Trayvon Martin: A Child is Dead.

No matter what happens in this case a child is dead. He is dead because an individual is claiming he was acting in self-defense when he shot and killed Trayvon Martin. Not only do you have a dead child, but you also have a community that is outraged; when that child was killed no immediate action was taken by the police, and as a result the State Attorney's Office has not been able to open a case against Mr. Zimmerman. Currently, there is an ongoing investigation about the shooting and it will be sent to a grand jury to see if there is enough evidence against Mr. Zimmerman to proceed.

This is a situation that can get out of control very quickly if the appropriate action is not taken in a reasonable time period.  The city of Sanford has been, and will continue, to face tough scrutiny if appropriate measures are not taken.

How would you feel if your child was killed and the person who was responsible for the shooting is walking free?

To serve and protect? Kelly Thomas?

As with any public servant the pay is no good, the hours are long, and the appreciation is little to none.  An overwhelmingly majority of police officers, firefighters, teachers, etc. are good individuals who genuinely enter their profession with nothing but the best intention.

However, the case of Kelly Thomas shocks the conscious of what police should do and is a picture of exactly the opposite of have nothing but the best intention.  (see: video  Graphic http://www.youtube.com/watch?v=1ljYNgLnpxM) I was never a police officer and I have no doubt they have one of the toughest jobs, but they have to handle there jobs with a certain discretion. Mr. Thomas was beaten so badly, not by 1 or 2 or 3 police officers, but by a total of 6 according to reports. Six police officers against one man that included beating and tasering. In the end, Mr. Thomas, a 37 year old schizophrenic man, was beaten and tasered to death. ( see article: http://www.dailymail.co.uk/news/article-2019225/Police-beat-taser-gentle-mentally-ill-homeless-man-Kelly-Thomas-37-death.html)

No matter what happens in this case the bottom line is a 37 year old was killed. The disgusting part of this is that as Mr. Thomas was slowly being beaten and tasered to death, bystanders could hear him screaming for his father.

Were the police serving and protecting the public as they are sworn to do, or were they under the presumption that they can get away with beating a mentally ill gentlemen without facing any consequences? The police will have to come up with a compelling reason as to why they beat a man to death and why they thought that amount of force was necessary in a six on one battle.

Just Prescribe the Dro?

Pop Culture

The use and enjoyment of marijuana has been seen and heard through movies and music. It seems that more and more people are “accepting or tolerating” the use of marijuana. From Sean Paul’s big hit in the early 2000s “Just Gimme the Light” (www.allseanpaul.com) to the hit movie “Knocked Up,” (www.imdb.com/title/tt0478311/) the portrayal of marijuana use in the media seems that there are no consequences.  Unfortunately, the songs and movies do not capture the reality of what is the law. Regardless, even if you do not believe it should be a crime, it is still a crime in the State of Florida.

You Can Get Arrested!

Possession of marijuana in the state of Florida is a 1^st degree misdemeanor. Under the Florida Statute 893.13(6)(b) it states:

“If the offense is the possession of not more than 20 grams of cannabis, as defined in this chapter, the person commits a misdemeanor of the first degree…”

The consequence of  being arrested can be a maximum of 1 year jail time and a maximum fine of $1,000. These are serious penalties for possessing a “joint,” but they are real and they can be enforced.

Polls / Reality

According to a 2009 Gallup Poll, “44% of Americans are in favor of making marijuana legal and 54% are opposed. U.S. public support for legalizing marijuana was fixed in the 25% range from the late 1970s to the mid-1990s, but acceptance jumped to 31% in 2000 and has continued to grow throughout this decade.” (http://www.gallup.com)

According to www.Procon.org there are 16 states and DC that allow the use of medical marijuana and another 10 or so that have pending legislation. (www.procon.org). As for the State of Florida, possession of marijuana even for “medical use” is still illegal.

The State of Florida has a narrow exception for the defense of using medical marijuana in the 1991 Jenks v. State case.  (to read the case : see http://scholar.google.com/scholar_case?case=10379129612648642905&hl=en&as_sdt=2&as_vis=1&oi=scholarr)

Conclusion

If you decide to use marijuana in the state of Florida you can face harsh penalties. So be safe and be smart!

