Standing your Ground in Florida

Posted on May 17, 2012 by admin

While the ongoing conversation on this topic could be helpful..if we decided not to knee jerk and politicize this thing…that appears unlikely.

What gets lost in the discussion are a few points:

1)The Stand Your Ground law…is really a complete self defense law that just happens to have a “stand-your-ground” element to it. Most people successfully using self defense could not have gotten away without using violence..they do not use the  stand your ground provision of the self defense statute.

2)The only part of the newer provisions to the self defense law that so far has impacted the George Zimmerman case is the part that dictates law enforcement cannot arrest if there is basis for self defense at the scene and that a Judge will need to sign a warrant in that case. If he was on the ground being beaten, unless he put an hand on Trayvon Martin first, would not be standing your ground – just old fashioned self defense.

3) As soon as a judge determines that a defendant was the aggressor, any attempt at dismissing the case will fail, and a jury will be told at trial that if the defendant is the aggressor they may discount the stand your ground provision. It is more complicated than that, but ultimately this defense is failing in lots of cases where the defendant attacks first.

Let the conversation continue.

Diana

Posted in Criminal Law FAQ, Martin / Zimmerman, Murder Cases, Self Defense, Uncategorized | Tagged , , | Leave a comment

Speedy Trial, Do You Want That?

Posted on May 10, 2012 by admin

Everyone charged with a misdemeanor in Florida has a right to a jury trial within 90 days, a felony in just short of six months. It gets complicating determining when that clock starts ticking, but if you are arrested at the scene, that is when.

If the trial does not start in that time frame, the defense files a motion – and then the state has a recapture period of a few days to get the trial started. If no trial starts, another motion can get the case dismissed. BUT – none of this applies if the accused as waived his right to speedy trial.

The problem is that usually the first court date, or arraignment , is many weeks after arrest…and that starts the prosecution obligation to turn over evidence. This means the defense lawyer could be forced to go to trial without knowing everything – because the judge is going to keep the case on the docket if “speedy is not waived”. This is how most cases end up waiving speedy.

The trick is knowing enough about the case to make an intelligent decision about whether to waive this right…for example if you know a critical witness is out of country or has fled without the prosecution knowing. If there is some way to convince the Judge that the prosecution has not done what they were supposed to, not given discovery timely..well, then you can have your cake and eat it to – the continuance that does not waive speedy rights.

Even when speedy has been waived, as it usually is..filing a demand for speedy after the defense is ready for trial will give the prosecution just 60 days to get their act together and start the trial. This can be used anytime and give a way to get things on the fast track.

Diana

Posted in Being Accused, Criminal Law FAQ, The Trial Process, What Can Be Done | Leave a comment

What should I do if there is Injunction filed against Me?

Posted on April 30, 2012 by admin

Injunctions are often filed after that “last fight”,  the one that really means the end of the relationship, and unfortunately – not on a good note.  Often the injunction process is used exactly the way it should be – but sometimes it is used for spite, or vengeance, or to get the upper hand in a divorce case.

If there is a temporary injunction against you and also criminal charges, call a lawyer. The biggest mistake people make is going to this injunction hearing alone and then having testimony during that hearing used  in the criminal case.  You are being  recorded. You may not intend to say anything incriminating, but once the Judge starts talking it is easy to get flustered and end up saying too much.

Injunctions can be fought, even if you cannot say anything because criminal charges are against you, your lawyer can. This means they can question the person trying to get the injunction, and that can really help you fight the injunction and also maybe in your criminal case.  The person asking for the injunction must prove the allegations, and often judges are not convinced if it is a  he said / she said situation, especially if an impending divorce explains the reasons to lie.

If there will be a divorce or paternity case being opened, sometimes the injunction can be put off to deal with those issues in the other case. Not having an injunction protects you against false allegations of violation, and also makes child contact more practical.

Having any court order that may make you look bad in other proceedings is not what you want, and having a lawyer is the best way to protect your court room reputation.

Diana

 

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Understanding Standing Your Ground / Self Defense in Florida

Posted on April 26, 2012 by admin

Diana and Greta Vansusteren discuss Self Defense in Florida

There is a lot of discussion about whether Florida’s seven-year-old “Stand Your Ground” self-defense law will lead – or had led – to injustice in the Trayvon Martin / George Zimmerman case.  The “stand your ground” part of the law says if Zimmerman was  attacked by Martin, he had the right to meet force with force, including deadly force if that was reasonably necessary to avoid serious harm or death, without making any attempt to get away from the situation.

