Thank You to My Fellow Hillsborough County Lawyers for Selecting Me as Tampa’s Top Criminal Defense Lawyer

IMG_3463This month I was honored by my peers by being voted as Tampa’s top criminal defense lawyer. I am truly touched by this and while I am very proud of the work we do, I know there are a number of other criminal defense lawyers in Tampa who are equally deserving of this distinction. This honor is not mine alone, our entire law firm shares my passion for the service of our clients. This distinction is the result of the tireless work of Rachel May Zysk, Pam Miller and Rich Miller. I am blessed to work with them and their hard work has been the greatest part of our success.

Posted in Constitution, Courts, Criminal Law, Drug Laws, DUI Law, Ethics, Finanacial crimes, investigation, Lawyers, police custody, Right to remain silent, self incrimination, Sexual Abuse, Trials, Uncategorized, White collar crimes | Leave a comment

Executive Summary Submitted on Behalf of Winston Wilkins

The following is the Executive Summary submitted by Rachel May Zysk of the Suarez Law Firm in furtherance of Winston Wilkins’ Clemency Petition.  Mr. Wilkins was granted  clemency by President Obama on the last day of his presidency (January 19, 2017).

 

cp14-memo-wilkins-winston-2_page_1cp14-memo-wilkins-winston-2_page_2cp14-memo-wilkins-winston-2_page_3cp14-memo-wilkins-winston-2_page_4cp14-memo-wilkins-winston-2_page_5cp14-memo-wilkins-winston-2_page_6

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End Arrest Fees

money-jarThe US Supreme Court has agreed to hear a challenge to a practice in a Minnesota county of  charging a $25 “booking fee” to those who have been arrested, regardless of whether they are later acquitted or even formally charged.  This fund raising effort is dangerous to our liberty because, among other things, it encourages arrests as means of raising revenue, not to mention that the mandatory of collection of these fees is at odds with the presumption of innocence.  We hope the United States Supreme Court will rule such practices violate the Unites States Constitution.  The trend of using the criminal justice system as means of raising revenue is not only at odds with United States Constitution but genuine threat to our liberty that further traps poor people in cycle of poverty.

http://www.nytimes.com/2016/12/26/us/politics/charged-a-fee-for-getting-arrested-whether-guilty-or-not.html?emc=edit_th_20161227&nl=todaysheadlines&nlid=60067768&_r=0

 

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The Continuing Saga of Systemic, Prosecutorial Misconduct in Orange County, California

We encourage our readers to carefully follow this unfolding story.  http://www.abajournal.com/news/article/appeals_court_considers_removal_of_orange_county_das_office_from_case_over_/?utm_source=maestro&utm_medium=email&utm_campaign=daily_email

Misconduct by a lawyer, at any level, is troubling but misconduct on the part of those representing the government strikes at the very heart of our freedom.

In our experience prosecutorial misconduct is rare – most prosecutors are honorable people, ethically carrying out their duties.  There is problem however; the problem is that when misconduct is discovered, there seems to be an almost institutional reluctance to exact meaningful punishment.  This was probably most evident in the aftermath of the prosecution of Senator Ted Stevens, where despite serious misconduct, virtually no punishment was dispensed (two prosecutors were suspended but their suspension was later overturned by a review board).

Prosecutors should be commended for the important work they do but we give them tremendous power and trust them to exercise that power with meticulous adherence to the rule of law.  A willful violation of that trust must not be overlooked or easily forgiven – such inaction will lead to a serious of undermining of our freedom and the integrity of our political and justice system.

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Immunity from Criminal Prosecution under Florida’s Stand Your Ground Law

By Rachel May Zysk and Eddie Suarez

October 6, 2016

Florida’s Stand Your Ground Law “substantially amended the affirmative defense of justifiable use of force by abrogating the common law duty to retreat before resorting to deadly force and by enacting section 776.032, which grants immunity from criminal prosecution and civil action to those who use force justifiably in self-defense.”  Dooley v. State, __ So. 3d __, 2016 WL 1602968 at *1 n.1 (Fla. 2d DCA Apr. 22, 2016) (per curiam).  “Section 776.032(1) expressly grants defendants a substantive right to not be arrested, detained, charged, or prosecuted as a result of the use of legally justified force.”  Dennis v. State, 51 So. 3d 456, 462 (Fla. 2010); Rosario v. State, 165 So. 3d 852 (Fla. 1st DCA 2015) (“Florida’s Stand Your Ground law is intended to establish a true immunity from charges and does not exist as merely an affirmative defense.”); § 776.032(1), Fla. Stat. (2014) (“A person who uses or threatens to use force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in such conduct and is immune from criminal prosecution.”).

Section 776.012 (use or threatened use of force in defense of person) provides:

  • A person is justified in using or threatening to use force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force.
  • A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.
  • 776.012, Fla. Stat. (2014). See also § 776.013, Fla. Stat. (2014) (regarding home protection); § 776.031, Fla. Stat. (2014) (regarding defense of property); McWhorter v. State, 971 So. 2d 154, 156 (4th DCA 2007) (Stand Your Ground Law “altered the law so that now there is ‘no duty to retreat’ under a broad array of circumstances.”) (citing Smiley v. State, 966 So. 2d 330, 335 (Fla. 2007) (“the broad context of this legislation (i.e. ‘not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be’) establishes that there is no duty to retreat before using deadly force in numerous other situations”)).