Arrested? Call Your Bail Bondsman*

Bail Bondsman to the Rescue

Everyone generally knows the phrase after you are arrested call your attorney. However, a few weeks I was at a gathering where veteran judges were speaking and there was an interesting quote by one of the judges; it went something along the lines of, “if you are ever arrested call your bail bondsman because they will post the money to get you out of jail and that’s what counts.”

When this was said I recognized that he had a valid point because after you speak to a client or his family member after an arrest, your initial goal is simply to get the client out of jail and proceed from that point. For many people this concept of getting a bond to get out of jail is something they can only relate to via television. (See: http://www.dogthebountyhunter.com/ )

Bond

When a defendant is charged with an offense the court generally sets a bail bond. (There are some charges where there is no bond until there is a first appearance.) The purpose of the bail bond is twofold. First, it assures the court that the defendant will come back to court for future court dates. Secondly, it allows the accused the freedom to continue his life with limited interruptions until the date of the trial.

Types of Bonds: Cash/Surety

There are generally two types of bonds: a cash bond and a surety bond. A cash bond is the amount that is imposed by the judge. It can be a predetermined amount if there was a bench warrant and the defendant was picked up, or the cash bond amount can be determined after the arrest or at first appearance. After the defendant’s case is finished and any fines or payments that need to be paid come out of the cash bond, the remaining money goes back to the defendant.

A surety bond is a written guarantee by a bond company. Here is an example of one from Moncrief Bail Bonds: (http://www.moncriefbailbonds.net/Moncrief/assets/Files/bail_bond_application.pdf)  A surety bond ensures the defendant will appear at all court dates. A surety bond is an independent agreement between the defendant and the bonding company. Basically, the bonding company is providing the court with an “insurance policy” that the defendant will appear in court and is then liable for the full amount of the bond if the defendant does not appear. (see http://www.dogthebountyhunter.com/) for an example of when a defendant decided not to show up; however, there are no “bountyhunters”  under Florida Statute 648.30 subsection section 2) If the defendant does not show up for court the problems he will face compounds because the bonding company is on the losing end.

Conclusion

Getting arrested is no fun but the ability to bail oneself out and regain some sense of freedom before an actual trial date can be a little weight off his shoulder.

“You Are Under Arrest For………”

Those words can be striking and being placed under arrest can be a scary and confusing experience. Not only is it confusing for the person arrested, but it can be just as scary, if not more, for the family and friends of the person arrested. During this confusion, the person arrested often develops a misconception that the police or state attorney are looking out for that person’s interest. Remember, the police and the state attorney have the goal of solving the case and proving that the arrested person committed the  alleged crime, and they can do whatever they can under the law to assist them in proving their case. Methods of Arrest

There are three ways you can be placed under arrest: (1) through an arrest warrant, also known as a capias; (2) through an officer actually seeing you  “from his/her point of view” commit a crime; or (3) if an officer has cause to believe you committed a crime.

Capias /Arrest Warrant

Under Florida Criminal Procedure Rule 3.121 an arrest warrant shall have the following requirements:

(1) be in writing and in the name of the State of Florida

(2) set forth substantially the nature of the offense

(3) command that the person against whom the complaint was made be arrested and brought before a judge

(4) specify the name of the person to be arrested or, if the name is unknown to the judge, designate the person by any name or description by which the person can be identified with reasonable certainty

(5) state the date when issued and the county where issued

(6) be signed by the judge with the title of the office and

(7) in all offenses bailable as of right be endorsed with the amount of bail and the return date.

Generally, if the elements above are met, a valid warrant exists and the sheriff can execute the warrant.  (However, sometimes a faulty warrant may lead to serious problems for the police. See: http://blog.al.com/spotnews/2011/06/morris_alabama_child_porn_char.html )

Valid Warrants can be a powerful tool for the police in arresting individuals and may limit arguments that a potential defendant may have regarding the “actual arrest.”

An Officer Sees You Commit A Crime

Unlike a warrant, if an officer sees you commit a crime he or she can legally place you under arrest OR he or she can give you a Notice to Appear.

Under Florida Criminal Procedure Rule 3.130, if you are placed under arrest, within 24 hours you will have a First Appearance. Under Florida Criminal Procedure Rule 3.130(b), the judge shall immediately inform the defendant of the charge and provide the defendant with a copy of the complaint. The judge shall also adequately advise the defendant that:

(1) the defendant is not required to say anything, and that anything the defendant says may be used against him or her;

(2) if unrepresented, that the defendant has a right to counsel, and, if financially unable to afford counsel, that counsel will be appointed; and

(3) the defendant has a right to communicate with counsel, family, or friends, and if necessary, will be provided reasonable means to do so.

