’s not clear what connection Dr. Piri may have to the truck. Notable, the photo released clearly shows a person sitting in the passenger seat, which means if the truck was involved, there must be a witness. Also, it happened in the middle of the day, between 1 and 1:30 p.m.
Obviously, 110 years for an accident is a lot of time- it’s life in prison, even where four people died, the crash was due to an accident. The driver’s brakes failed, but the prosecutor was able to convict him on 27 counts for the actions he took after the mechanical issues arose. At one point, it was argued that he should have slammed into another truck, essentially committing suicide, as opposed to attempting the evasive maneuvers that resulted in the crash. The judge ultimately suggested that he would not have sentenced Rogel Aguilera-Mederos, 23, so harshly if he had not been required to do so by law.
This article indicates the most serious charges were the four counts of vehicular manslaughter for the people who passed away, but due to the violent crimes mandatory sentencing strictures, Colorado required harsher sentences on the assault charges than the manslaughter charges. The judge’s hands were tied, and had to sentence the six assault charges to 10 years each, and mandated that they be sentenced consecutively. Further, the 10 attempted assault charges each carry a mandatory five-year sentence, also required to be served consecutively. Add those up, and the judge had no choice but to enter a 110-year sentence.
For the remaining charges, including the manslaughter charges, the judge entered a sentence of 30 years in prison, to be served non-consecutively. The judge gave a sever sentence for the deaths that the jury had found Mr. Aguilera-Merderos culpable for, but did not seek a sentence that would surely extend beyond his lifespan. One can clearly extrapolate that he did not feel such a sentence was appropriate, but was bound to make it based on the laws in Colorado and the way the prosecutor chose to bring the charges. The judge even suggested that he was bound by law to the sentence, and that none of the victims (and families) who gave testimony suggested that a sentence beyond life was appropriate. The mandatory minimums resulted in a sentence that was beyond what the judge felt was just, but took away the discretion of the court to apply reason.
We have decried the issues with mandatory minimum sentences here before, and the issue is prevalent in Florida, as well. This reminds me of the Marissa Alexander assault case that resulted in a disproportionate sentence a few years ago- and ultimately lead to changes in Florida law. As a general rule, mandatory minimum sentences may be well intentioned, but where there is no discretion, will ultimately be used to an unjust end.
Fortunately, Colorado does have a provision that would permit the court to revisit these sentences after 6 months. Indeed, the judge referenced that the sentences would be revisited, suggesting that he may be open to a showing that would permit them to be reduced. Based on everything stated, that appears to be a likely, and just, result.
I also want to add that Colorado’s assault statute includes reckless behavior (“manifesting extreme indeference to the value of human life”), which is unusual. The crime of assault historically required the intent to place fear/strike/or injure the victim. So, even though Mr. Aguilera-Mederos did not manifest any intent, he was convicted and is now subject to the ‘violent’ crime sentencing structure. That suggests that the sentene may be of a type more sever that intended by the legislature, but certainly applicable under Colorado’s definition of assault. (Usually, behavior so reckless to endanger life is criminally punishable, but not usually as assault. That’s the type of language for manslaughter or reckless driving in most jurisdictions.)
The Lee County Sheriff’s Office recently released aerial footage from this weekend, when a man fled from deputies, wrecked his stolen vehicle, and jumped off the Edison Bridge into the Caloosahatchee River. He survived the fall, and was fished out by deputies. The footage is dramatic.
LCSO says Bryan Gray was driving a van that had been stolen. Now, Grand Theft Auto is a third degree felony. In Florida, that has a maximum penalty of five years. However, unless someone’s record is really bad, it does not generally score out to mandatory prison time. Since Gray fled, he’s also facing charges of fleeing, with a high speed and property damage enhancement, adding on a second degree felony. That takes his maximum penalty up to 15 years, and greatly increases his scoresheet that could lead to a minimum permissible sentence that is more likely to require prison. Plus, his stunt landed him in a hospital and it could have been much worse.
Another case is exemplar of the coverup far exceeding the underlying offense. This week, Courtney Gainey was sentenced in the death of 14-year-old Allana Staiano. She pled out a few weeks ago to charges of Leaving the Scene of an Accident involving death- literally her crime was fleeing the scene. Had she stayed, it may have merely been an accident and a civil traffic ticket. As it is, she was charged with a first degree felony, exposing her to up to 30 years in prison. The charge carries a four-year mandatory minimum prison sentence, but the minimum was thrown out the window as the judge maxed her out at 30 years. It was suggested that she had been drinking that night, but even if she had been drinking to the point of impairment, a DUI Manslaughter is a less serious offense than leaving the scene. Dui causing death is a second degree felony, again with a maximum 15-year sentence. Her flight from the scene directly exposed her to twice as much time, and the notoriety of the case likely contributed to such a harsh sentence for a first time offense.
Once more the flight, or the cover-up, ends up being more serious than whatever offense one is trying to avoid.
The City of Fort Myers has instituted a ‘ShotSpotter’ system. This type of system alerts Myers Police when audio detectors are triggered by sounds that it recognizes as a shot from a firearm. The system not only ‘hears’ the shot go off, but can triangulate a location, much in the way cell-towers locate cell phones. It can be a very useful tool, but it can also raise all sorts of issues related to probable cause: such as whether the noise was actually a firearm and how accurate is the location system?
The system went off Wednesday night and ShotSpotter led officers to a home in the city. It was apparently the correct address, as resident Randolph Williams answered the door, bleeding from his head, and with a large pool of blood on the floor. Williams was detained, and officers searched the home. Inside, they found an apparent marijuana grow operation with lights and multiple apparent young and adolescent marijuana plants. Williams was arrested for multiple charges in relation to the grow operation and for resisting arrest.
While the officers found ample evidence for the drug charges, there is an issue with the legality of their search. While the ShotSpotter gives them reasonable grounds to investigate, it’s questionable whether that alone is grounds to search a home without a warrant. The news story appears to suggest they based their search on an exception of exigent circumstances- arguably that they were worried that there was possibly an injured person. Unfortunately for that argument, the injured person was the home owner, and he was already in custody. Whether or not there is an applicable exception to the warrant requirement (which is strictly construed in individuals’ homes) depends on the totality of the facts, to which I am not privy, but it is an interesting issue.
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