West Palm Beach Criminal Lawyer Blog : Ronald Chapman: West Palm Beach Criminal Lawyer | Florida Criminal Attorney: DUI, Assault & Battery, Felonies | Criminal Law Firm

          In 2006, political commentator Rush Limbaugh was charged with committing the crime of Withholding Information from a Practitioner.  On May 1, 2006, Limbaugh entered into a Deferred Prosecution Agreement with the Office of the State Attorney.  According to that agreement, the State Attorney's Office agreed to drop his case if he successfully completed the Pretrial Intervention Program.

          Conditions 1 through 10 and condition number 12 are all standard conditions of a deferred prosecution agreement.  Condition number 11, however, is a special condition requiring that Limbaugh pay costs of investigation totaling $30,000.  Moreover, he had to pay that $30,000 within 90 days of signing the agreement.  That is an unusually large amount of money to pay for costs of investigation; but then again, it was Rush Limbaugh whom the police were investigating.  (It is also an unusually short period of time in which to pay such a large sum of money; but then again, it was Rush Limbaugh who was writing the check.)

          Did Limbaugh successfully complete all of the requirements contained in the deferred prosecution agreement including the payment of $30,000?  Apparently so.  According to court documents, the State Attorney's Office dropped his case on November 5, 2007.

• Print
• Comments (1)
• Trackbacks

          It is an all-too-frequent occurrence in Florida's criminal courts that a judge will set a bond in a given case, yet the accused individual continues to remain in jail because he cannot afford to pay that bond.  That is precisely what happened in the case of Stallings v. Ryan which arose in Miami.

          David Stallings actually had two different cases.  In the first case, he was charged with 22 counts of sexual battery on a victim under the age of 12 and 21 counts of sexual battery/engaging in a sex act with a family child under the age of one.  In the second case, he was charged with 30 counts of sexual battery on a victim under the age of 12 and 29 counts of sexual battery/engaging in a sex act with a family child under the age of one.

          Because Stallings was being held in jail without any bond at all, he asked the trial judge to set a reasonable bond.  The judge held a hearing but ordered that Stallings continue to be held without any bond.  Stallings appealed that ruling to Florida's Third District Court of Appeal which, in turn, ordered the trial judge to set a reasonable bond.  In response, the trial judge set a monetary bond for both cases totaling $910,000.

          Stallings then filed a second petition for writ of habeas corpus in which he argued that such a high bond was unreasonable and excessive in light of the appellate court's prior ruling.  The Third District Court of Appeal once again agreed with Stallings and this time ordered that the trial judge set a reasonable bond of no more than $100,000.  In so doing, the Third District Court stated that "the law is well-settled that excessive bond, depending on the financial resources of the defendant, is tantamount to no bond at all.  Based on [Stallings's] financial resources, the bond set was clearly excessive and tantamount to no bond.  Furthermore, in light of [Stallings's] proven strong ties to the community, compliance with prior court orders, and ownership of residential property, which can be used as collateral for a reasonable bond, the present bond amount [of $910,000] is unwarranted."

• Print
• Comments (1)
• Trackbacks

          In the case of New Jersey v. T.L.O., the United States Supreme Court stated that "[u]nder ordinary circumstances, a search of a student by a school or other school official [is permitted] when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school."  However, in the case of A.H. v. State of Florida, the Fifth District Court of Appeal stated that the prosecution is still "required to elicit specific and articulable facts which, when taken together with rational inferences from those facts, reasonably warrant the intrusion."  If the prosecution cannot present such facts, then the evidence should be suppressed.

          In the case of A.H., a physical education teacher named Matthew Koff was selling a uniform to a student whose initials were "A.H."  (Initials rather than names are used in appellate cases when reference is made to a minor.)  According to Koff, A.H.'s speech was slurred, and Koff could not understand A.H. so he asked him to repeat his name several times and even to spell it.  Feeling that something was not right, Koff voiced his concerns to the assistant principal who immediately took A.H. to an empty office along with a police officer.  The assistant principal asked A.H. to empty his pockets.  When A.H. produced his wallet, the assistant principal opened it and found what turned out to be marijuana.

         The Fifth District Court of Appeal ruled that this search was illegal and that the marijuana should therefore be suppressed because Koff had merely a "gut feeling" that something was wrong while the assistant principal and police officer had no problem understanding A.H.

