In certain instances, law enforcement can use private individuals to obtain incriminating statements from suspects or defendants who have previously invoked their Miranda rights and who may be in custody without violating the Miranda rule. In fact, this is only one of a myriad of techniques detectives can utilize to obtain a confession or an incriminating admission. Statements made to a person working for the police, the defendant’s wife , fellow inmate in jail, mother, father, a codefendant, alleged victim or someone who the suspect or defendant believes to be a fellow inmate, codefendant or state employee may be used against the suspect or defendant.

However, there are certain limitations placed on government agents using another individual to obtain an incriminating statement from a unsuspecting defendant. For example, if the government promises to give positive testimony, to speak on the informer’s behalf in exchange for information obtained or if the police officer arranges with the jailer to have the informant and the defendant placed in the same cell, may lead to suppression of the incriminating statements.

However, the prosecutor or law enforcement agency cannot avoid the Miranda rule’s constitutional limitations merely by using a private individual as its agent. The examination for determining whether private individuals are agents of the government when interrogating a suspect is whether, in consideration of all the circumstances, the individuals acted as instrument of the state. To determine whether a private individual acts as an instrument of the state when obtaining incriminating statements from a suspect, courts look to (1) whether the government was aware of and acquiesced in the conduct, and (2) whether the individual intended to assist to the police or further his or her own ends. An important factor used by the Courts in determining the admissibility of incriminating statements is if the informer was acting without direction from the state agent in how to go about obtaining the statement(s) or if the informer had been promised anything in return for his obtaining statements from the unwitting defendant.

For many years, criminal defense lawyers in Florida as well as other states are prohibited from telling clients who chose to enter “no contest” or “guilty” pleas anything that may induce the client to enter into a guilty plea that the attorney does not know with certainty. For example, in Florida cases have been reversed when attorneys have told clients they will receive a specific amount of gain time in state prison or county jail. Such knowledge may generally be known by the attorney and may even be accurate. However, such information, like “gain time” is subject to change by the Florida Department of Corrections and/or many variables including the inmates own conduct.

In February of 2013, the United States Supreme Court found that a client’s Sixth Amendment Right to Effective Assistance of counsel applies to the the plea bargaining process. This also means that a defense attorney has a duty to communicate to the defendant formal plea offers from the prosecution that may have favorable terms and conditions. In addition to limitations and obligations on what the attorney may or must communicate to the client, it also means, in a post-conviction Fla. R. Crim. P. 3.850 motion, that a defendant can establish prejudice in a claim of ineffective assistance of counsel based on his or her attorney’s deficient legal advice to reject a plea offer, even though the defendant was later convicted after a full and fair trial.

For more information please contact us at The Law Offices of M. James Jenkins and Associates so we can explain the process in detail.

In many cases, mitigation of a case should begin at the very outset of a case by the lawyer taking a very proactive position immediately upon taking the client’s case. Often times what is done right away by taking a proactive posture on such things as psychological evaluations, immediately interviewing witnesses, counseling/therapy, substance abuse rehabilitation, letters of apology, etc. are some things that can be used early in a case that can have a tremendous favorable impact on the outcome of a case. I published an article in a Westlaw publication, unfortunately West has the copy right or I would link you to the article here, about building a mitigation case from the beginning, regardless if the case may be one that ultimately may go to trial. Caveat: these measures should NEVER be done without the guidance of an experienced lawyer who is ethical and skilled at negotiation and trial practice. In other words, Clients or those charges SHOULD NEVER do these things on their own.
The First District Court of appeals yesterday reversed a trial court for imposing a greater sentence because the convicted defendant did not show remorse. WE all know that innocent people get convicted every day throughout our country. How could we expect someone who is truly innocent to show remorse. In Dumas v. State, 1D12-1275 (Fla. 1st DCA Feb. 8, 2013) the First District Court of Appeals in Florida that includes Pensacola all the way to Defuniak Springs reversed a trial court because it imposed a longer sentence because the accused did not show remorse. Bravo for the First DCA.

The First District Court of Appeals, which includes cases in Pensacola, Milton, Fort Walton and Destin, among other cities located in the panhandle of Florida, reversed a case yesterday because the prosecution exercised a “challenge for cause” improperly.

In a nutshell, there are two types of challenges that an attorney can make against a prospective juror being seated as a juror in a criminal or civil case. Depending on the type of case or charge, each side is given a set amount of “peremptory challenges.” A peremptory challenge is basically a challenge the attorney can make without providing a reason. However, opposing counsel may object to a peremptory challenge if he or she believes the challenge is improperly based upon race, sex, or other identifiable classes.