Also, during the first appearance the Judge generally has a Probable Cause hearing.

Under Florida Criminal Procedure Rule 3.133 (a)(1):

a nonadversary probable cause determination shall be held before a judge within 48 hours from the time of the defendant’s arrest; provided, however, that this proceeding shall not be required when a probable cause determination has been previously made by a judge and an arrest warrant issued for the specific offense for which the defendant is charged.

The judge after a showing of extraordinary circumstance may continue the proceeding for not more than 24 hours beyond the 48-hour period. The judge, after a showing that an extraordinary circumstance still exists, may continue the proceeding for not more than 24 additional hours following the expiration of the initial 24-hour continuance.

Unlike a situation where there is a warrant, the lack of a warrant may give the defendant a better chance of arguing there was an invalid arrest.

Notice to Appear

If you are not arrested by the officer, a ticket will be issued with a Notice To Appear. Essentially, you are free to leave but you MUST appear at the scheduled date or a capias (warrant) may be issued.  Under Florida Criminal Procedure 3.125 (b):

If a person is arrested for an offense declared to be a misdemeanor of the first or second degree or a violation, or is arrested for violation of a municipal or county ordinance triable in the county, and demand to be taken before a judge is not made, notice to appear may be issued by the arresting officer unless:

(1) the accused fails or refuses to sufficiently identify himself or herself or supply the required information;

(2) the accused refuses to sign the notice to appear;

(3) the officer has reason to believe that the continued liberty of the accused constitutes an unreasonable risk of bodily injury to the accused or others;

(4) the accused has no ties with the jurisdiction reasonably sufficient to assure the accused’s appearance or there is substantial risk that the accused will refuse to respond to the notice;

(5) the officer has any suspicion that the accused may be wanted in any jurisdiction; or

(6) it appears that the accused previously has failed to respond to a notice or a summons or has violated the conditions of any pretrial release program.

Under Florida Rules of Criminal Procedure 3.125 (c), if you are placed under arrest then the booking officer may issue notice to appear if the officer determines that there is a likelihood that the accused will appear as directed, based on a reasonable investigation of the accused’s:

(1) residence and length of residence in the community;

(2) family ties in the community;

(2) employment record;

(3) character and mental condition;

(4) past record of convictions; or

(5) past history of appearance at court proceedings.

The Notice to Appear scenario gives the defendant more flexibility in terms of knowing that he is possibly facing charges, and it gives him a chance to be less overwhelmed by the system (i.e. not having to be arrested, taken to jail, booked, seeing a judge and getting released on bond or own recognizant). Furthermore, it provides the defendant time to consult with an attorney, work on the case himself, or even have the possibility of seeking a public defender.

Getting arrested and the days following the arrest  can be confusing and scary for the person arrested and their family members. The most important thing to do is to stay calm and remember you have rights.

Criminal Law and Criminal Procedure- “It Is What Separates Us From The Rest Of The World”

All of those classes I took in the Keene-Flint building ( aka History Building)  at the University of Florida helped shape my belief about duties and obligations of citizens in the United States. However, this was not the only place where I learned and experienced the study of citizenship. During law school I had a chance to see the theory in practice while interning at the State Attorney Office of the Ninth Judicial Circuit as a certified legal intern. The power that prosecutors posses are potent, but this power is generally exercised with great caution.   The beauty of the United States is found in the different perspective that each citizen holds about our country, the government, the state, and the police.  I would venture to say that an overwhelming majority of the population feels we need a government. However, the real debate is how much government do we need or how much government interference in our personal life is acceptable. The word government is a large word, not in the sense of the letters, but in terms of its meaning. The government has several representatives. Those representatives include the president, congress, judges, prosecutors, police officers, teachers, and anyone else who works for the county, state, or the United States.

The 4^th amendment of the United States Constitution states:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The 5^th amendment of the United States Constitution states:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in  jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness  against himself, nor be deprived of life, liberty, or property, without due process of  law; nor shall private property be taken for public use, without just compensation.