• Print
• Comments
• Trackbacks

          On March 4, 2008, I wrote an article on this blog entitled "Are the Police Allowed to Lie to Get You to Confess?"  I answered that question by saying, "[Y]es, the police are allowed to lie to you to get you to confess.  The law in Florida is that the use of tricks or factual misstatements by the police do not by themselves make a confession involuntary."

          Although that was a correct statement of the law, there are, nevertheless, interrogation techniques which the police are not allowed to use in obtaining evidence from a suspect. 

          For example, in the case of State of Florida v. McCord, a Detective Cahir focused his attention on a person named Foskie McCord as being a possible suspect in several armed robberies in Palm Beach County, Florida.  While McCord was in jail on unrelated charges, Cahir met with him, gave him Miranda warnings, and told McCord that he was a suspect in a rape case.  He also convinced McCord to provide him with a DNA sample by telling him that such evidence would prove whether or not he committed the rape.

          The problem with all of this was that there was no rape!  Cahir made that up in order to trick McCord into giving him a DNA sample so that he could compare that sample with a sample of DNA that was found at the scene of one of the robberies.  In addition, Cahir never mentioned to McCord that he was a suspect in any armed robberies.

          After McCord was charged in the robbery cases, he filed a motion to suppress the DNA evidence on the ground that his consent was involuntary and obtained in violation of his due process rights because Cahir used deceitful tactics to acquire it.

          The trial judge who head the motion agreed with McCord and suppressed the DNA evidence.  However, the State Attorney's Office appealed the judge's decision to Florida's Fourth District Court of Appeal--which also agreed with McCord and suppressed the DNA evidence!

          The Fourth District Court began its analysis by noting that in the case of Schneckloth v. Bustamonte the United States Supreme Court stated that a warrantless search does not violate the Fourth Amendment to the U.S. Constitution if the search is conducted pursuant to a freely and voluntarily-given consent.  However, said the Fourth District Court, such consent can be rendered involuntary if an interrogating officer makes misrepresentations regarding the nature of the investigation.  The Court also observed that insofar as confessions are concerned, "the use of police trickery may result in the exclusion of the confession depending upon the level of trickery employed." 

          According to the Fourth District, a "critical factor" in Mr. McCord's case was whether Cahir's deception undermined the voluntariness of McCord's consent.  In concluding that Cahir's deception did indeed undermine the voluntariness of McCord's consent, the appeals court found it particularly troubling that the detective made up the rape charge in order to obtain McCord's DNA.  The Court distinguished this case from those cases cited by the Attorney General's Office in which the police used trickery but did not make up stories about nonexistent crimes.

• Print
• Comments
• Trackbacks

         You have probably seen police roadblocks when you were out driving your car, and you may have even been stopped at one, but did you know that before the police are allowed to actually set up a roadblock they are first required to prepare written guidelines so that the officers conducting the roadblock do not violate motorists' rights by, for example, stopping motorists because of their race or ethnicity?

          In the case of State of Florida v. Jones, the Florida Supreme Court stated that "[w]ritten guidelines should cover in detail the procedures which field officers are to follow at the roadblock.  Ideally, these guidelines should set out with reasonable specificity procedures regarding the selection of vehicles, detention techniques, duty assignments, and the disposition of vehicles."  According to the United States Supreme Court decision in Brown v. Texas, when the police stop someone and that stop "is not based on objective criteria, the risk of arbitrary and abusive police practices exceeds tolerable limits."

          Seven years after the Jones case was decided, the case of Campbell v. State of Florida arose.  In the Campbell case, the Jacksonville Florida Sheriff's Office set up a roadblock to check for traffic violations.  The only written instructions for implementing the roadblock stated merely, "Stop motorists on Mandarin Rd. for a traffic safety check.  Have a motorcycle [with] radar on each end of check to monitor speed."  In addition to the written instructions, the officer in charge of the roadblock gave oral instructions to the officers who actually stopped the motorists.  One of the oral instructions was to stop every car passing through the roadblock.

         Things did not, however, go exactly according to plan.  Several times during the five-hour roadblock, traffic backed up which created a safety concern.  In response, the officers on scene used their discretion on different occasions to simply waive some cars through the roadblock while continuing to stop and check others.