The other type of challenge is called a “challenge for cause.” A challenge for cause is exercised against a juror if there is no reasonable doubt that the challenged juror can be fair and impartial. In Blake v. State, 1D12-1385 (Fla. 1st DCA Feb. 5, 2013), the appellate court reversed a conviction because a prospective juror had merely indicated he was the fiance of a public defender in a different area of the panhandle of Florida. The prospective juror acknowledged that his fiancee talked to him about the types of cases she worked on but also indicated he would have no problem finding a person guilty if the evidence supported such a result. The State moved to strike for cause this prospective juror solely on the basis of his engagement to a public defender employed in a different circuit and over Mr. Blake’s attorney’s objection, the court granted the strike. This is somewhat technically based, but Mr. Blake argued that merely because the State had additional peremptory strikes that the conviction should still be reversed based upon the Florida Supreme Court’s ruling in Ault v. State, 866 So. 2d 674 (Fla. 2003), which, in turn, was based on United States Supreme Court precedent. In Gray v. Mississippi, 481 U.S. 648, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987) explained that the unexercised peremptory argument assumes that the crucial question in the harmless-error analysis is whether a particular prospective juror is excluded from the jury due to the trial court’s erroneous ruling. Rather, the relevant inquiry is “whether the composition of the jury panel as a whole could possibly have been affected by the trial court’s error.” Ault, 866 So. 2d at 686 (emphasis in original). Based on Ault, the the First District Court of Appeal found that the prosecution’s concession is correct, but its harmless error argument is not, and reversed Mr. Blake’s conviction remanding the case for a new trial. The bottom line is merely because a prospective juror was engaged to a defense attorney was not a sufficient basis for the prosecution, in this case, to challenge the juror for cause because he clearly stated he could be fair and judge the evidence and the facts and convict someone if the prosecution proved their case.

I apologize for not blogging or blawging, however one wants to spell it, more the last few months. I have been interested in writing on many different topics but with some of our recent cases coming to resolution, traveling near the end of the year, and attending both a Trial Lawyers College workshop and annual meeting and attending a retreat and mission work with Don Miguel Ruiz, Jr. M.D., near Liberia, Costa Rica, my priorities have lied elsewhere lately.

A recent experience I learned a great deal from was being summoned for jury duty in Escambia County last week. Albeit I have been summoned four times and never chosen to sit on a jury, I always find the experience interesting because of being on the other side of the fence, so to speak. (Lawyers often believe other lawyers cannot be impartial and follow the law which is simply not true).

The day started out by having to arrive at the Courthouse at 8:00 AM and, after checking in much like one would do as if casting a vote, we were directed to sit in a room that probably held 350 or so people. People arriving late were directed to an overflow room, where they watched everything going on within the room I was sitting in on a video fed television.

This article is primarily about the peer to peer (P2P) viewing of child pornography over the internet. In today’s computer age child pornography prosecutions at both the State, including Florida, and Federal level have exploded in large part because of P2P downloading and uploading. It is quite possible for someone to sit in their living room and out of simple human curiosity look at photographs that if detected by law enforcement would result in them being imprisoned for many years. There are also those who are pedophiles with vast collections of child pornography who use P2P programs. The purpose of the article is not to judge who is or is not a pedophile or judge the reason why someone may look at illegal material. It is simply to inform those who use these programs of the extremely serious legal consequences for viewing such material through P2P program software.

Severe Criminal Consequences

Federal prosecutions have increased exponentially in the last five to ten years. Receipt of Child Pornography carries with it a five year minimum mandatory prison sentence to be followed by a period of supervised release or probation in addition to forever being labeled a sexual offender with all of the collateral consequences of such a designation. The base term of imprisonment level will increase tremendously based on the number of photos, the nature of the photo – in fact, in the criminal system the level will be increased if a computer is used! If the photo (or movie) has been “uploaded,” which is how all P2P programs operated, a charge of distribution may be filed which carries a five year minimum mandatory federal prison sentence. In Florida State Courts possession of each photograph that fits the definition of child pornography carries with it a five year maximum prison sentence. So if a person uses a search query like “girls having sex,” and allows the program to download photos or movies that may include those identifying words, and lets the program work overnight, by the morning they probably will have downloaded thousands of illegal images of underage children engaged in sexual activity. This can be the situation even if the person’s intent was to only download adult material. There are a very limited number of defenses to these crimes.
Law enforcement, at both the State and Federal levels, and often times working as TASK forces together, will focus on a particular movie and, using their software find every computer through the user’s IP address that downloaded the material and then obtain the individuals records from the Internet Provider giving them the name and address of the person in whose home the computer is located that downloaded the illegal materials. This information forms the probable cause for a judge to authorize a search warrant of the person’s home that enables law enforcement to then execute and generally seize all computers, cameras, flash drives, CDs, lap tops, I pads, or Smart phones. Subsequently, law enforcement does a forensic evaluation to determine the extent of the person’s involvement with child pornography.
Many people cooperate with law enforcement and provide a full statement at the time of the seizure not fully realizing that possession of such materials will, in many cases, result in a lengthy prison sentence and forever being labeled a sexual offender. Furthermore, both in Florida and the Federal Systems, penalties for possession, receipt and/or distribution of child pornography has more than quadrupled in the last ten years. It is not uncommon today to see a person who has a successful career, is a community leader, has little or no prior criminal history, and had never in any manner abused a child receive a fifteen to twenty year sentence!