This does away with the old requirement that if you could turn tail and run – getting away from the attack, you needed to do that first. If George Zimmerman’s claims are proven true he was on his back on the ground at the time of the attack and retreating was not an option, the change to the law may have no effect in this case because he will argue he could not have retreated anyway.

No part of self defense applies if you are the aggressor, unless the force being used against you can reasonably lead to death or serious harm and you don’t have a way to escape…this provision may or may not apply in the Martin/Zimmerman case. Finally, the law states that law enforcement was not authorized to arrest in this situation, without specifically finding evidence against a self defense claim, which certainly seems to have come into play.

Time will tell what the actual evidence is. Did Zimmerman call of the “hunt”? Was he ambushed? Was that nose really broken? More questions than answers for the moment.

Diana

Posted in Criminal Law FAQ, Martin / Zimmerman, Murder Cases, Self Defense, Uncategorized | Tagged , , , , , , | 2 Comments

Why wasn’t I invited to the Black Town Hall Meetings?

Posted on April 24, 2012 by admin

And by I, what I mean is “every single lawyer in this town who has fought racial inequality in the criminal justice system”.  Some of us for many years. Decades for myself.

A lot of effort to put into ending the career of one police chief. When they swoop back out of town, what will have been accomplished really?

The real systemic bias will remain untouched..and by that I mean the actual Profiling ..the kind done by law enforcement every day. The actual targeting, over-charging, over- prosecuting, and over-sentencing that leads us to a situation in Florida where more than 50% of death row inmates are black men. Blacks make up about 16% of our population. This disparity points to a long standing, pernicious, and entrenched problem. Kicking one police chief out and railroading a ridiculously over-charged Hispanic is not going to change a thing.

We have REAL racial problems. You must get the attention of the entire community..and the current rhetoric is not playing in Lake Mary or most places that are not Eatonville…and it is not their fault that the voices are strident and oft times irrational.  Get together the people in central Florida who have been fighting this for years,  like the elected Public Defenders, criminal defense lawyers, juvenile justice workers; the front line that understands the result of our racial bias in a system that punishes, ostracizes, and labels for a life time.

I may not be black. but I would put my career in fighting racism in a meaningful way up against most of the local black lawyers who have taken to the bully-pulpit on the Martin/Zimmerman tragedy. Let’s see what they are doing in two years, five years, ten years. I will still be fighting racism in our criminal justice system.

Diana

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Wouldn’t Stand Your Ground apply to Both Martin and Zimmerman?

Posted on April 24, 2012 by admin

The Stand Your Ground law may or may not apply to the self-defense claim in this case. It seems possible that mutual misunderstandings of intent may have gone on that night. Zimmerman, based on experience and a sense of over-zealous “heroism” thought Martin was doing something he was not. Although there are allegations that Zimmerman was actively pursuing Martin when the physical altercation started, I have not seen any actual evidence. If Martin misperceived Zimmerman’s intentions and reasonably decided to “attack” preemptively, leading to Zimmerman pulling his gun for the first time in fear of death..you could have a situation where both were technically permitted to take violent action. Martin because he had a right to stand his ground, and Zimmerman because he could not flee the more successful attack of Martin.

While it is true that the aggressor cannot take advantage of self defense, IF the aggression (following) had stopped OR if the physical aggression Martin used was the first physical aggression and beyond necessary to avoid harm, and if Zimmerman had not way to get away and was reasonably in fear he would die..well all of those facts will play out and have an effect.

Those few minutes after the dispatch call and prior to the shot will be critical, and every bit of evidence available important.

Diana

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Who Will Your Witnesses Be?

Posted on March 25, 2011 by admin

Who should you call as witnesses at your trial? There are two kinds of witnesses usually:

1)Fact witnesses, people who were there to tell your side of what happened, or who were with you across the county from where the crime took place. These witnesses from the beginning should be asked to write down everything they remember so they can use those notes to refresh themselves months later for trial. You will need to provide contact information to your lawyer also.