          One of the motorists who was stopped was a man named Phillip Campbell.  When the police discovered that Campbell had a suspended driver's license, he was arrested and taken to the county jail where the police found cocaine and marijuana in one of his socks.  Campbell's lawyer later filed a motion to suppress requesting that the judge suppress the narcotics found in his sock because the roadblock violated the Fourth and Fourteenth Amendments to the United States Constitution as well as the Jones decision.

          Campbell's case eventually reached the Florida Supreme Court, and that Court ended up siding with Campbell finding that "the limited police directives used here do not limit police discretion and fall short of the discretion-limiting written set of uniform guidelines specifically required by us in [the Jones case]."  The High Court continued on to say that "[i]n this country, the police are not vested with the general authority to set up 'routine' roadblocks at any time or place.  Rather, law enforcement was placed on notice by our holding in Jones that the stopping and detaining of a citizen is a serious matter that requires particularized advance planning and direction and strict compliance thereafter."

• Print
• Comments (2)
• Trackbacks

          Sometimes a person will be arrested, yet the case never actually goes to court either because the police do not file the case with the State Attorney’s Office or because the State Attorney’s Office decides not to prosecute the case. When that happens, there is a procedure whereby an individual can request that the Florida Department of Law Enforcement administratively expunge the arrest record.  That procedure is discussed in my article entitled "How to Get Your Criminal Record Administratively Expunged."

• Print
• Comments
• Trackbacks

          In May 2004, the Federal Bureau of Investigation (FBI) arrested Brandon Mayfield, a lawyer, as a material witness in an investigation of terrorist attacks on commuter trains in Madrid, Spain.  The FBI Laboratory maintained that Mayfield's fingerprint was found on a bag of detonators in Madrid that was connected to the attacks.  Two weeks after Mayfield was arrested, the Spanish National Police advised the FBI that it had identified another individual named Ouhnane Daoud as the source of the fingerprint.  After the FBI examined Daoud's fingerprints, it realized that it had made a mistake and released Mayfield from custody.

         Following this misidentification of Mayfield, the Office of the Inspector General (OIG) investigated the causes of the misidentification and issued its written conclusions.  The OIG identified the following six primary causes of error:

          1.  Although Mayfield and Daoud did not have identical fingerprints, they did, nevertheless, have very similar-looking prints;

          2.  After the FBI found as many as 10 points of unusual similarity between Mayfield's fingerprint and the fingerprint located on the bag of detonators, "the FBI examiners began to 'find' additional features in [the fingerprint on the bag] that were not really there, but rather were suggested to the examiners by features in the Mayfield prints.  As a result of this process, murky or ambiguous details in [the fingerprint on the bag] were erroneously identified as points of similarity with Mayfield's prints."

          3.  The FBI fingerprint examiners "apparently misinterpreted distortions in [the fingerprint on the bag] as real features corresponding to [extremely tiny details] seen in Mayfield's known fingerprints."  Thus, whereas error #1 had to do with comparatively large fingerprint details, error #3 had to do with extremely tiny details.

          4.  FBI fingerprint examiners are taught to adhere to the "one discrepancy rule" according to which "a single difference in appearance between [an unknown] print and a known fingerprint must preclude an identification unless the examiner has a valid explanation for the difference."  In Mayfield's case, the examiners failed to adhere to this rule when they accepted an "extraordinary set of coincidences" and "cumulatively required too many rationalizations to support an identification with the requisite certainty."

          5.  As noted in error #2 above, the FBI found as many as 10 points of unusual similarity between Mayfield's fingerprint and the fingerprint located on the bag of detonators.   "However, the limited clarity of [the fingerprint on the bag] prevented the examiners from making an accurate determination of the type of many of these points (that is, whether they were ending ridges or bifurcations)."

          6.  Although the Spanish National Police advised the FBI on April 13, 2004 that the fingerprint on the bag of detonators did not match Mayfield's prints, the FBI nevertheless arrested Mayfield more than three weeks later on May 6, 2004.  In what is certainly an understatement, the OIG concluded that "the FBI Laboratory's overconfidence in the skill and superiority of its examiners prevented it from taking the [April 13 report] as seriously as it should have."  According to the OIG, what the FBI should have done was:

• Determine precisely why the Spanish National Police examiners believed that Mayfield's fingerprints did not match the print on the bag before arresting him; and

• Have a new FBI examiner examine the fingerprint on the bag in order to verify whether or not it was Mayfield's.