More Public Awareness is Needed

I have no doubt that if the public were more aware of the consequences of downloading material that, but for the computer, they would never look at, the number of child pornography prosecutions would decline tremendously. Many people look at illegal material for the same reasons why we, as human beings, slow down to look at a car wreck, out of curiosity or an obsessive/compulsive driven need. Most psychologists agree that people who merely look at child pornography on the internet do NOT act out and are not pedophiles. However, this article is not designed to explain why such people may look at or collect such materials and I am certainly not qualified to diagnose someone’s motivation for doing so.
My advice to people is not to use these programs in any manner, even for downloading music, which in itself may be theft or copyright infringement.
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The Florida State Supreme Court, on July 12, 2012, in a 5-2 ruling, in State v. Adkins upheld a 2002 law which puts the burden of proof on defendants to prove that the citizen defendant did not have knowledge what was in the container or package, etc. they were carrying contained illicit narcotics. Florida is the only state in the country that does not require the prosecution prove that defendant citizen knew the substances they were carrying were illegal.

The Florida Supreme Court held that by the legislature enacting Florida Statute §893.101, the Legislature eliminated from the definitions of the offenses in chapter 893, Florida’s Drug Statute, the element that a person must have knowledge of the illicit nature of the controlled substance. The legislature created the affirmative defense of lack of such knowledge.
This means that a defendant charged with the crime must prove he or she had no knowledge the substance was a narcotic.

The Court held that the statutory provisions do not violate any requirement of due process articulated by the Florida Supreme Court or the Supreme Court. “In the unusual circumstance where a person possesses a controlled substance inadvertently, establishing the affirmative defense available under section 893.101 will preclude the conviction of the defendant” the Florida Supreme Court stated.

The Florida Supreme Court’s decision is in response to a Federal Middle District of Court’s judges opinion ruled the entire Florida law was unconstitutional, calling it a significant departure from the notion that Defendant citizens are innocent until proven guilty.

Prosecutors must still prove that a defendant knew the drug was in their possession. “In the unusual circumstance where a person possesses a controlled substance inadvertently, establishing the affirmative defense available under (the law) will preclude the conviction of the defendant,” Justice Canady wrote for the majority.

Albiet in the miniority of possession and drug cases, there are people that do not know what they are carrying on behalf of someone else contains nacartics. And if they are arrested, who is likely to come forth and tell law enforcement, “yes, those were my drugs, arrest me, you’ve got the wrong person?” What makes this holding particularly disturbing is Florida Minimmum Mandatory sentencing scheme for quanties of drugs for which the person had no intent to sell.
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In January 2012, the United States Supreme Court issued a ruling in United States v. Jones, that the police must obtain a warrant before attaching a GPS device to a person’s car. The Court’s ruling, which applies to Florida, Pensacola and every state and municipality in the USA, holds that a Global Positioning System can only be placed on a suspect’s car to later establish probable cause and thus sufficient grounds to obtain a search warrant for a suspect’s car or home. Five justices suggested that might be similarly necessary for prolonged surveillance through smart phones or other devices with GPS capabilities. This type of GPS monitoring has, up until now, often been used in drug and narcotic cases to track suspect’s whereabouts without the use of a team of agents trailing a person.

Law enforcement had, unbeknownst to Mr. Jones and without a warrant, attached a GPS tracking device to the car that Antoine Jones was driving. Mr. Jones, who owned a nightclub in Washington, D.C., was surveilled through a satellite system and Agents used his “travels’ to various areas and homes, etc. to obtain a search warrant that ultimately led to a conviction in federal court on conspiracy to distribute a controlled substance, an offense that carries with it at least a ten year minimum mandatory sentence.

Justice Scalia, one of the most conservative justices on the Court, wrote the majority opinion and found the “the government’s physical intrusion on the Jeep (by placing the GPS device on the car he was driving) to obtain information constitutes a search.”