The 6^th amendment of the United States Constitution states:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been  committed, which district shall have been previously ascertained by law, and to be  informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

These simple words ( 4^th, 5^th, and 6^th amendments) that were written over 200 years ago are not just words; they are the cornerstone of the United States and they separate us from the rest of the world. In the United States, if you are alleged to commit a crime you are innocent until proven guilty by the government ( ie State Attorney, Federal Prosecutor). When you are charged with an alleged crime you do not have to defend the actions alone. You are afforded a Public Defender if the charges are serious enough, or if you can afford it you can hire private counsel.  Not only are you afforded an individual who has spent years of training in the law, but it is the government’s responsibility to prove elements of a criminal case beyond a reasonable doubt.

If you ever have the luxury of traveling outside the United States you quickly realize the rights we enjoy in the United States are unique and precious. We are fortunate to have a history and a legal system that gives us certain guaranteed rights. Every aspect of our legal system, from police officers all the way to the Supreme Court, has talented individuals who try their very best to uphold the United States Constitution and continue to make the United States a peaceful and respectable country.

Practicing criminal law is a part of who I am. My background in United States and World History, and as a teacher for several years on the subject, has had a tremendous impact on how I see the world. As a classroom teacher I had several students through the years that made a mistake and we learned from their mistake. The most important thing I tried to instill in my students was that EVERONE has made or will make a mistake, but we MUST learn from our mistakes. Sometimes students were wrongly accused of actions they did not commit and not everything we hear or see may give us a full picture of those actions.  I realize not just in a theoretical sense, but also in a practical sense, the laws and the system we have in the United States is unparalleled.  A mistake in the United States will generally not tarnish or ruin your life forever but it should be used as a learning experience. This is why I practice Criminal Law.

“Cruelty to Animals and Domestic Abuse”

Family Law issues and Animal Abuse go hand in hand. Just recently on May 19, 2011, Gary Eugene Denning from Trenton, Florida, located in Levy County, was arrested for domestic battery and cruelty to an animal.  ( Levy County Sheriff Blog: http://levycountysheriffsblog.blogspot.com/ )  The domestic abuse charges stemmed from Mr. Denning getting upset with his brother-in-law over a small dent in Mr. Denning’s vehicle.  After hitting his brother-in-law in the chest and attempting to kick him, Mr. Denning decided to get back at his brother-in-law my directing his anger toward the family pet, a Golden Retriever.

When police arrived at the scene, the blood trail through the house was apparent. Mr. Denning allegedly struck the Golden Retriever with a machete several times severing the dog's spinal cord.  Denning's minor daughter was in the residence when the attack occurred. Unfortunately, the Golden Retriever had to be put down due to the wounds.

This is not the first case, and unfortunately it will not be the last case, where a domestic abuse instance merges with cruelty to the family pet. Not only has this been reported in the media but it has been documented through academia as well. In his article, Battered Women’s Reports of Their Partners’ and Their Children’s cruelty to Animals, Frank R. Ascion reports that a significant number of survivors of domestic violence state that their abusers also harmed, or threatened to harm, the family pet. (see online article at http://www.vawnet.org/Assoc_Files_VAWnet/BWpetCruelty.pdf )

There are several reasons why animals end up getting hurt during family disturbances. One of those reasons is the abuser knows that the victims generally have strong feelings/connections to the pet. As a result, attacking the family pet indirectly hurts the victim and the point is made that the victim could, or more than likely will, be next. Another reason why the family pet is attacked is because the abusers know that the family pet will put up little or no resistance and cannot “contact” the authorities.  The family pet is a voiceless victim and under Florida Statute 828.12, Cruelty to Animals is a third degree felony, which under the Penalties Section, Florida Statute 775.082, carries a maximum sentence of five years and a fine not exceeding $10,000, or both. (http://leg.state.fl.us/Statutes/index.cfm?Mode=View%20Statutes&Submenu=1&Tab=statutes&CFID=210974864&CFTOKEN=3052213)

Although Florida recognizes animal cruelty as a crime, it is separate and distinct from Family Law; however, I feel a argument could be made based on the love families have for their pets and the correlation of animal cruelty to domestic abuse, that cruelty to animals is not as distinct issue as it is perceived to be in the law.  Even though it seems that penalties are harsh for Cruelty to Animals rarely do defendants face real consequences for their actions towards the family pets. I guess only time will tell what the consequences are for Mr. Denning’s alleged actions.