           In reviewing the OIG's report, the two things that stand out to me the most are:

• The fact that the six errors discussed in this article were committed by not just one person but by four people including:  a fingerprint examiner with the FBI Latent Print Unit, a second FBI Latent Print Unit examiner, a Unit Chief in the FBI Latent Print Unit, and an independent expert appointed by the judge to review the FBI's fingerprint identification.

• The fact that the FBI arrested Mayfield, searched his home and office, and took items from those two locations three weeks after being told by the Spanish National Police that Mayfield's fingerprints did not match the print on the bag of detonators.

• Print
• Comments (3)
• Trackbacks

          The following article appeared in the New York Times earlier this week:

          In an age of advanced forensic science, the first step toward ending Kenneth Reed’s prolonged series of legal appeals should be simple and quick: a DNA test, for which he has offered to pay, on evidence from the 1991 rape of which he was convicted.

          Louisiana, where Mr. Reed is in prison, is one of 46 states that have passed laws to enable inmates like him to get such a test. But in many jurisdictions, prosecutors are using new arguments to get around the intent of those laws, particularly in cases with multiple defendants, when it is not clear how many DNA profiles will be found in a sample.

          The laws were enacted after DNA evidence exonerated a first wave of prisoners in the early 1990s, when law enforcement authorities strongly resisted reopening old cases. Continued resistance by prosecutors is causing years of delay and, in some cases, eliminating the chance to try other suspects because the statute of limitations has passed by the time the test is granted.

          Mr. Reed has been seeking a DNA test for three years, saying it will prove his innocence. But prosecutors have refused, saying he was identified by witnesses, making his identification by DNA unnecessary.

• Print
• Comments
• Trackbacks

          In the case of United States v. Francis, the U. S. Court of Appeals for the Eleventh Circuit stated that the defense of entrapment consists of the following two elements:

          1.  Government inducement of the crime; and

          2.  A lack of predisposition on the part of the defendant to commit the crime.

          But what exactly constitutes "inducement," and what constitutes a "lack of predisposition"?  It was these two issues that the Eleventh Circuit Court of Appeals addressed in the Francis case.

           In that case, Henry Francis and another individual named Green were originally arrested for selling crack cocaine.  Francis then decided to hire a Jamaican named "Mauler" to kill the prosecutor, the investigating officer, and a confidential informant.  Francis later changed plans and decided to have some friends of his who were located in Jamaica carry out the murders.  Francis asked Green to help him acquire passports for the Jamaicans.  In an effort to help himself out with the U.S. Attorney's Office, Green told the F.B.I. what Francis had asked him to do.  Green also gave Francis the telephone number of an individual who was actually an undercover detective named Archie.  Green told Francis that Archie had provided Green with false documents in the past and that he might be able to help Francis obtain the passports he needed.

          Over the next two months, Francis and Archie had approximately twenty telephone conversations during which Archie agreed to provide Francis with four passports costing a total of $2,000.00.  Archie also offered to provide the Jamaican assassins with guns. 

          As a result of his conversations with Green and Archie, Francis was eventually charged with and convicted of conspiring to murder a federal official engaged in the performance of his official duty as well as murder for hire.  On appeal, Francis argued that the prosecution did not prove that he was predisposed to commit murder.

          The Eleventh Circuit rejected Francis's argument for the following reasons:

• It was Francis who first brought up the subject of murdering the three individuals;

• It was Francis who attempted to hire Mauler to carry out the assassinations;

• Before Francis was introduced to Archie, Francis contacted the Jamaicans about performing the murders;

• Francis asked Green to get passports for the Jamaicans; and

• Francis asked Green to take pictures of one of the intended targets if he were released on bond.

          The Eleventh Circuit Court of Appeals concluded by stating:

          "The evidence supports the conclusion that the government did not implant in Francis's mind the disposition to murder [the three individuals].  Although Green and Archie assisted Francis, and Archie offered his services as an assassin, the government did not initiate the assassination plot.  Rather, the government merely provided Francis with a method of accomplishing the crime.  The fact that [government agents] merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution.  Artifice and stratagem may be employed to catch those engaged in criminal enterprises."

• Print
• Comments
• Trackbacks