In Walker v. State, the Florida Second District Court of Appeals issued an opinion on January 20, 2012, reversing a conviction in a case involving very serious charges because the trial court had allowed the prosecution to admit “hearsay” statements pertaining to why law enforcement officers developed Mr. Walker as a suspect. Hearsay is definined in Florida as an out of court statement offered in court for the truth of the matter asserted. There are certain exceptions that allows hearsay to be admitted such as when a statement is made spontaneously or in an excited fashion. The policy for allowing hearsay is determined by whether the statement is made under circumstances where it is reliable. On the other hand, the reason why it is generally not admissible is because it gives the accused no opportunity to confront the witness making the statement in violation of confrontation clause of the U.S. Constitution. To not allow someone accused to cross exam the witness making the statement, the accused would not have the ability to challenge the credibility or motivation of the witness for the statement.

The Florida appeals court held specificially: “[I]t is impermissible for the State to have the benefit of statements from mystery witnesses or sources without the defendant having the right of confrontation and cross-examination.” Keen v. State, 775 So. 2d 263, 273 (Fla. 2000). To come within this rule, the testifying witness need not repeat the exact statements of the mystery witnesses or sources but need only give testimony from which such statements may be inferred. Wilding v. State, 674 So. 2d 114, 119 (Fla. 1996). Where the inference from a statement of a mystery witness is that the witness has furnished evidence of the defendant’s guilt, the testimony is hearsay and violates the defendant’s right of confrontation. Id.

The Florida Supreme Court has rejected the argument that such statements are admissible to explain the police investigation or to establish a sequence of events. Keen, 775 So. 2d at 271. ” ‘[T]he prejudice of out-of-court statements used to relate accusatory information but offered simply to establish the logical sequence of events outweighs the probative value of such evidence, rendering it inadmissible.’ ” Id. (quoting Caruso v. State, 645 So. 2d 389, 395 (Fla. 1994)).

In Florida, and every state in America other than Louisiana and Oregon, in order for the government to convict someone of a crime it must be by a unanimous verdict. What this means in Pensacola or other Florida criminal courts is that all six jurors must be unanimous in their verdict. In Florida criminal courts, only Defendant’s charged with first degree murder are entitled to twelve member juries. There is case law that supports if one of the twelve in a murder case, or one of the six in a non-murder case, becomes for any reason incapable of serving as a jury on the case once the trial has begun, a stipulation between the parties may allow the trial to proceed with a verdict based upon the smaller number of jurors. This rarely occurs because in most cases alternate jurors are selected at the beginning of the trial for the very reason if one of the jurors becomes incapable of serving the alternate will then fill the missing juror’s place. People are not told who are or who not alternate jurors are so that all the jurors will pay close attention to the evidence during the trial. However, in Florida, even if less than six or twelve are allowed to reach a verdict, the verdict must be unanimous. In all federal courts, which require twelve member juries is all criminal cases, the verdict must be unanimous. If the defendant in a criminal case chooses, and he or she initiates the waiver, a Florida jury may return a binding less than unanimous verdict. Flanning v. State, 597 So. 2d 864 (Fla. 3rd DCA 1992). (Why on God’s green earth a defendant would ever do this, I don’t know. I guess an exceptional situation may exist where the defendant feels confident that the majority of jurors are going to find him not guilty; however, in my opinion, at the very least, this “assumption” would have to carefully weighed agaist whether the prosecution would re-try the defendant).

This is not the case in the States of Louisiana and Oregon. In those states, an 11-1 or 10-2, will result in conviction of a criminal defendant. These two state’s non-unanimous verdict requirements were recently “denied review” by the U. S. Supreme Court in Troy Barbour v. State of Louisiana. More practically speaking, Mr. Barbour had requested that the U.S. Supreme Court review the Louisiana state court jury system and mandate it to require unanimous jury verdicts in all criminal cases. This positiion was even supported by “The American Bar Association,” generally known as a somewhat conservative organization. The ABA stated in its amicus curie brief that research has shown that non-unanimous jury verdicts in criminal trials “fail to foster thorough jury deliberation, attention to minority viewpoints or community confidence in jury verdicts.” In its brief, the ABA requests that the court conclude that criminal defendants in state jury trials should have the same right to a unanimous jury verdict as criminal defendants in federal jury trials. The U.S. Supreme Court chose to not even hear the Louisiana case therefore the law remains in Louisiana and Oregon that citizens can be convicted by a less than unanimous jury verdict in criminal cases.

In America, if a jury fails to reach a verdict, which is known as a “hung” or “dead-locked” jury, the State or Federal government has the option of re-trying the defendant. How long a jury deliberates before it is declared “hung” or “dead-locked” is a matter within the discretion of the trial court judge in the State of Florida. Florida Rule of Criminal Procedure 3.560.