Jury Selection - Striking for Cause

An interesting jury selection decision here in Florida was published yesterday in: ERNEST LARON BLAKE, Appellant, v. STATE OF FLORIDA, Appellee. 1st District. Case No. 1D12-1385. Opinion filed April 8, 2013.

The Court there held that it was an error to grant, over defendant's objection, state's challenge for cause as to prospective juror who indicated that he was engaged to a public defender in a different circuit where, although juror acknowledged that fiancee talked to him about the types of cases she worked on, juror indicated he would have no problem finding a person guilty if the evidence supported such a result.

The Court further held that the error not harmless, although state still had an unused peremptory challenge that could have been used to strike this juror.

From a procedural standpoint, it is important to object not only at time of striking, but also before the panel is sworn in as a whole in order to preserve the objection for appeal (as this lawyer did here).  As a result of this attorney's diligence the instant conviction was overturned on appeal. and remanded for a new trial.

Should you be in need of an attorney or be representing yourself pro se, remember that jury selection may be better conducted by a competent criminal defense attorney.

Florida v. Jardines

Florida v. Jardines (argued before the U.S. Supreme Court) resulted in a huge drug law/criminal defense/protection of our civil liberties victory today.  Justice Scalia upheld the Florida Supreme Court's decision holding that a dog sniff on private property implicates the fourth amendment. 

The basic premise is this: The Police took a drug-sniffing dog to Jardines’ front porch, where the dog gave a positive alert for narcotics. Based on the alert, the officers obtained a warrant for a search, which revealed marijuana plants; Jardines was charged with trafficking in cannabis. The Supreme Court of Florida approved the trial court’s decision to suppress the evidence, holding that the officers had engaged in a Fourth Amendment search unsupported by probable cause.  The US Supreme Court thereafter upheld the decision of the Florida Supreme Court.

What does this mean?: The 'curtilage' around one's house is entitled to the same protection as one's home.  The police may still approach one's property in order to speak to you, but a search with a drug dog exceeds the permitted social norm and is therefore, a search.

Such situations require the experience of a criminal defense attorney.  Should you find yourself in a like situation, contact a lawyer immediately.

Supreme Court Hears Equal Protection Argument for and Against Gay Marriage

While this blog is predominantly focused on criminal litigation, today the U.S. Supreme Court in Hollingsworth v. Perry will hear argument for and against Gay Marriage.

The question before the Court is whether the "Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman."  This should be an exciting day in the Supreme Court.  Thereafter, on Wednesday the Court will hear argument in US v. Windsor in order to determine whether section three of the Defense of Marriage Act violates the fifth amendment's equal protection of law guarantees.

Both of these issues are fundamental in determining where gay rights will proceed hereafter.  Decisions can be found on the Supreme Court Website here.

As always, should your rights be violated contact us. 

Criminal Court Hearing Dates and Clerk Services

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Most recently I had an issue arise with a client concerning a hearing date which was listed on the clerk's docket, but we (the state attorney and myself) had already addressed.

What do you do in this situation if you think your case has been resolved however the court's docket is not reflecting the same?

You contact your attorney.  The attorney will likely get in touch with the ASA (assistant state attorney) on the file and will attend the hearing (likely arranging for your lack of presence before the court) and prevent a larger problem from potentially occurring down the road.

Think of the converse scenario: you do nothing about it.  What will happen.  Perhaps nothing will happen because the judge recalls that your case was disposed of.  However, perhaps he or she (through the course of 1000s of names and faces every day) will forget that you were ever there and will issue a bench warrant for your arrest.  Perhaps even worse you are charged with violating your probation and put back in jail until such time as the court can sort the issue out.

Better safe than sorry.  Call your attorney.  If you do not have counsel or have been charged with a criminal matter, contact our offices: The Law Office of Robert J. Lee, P.A. at 305-322-9971.

MIRANDA WAIVER

You may or may not be following the Dennis Escobar trial involving the shooting of a Miami Dade Police Officer during a traffic stop back in 1988, but if you are you know that a significant ruling was pronounced concerning Miranda Waiver.