2)Reputation evidence. This one is tricky, and many lawyers don’t understand it very well. In Florida, you cannot call a witness to say you are a good person..but you can call a witness who knows you from a relevant “community” about your “reputation for honesty” if you have testified. They may be able to testify about your “reputation” for peacefulness or other characteristics that are relevant. A “community” can be a neighborhood, a place of employment, a church or school community or other defined group. “Reputation” means that they know you and other people who know you and that you have a reputation for this trait. These witnesses need to talk to your lawyer before they testify, because it is a strange way to talk about someone that will not come naturally to them.

Usually it is a good idea for your lawyer to talk to all witnesses before they are listed as witnesses, so that if they are deposed or the prosecutor calls them they understand the areas of testimony expected…the worst thing ever is calling a witness you assume is going to help your case and have them accidentally hurt it!

Diana

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Casey Anthony : When the Circus Comes to Town I

Posted on March 22, 2011 by admin

Where are these poor poor jurors going to be shipped in from? I want to put this prediction out there. I am not sure why there are not more five dollar pools going on over this issue.     I hope Belvin is not reading the blogs, because I don’t want a last minute change just to spite me..naw, he wouldn’t do that.

My bet is …..drumroll……West Palm Beach. Here’s why:

1)Baez asked for Miami…so giving him West Palm is sooooo close he could not complain about anything an appellate court would care about.
2)We have a history of sending change of venue murder trials to West Palm (I did a change of venue cop shooting case there myself) and so all of the legwork and infrastructure to do a swap is in place.
3) It is close enough to minimize the cost of travel (vs. say Pensecola., my number 2 bet just because it is the “I -am-just-going-to-do-it-as-far-away-as-possible” choice.)

If I am right, this would be an accidental, but still an advantage for the defense. Which brings me to:

4) A more educated “liberal” jury means less likely to convict with weak evidence and less likely to vote for the death penalty…taking the judge off the hook from making that decision. The law will force him to give her life even if the jury wants death (future posts on that) and he is not gong to relish telling the public that.

Just one woman’s opinion, of course.

Diana

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The Emotional Side to Being Accused

Posted on March 20, 2011 by admin

There are just some things in life that are meant to be lived through. Being accused of a crime is one of them. Even if it did not hit the six o’clock news it feels like everyone knows, and is judging. But just like those horrible moments in high school that felt like public humiliation  it turns out no one knew about, often this is the same. People generally only care about themselves and their own problems. Your neighbors have their own skeletons, rest assured. That look you got at the mail box was much more likely about not knowing what to say – or, thinking about how they went through something similar, than it is about you being drummed out of the HOA. Some thoughts that might help:

* You were looking for a way to figure out your true friends anyway, right? Your true friends will stick with you, will return your phone calls, and will let you cry on their shoulder about this scary situation. You don’t need them if they can’t handle this.

* Don’t clam up. You cannot and should not talk about the facts of the case, but you should reach out to trusted friends and relatives to talk about your feelings, don’t bottle this up – it will only sap the strength you are going to need down the road. Shit happens. Don’t act ashamed and people will not put shame on you.

* If you have no one in your world that can be your shoulder during this time, invest in a counselor..keeping feelings inside will just eat at your soul and impair your health…and you are going to want both to be in good shape when this is all put behind you.

Diana

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Injunctions 101

Posted on March 19, 2011 by admin

Wow did I sit through the most amazing, horrifying, long day last week. I was there with a client (baby’s daddy), fighting a permanent injunction by -you guessed it- baby’s momma.

I learned a lot sitting through the five cases ahead of ours. One thing is that there are people in the world who drink vanilla extract as their alcoholic beverage of choice. It got weirder from there.  None of the permanent injunctions being asked for that day were granted. There is something wrong with that. The Judge was following the law. There is nothing wrong with the law. The “wrong” part is that people think that this system is out there to deal with irritating people, scary people, or people that they no longer love or want to live with.

Permanent Injunctions are supposed to be difficult to obtain..parenting or divorce issues are supposed to be taken care of in divorce and family courts. To get a permanent injunction you will have to prove to the judge that you have a reasonable fear of imminent physical harm. The rules of evidence mean that you won’t usually be able to repeat what anyone else has told you.

There will need to be either an act of violence, or an actual threat of violence….in a hearing I watched last week, the wife of a troubled alcoholic husband who destroyed the family car in anger while she was out of town did not get an injunction.

As always, reasonable expectations mean you are not wasting your money going to court..or doing anything to hurt your other family law case. Also, knowing you have to prepare a very good case will ensure you don’t regret not pulling out the stops after losing your hearing.

Diana

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