Tag Archives: right to counsel

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

UPDATE: TRIAL POSTPONED – Jury Selection to Begin in Lavaya May Trial

Tuesday morning update: the trial has been postponed. As of this morning, the State is asking to stay the trial to appeal the court’s ruling yesterday that the notebook written by Lavaya May would not be admissible. The problem with that is, the Defendant had demanded a speedy trial, so the state is asking the judge to stay the speedy trial until the appeal can be ruled on. That’s extraordinary relief. WINK news is reporting that the trial will be put off up to 90 days, but it sounds like things are very much in flux, at this point.

  • May Accused of 2nd Degree Murder, Conspiracy to Commit Murder and other charges
  • May Allegedly persuaded 2 of her friends to kill 58-year-old Ted Lee
  • May, who is still a minor, claims Lee started molesting her when she was 8-years-old

lavaya may

Lavaya May

The trial and jury selection for the murder trial of Lavaya May is scheduled to start Tuesday morning, the trial could take 2 or even 3 weeks to complete, according to the attorneys handling the case. Although May was 16 at the time, she has been charged as an adult, and is facing life in prison on the murder charge.

The prosecution just found out that they lost some of their evidence after a day-long suppression hearing. The judge heard evidence and argument on Friday, and just Monday afternoon ruled that the state cannot introduce evidence from a journal that Ms. May was keeping in custody.

That’s the second suppression loss for the state, as the court previously ruled that the statement Ms. May made when she was arrested was illegally obtained in violation her rights. After the killing, May and the others fled out of state. When they were arrested, an attorney ad-litem who had been appointed to May contacted the Sheriff’s office and indicated she was invoking Ms. May’s right to have her attorney present. Detectives, recognized the issue, and contacted the State Attorney’s office, who incorrectly advised them to proceed with the interrogation of the juvenile May without her attorney. It was a clear violation of her right to counsel, and now they will not get to use her statement, either.

Jonathan Ruffini

Jonathan Ruffini

The State’s star witness will likely be the co-defendant, Jonathan Ruffini. Ruffini, who was 18-years-old at the time of the offense, a year ago, has already entered a guilty plea, and agreed to accept 25 years in prison for his role, in exchange for agreeing to testify. The other defendant, then-23-year-old Hunter Tyson, has also accepted a plea agreement for 40 years in prison, and there is no indication in his court file that he was given consideration for cooperation. It’s anticipated that Ruffini will testify that he and Tyson committed the murder at the behest of his friend/girlfriend May, due to her complaints about being molested by Lee. (Ruffini doesn’t have a DOC photo yet, as he’s being held in the Lee County Jail in anticipation of his being called to testify in the May case. There have been some changes in his story, and only recently did the state list him as a witness, so he may not be that reliable for them.

hunter tyson

Hunter Tyson

The challenge for the state is substantial, as it appears pretty clear that Ruffini and Tyson committed the murder, by baseball bat and knife- with Tyson being the primary killer. To prove a murder, they don’t have to show that May personally took part in the killing, but they can prove that she was a principal to the murder if she aided, abetted, or even encouraged the crime. Under Florida’s principal theory, she is

hunter tyson doc.jpg

Hunter Tyson in DOC

just as guilty as the others if she is found to be a principal. She is also charged with Conspiracy, for plotting the killing with the others. She may garner some sympathy, if the Defense is able to introduce the allegations that Lee had molested her for years. However, that is not legal justification for murder, as the abuse was in the, and would not present an immediate danger for self-defense/justifiable use of deadly force. More likely, the Defense team is going to try to frame the case as an act that was done by Tyson and Ruffini on their own, and not at the instigation of May. Both Tyson and Ruffini have admitted to committing the murder, and plead out to murder charges, but May can only bring that up if they are called in to testify. She can still blame Tyson, even if his admission is not introduced. Ruffini’s statement points the finger primarily at Tyson, and the Defense will try to say he’s blaming May to get a lesser sentence. The trial will be interesting to watch.

 

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!

Gideon’s Army is Screening Tonight at the Miami International Film Festival

Gideon’s Army, the documentary film detailing life in the trenches

Public Defender Travis Williams in "Gideon's Army"

Public Defender Travis Williams in “Gideon’s Army”

for several public defenders, is screening tonight at 7 pm at the Miami International Film Festival. Check it out, tell me how it is!

“Gideon’s Army,” a Documentary on Public Defenders Premieres at Sundance

Public Defender Travis Williams in "Gideon's Army"

Public Defender Travis Williams in “Gideon’s Army”

I pay the highest respect to those public defenders- who work for low salaries, while paying off their law school debts, to defend the rights of the poor and downtrodden. These are the people who are the first line of defense for justice. Both public defenders and prosecutors are underpaid for the service they perform in our state; I know this firsthand having started my career as an Assistant State Attorney. I am looking forward to seeing this film: http://gideonsarmythefilm.com/

http://www.democracynow.org/2013/1/24/gideons_army_young_public_defenders_brave

This year marks the 50th anniversary of the Gideon v. Wainwright decision, a case that originated here in Florida. That case established that those accused of serious crimes are entitled to be provided competent representation. It’s easy to dismiss the accused as mere criminals, but the public defenders that represent the accused help protect the rights that all of us enjoy, and are the last line of

defense for the wrongly accused.