Almost everyone knows that they have a right to remain silent.  What they don't know, as Mr. Escobar apparently did not either back in 1988, is that you can invoke your right to remain silent and thereafter, retract that invocation.

What does that mean to you?  That means you need not say ANYTHING to the police after you invoke your right to remain silent.  If you want an attorney, ask for one and STICK TO it.  Do not volunteer a statement later on (even after invoking your right to remain silent) as by reengaging the police or investigators you may have effectively waived your right to council.


If you are in need of defense council, do not hesitate to contact our office at 305-322-9971.  We now have two locations in Downtown Miami and Coral Gables to better serve your needs.  You may also visit our website at www.themiamidefender.com for additional information.

If you want to read more about the Escobar trial, follow the link below.

Judge: Jurors can hear about confession in killing of Miami officer - Miami-Dade - MiamiHerald.com

Family law

This week, The Law Office of Robert J. Lee, P.A. expanded its practice to include family law. While Its founder, Mr. Lee has experience in civil litigation and family law, not until recent were cases outside criminal litigation accepted. As such, please contact us with all of your family law, divorce, child support, alimony, and estate planning needs.

FLORIDA CIVIL THEFT

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While my practice is predominately criminal I started in civil litigation and an area that I really think can help people in terms of prompting wrong-doers attempting to separate them from their money and/or services is the "Florida Civil Theft" Statute.  The Statute states as follows:

772.11 Civil remedy for theft or exploitation.—

(1) Any person who proves by clear and convincing evidence that he or she has been injured in any fashion by reason of any violation of ss. 812.012-812.037 or s. 825.103(1) has a cause of action for threefold the actual damages sustained and, in any such action, is entitled to minimum damages in the amount of $200, and reasonable attorney’s fees and court costs in the trial and appellate courts. Before filing an action for damages under this section, the person claiming injury must make a written demand for $200 or the treble damage amount of the person liable for damages under this section. If the person to whom a written demand is made complies with such demand within 30 days after receipt of the demand, that person shall be given a written release from further civil liability for the specific act of theft or exploitation by the person making the written demand. Any person who has a cause of action under this section may recover the damages allowed under this section from the parents or legal guardian of any unemancipated minor who lives with his or her parents or legal guardian and who is liable for damages under this section. Punitive damages may not be awarded under this section. The defendant is entitled to recover reasonable attorney’s fees and court costs in the trial and appellate courts upon a finding that the claimant raised a claim that was without substantial fact or legal support. In awarding attorney’s fees and costs under this section, the court may not consider the ability of the opposing party to pay such fees and costs. This section does not limit any right to recover attorney’s fees or costs provided under any other law.

(2) For purposes of a cause of action arising under this section, the term “property” does not include the rights of a patient or a resident or a claim for a violation of such rights.

(3) This section does not impose civil liability regarding the provision of health care, residential care, long-term care, or custodial care at a licensed facility or care provided by appropriately licensed personnel in any setting in which such personnel are authorized to practice.

(4) The death of an elderly or disabled person does not cause the court to lose jurisdiction of any claim for relief for theft or exploitation when the victim of the theft or exploitation is an elderly or disabled person.

(5) In a civil action under this section in which an elderly or disabled person is a party, the elderly or disabled person may move the court to advance the trial on the docket. The presiding judge, after consideration of the age and health of the party, may advance the trial on the docket. The motion may be filed and served with the civil complaint or at any time thereafter.

 

This statute essentially states that should someone have "defrauded" you of an asset/money(s) which is/are rightfully yours, you may send a letter containing the aforementioned verbiage from the statute (cited above) via certified mail (return receipt requested) and should said party NOT return your money(s) owed within the 30 (thirty) day period proscribed by the statute, you may thereafter file suit for triple the amount owed, attorney fees, and costs.

 

This statute helps to avail those wronged by a party who may otherwise have no incentive to return expropriated money as it carries the weight of potentially paying TRIPLE.  Should you desire to further explore the potential for treble damages in your case contact our office and we can set up a free initial consultation.