A rule 3.190(b) motion to dismiss is the appropriate mechanism for raising a pretrial claim of immunity under section 776.032.  Dennis, 51 So. 3d at 462-463 (resolving conflict amongst district courts of appeal regarding pretrial procedural requirements); see also, generally, Ray v. State, 176 So. 3d 1010, 1011-1012 (Fla. 5th DCA 2015) (trial counsel ineffective for failing to file a motion to dismiss pursuant to Stand Your Ground).  A defendant who asserts Stand Your Ground immunity through a motion to dismiss is entitled to an evidentiary hearing.  Rosario, 165 So. 3d at 854 (remanding following trial court denial of motion to dismiss without holding evidentiary hearing); Prof’l Roofing & Sales, Inc. v. Flemmings, 138 So.3d 524, 525 (Fla. 3d DCA 2014) (evidentiary hearing is required in both criminal and civil proceedings); Satyanand v. State, 147 So. 3d 662, 663 (Fla. 5th DCA 2014) (“the Florida Supreme Court expressly held [in Dennis] that where a criminal defendant files a motion to dismiss pursuant to section 776.032, the trial court should conduct a pretrial evidentiary hearing”); Mederos v. State, 102 So. 3d 7, 11 (Fla. 1st DCA 2012) (“When a defendant claims immunity from prosecution under the Stand Your Ground Law, a trial court is to conduct an evidentiary hearing”); Wonder v. State, 69 So.3d 371 (Fla. 4th DCA 2011) (defendant entitled to evidentiary hearing); see also Bretherick v. State, 170 So.3d 766, 768 (Fla. 2015) (“discussing burden of proof “at the pretrial evidentiary hearing.” (emphasis added)).[1]

At the evidentiary hearing, the defendant bears the burden of proving by a preponderance of the evidence that he is entitled to Stand Your Ground immunity.  Bretherick, 170 So.3d at 768 (“We now make explicit what was implicit in Dennis—the defendant bears the burden of proof by a preponderance of the evidence at the pretrial evidentiary hearing.”).  “[T]he trial court must decide the matter by confronting and weighing only factual disputes [not] deny a motion simply because factual disputes exist.”  Peterson v. State, 983 So. 2d 27, 29 (1st DCA 2008) (holding that disputed issues of material fact did not warrant denial of motion to dismiss), approved, Dennis, 51 So. 3d at 458 (“the trial court should decide the factual question of the applicability of the statutory immunity… [we] approve the reasoning of Peterson on that issue.”); Rosario, 165 So. 3d at 854 (the purpose of the evidentiary hearing “is to consider factual disputes.”) (quoting Mederos, 102 So. 3d at 11).

If the defendant demonstrates by the preponderance of the evidence that he used deadly force in a manner statutorily authorized by section 776.032, he should be declared immune from prosecution.  See State v. Gallo, 76 So. 3d 407, 409 n.2 (2d DCA 2011).  In Gallo, “[a]t around 2:30 in the morning, [the defendant and victim] confronted each other outside of a busy night club.”  Id. at 408.  Their argument became physical and at least two other men became involved.  Id.  Gun shots were fired and the victim was hit multiple times, resulting in his death.  Id.  The trial court “held an evidentiary hearing, made determinations of credibility, weighed the numerous pieces of conflicting evidence, and set forth extensive factual findings.”  Id. at 409.  The Second DCA affirmed, noting:

The legislature’s enactment of section 776.032 placed the burden of weighing the evidence in “Stand Your Ground” cases squarely upon the trial judge’s shoulders.  In this case, that burden required the trial judge to make order out of the chaos that occurred in Sarasota on one fateful night in 2010.  The trial judge performed that duty without legal error.Id.

“An objective standard is applied to determine whether the immunity provided by [Stand Your Ground] attaches.”  Mobley v. State, 132 So. 3d 1160, 1164 (Fla. Dist. Ct. App.), reh’g denied (Mar. 13, 2014), review denied, 147 So. 3d 527 (Fla. 2014) (citing Montanez v. State, 24 So. 3d 799, 803 (2d DCA 2010)).  “That standard requires the court to determine whether, based on circumstances as they appeared to the defendant when he or she acted, a reasonable and prudent person situated in the same circumstances and knowing what the defendant knew would have used the same force as did the defendant.”  Viera v. State, 163 So. 3d 602, 604–05 (Fla. 3d DCA 2015) (emphasis added).  However, a defendant’s honest, but mistaken, perception of an imminent threat[2] may not be sufficient to prove that immunity should attach.  See Bretherick v. State, 135 So.3d 337, 341 (Fla. 5th DCA 2013) (per curiam), approved, 170 So.3d 766 (Fla. 2015) (“The issue of who bears the burden of proof may well be significant where the case is an extremely close one”); see also Rudin v. State, 182 So. 3d 724, 726 (Fla. 1st DCA 2015) (defendant failed to prove he was justified in stabbing his stick-wielding father; the two-inch wide, four-foot long stick was not a deadly weapon and caused only minor injuries to the defendant, father testified he did not intend to seriously hurt the defendant, and defendant did not testify).

Accordingly, immunity does not attach to a defendant’s actions once a reasonable person would believe the imminence of the danger had passed.  Bretherick, 135 So.3d at 340.  In Bretherick, a vacationing family was driving to Downtown Disney when a truck nearly sideswiped them while passing in the right lane.  Id. at 338-338.  The truck driver stared at the family in a threatening manner, cut in front of the family’s vehicle, slammed on the brakes, and came to a full stop although traffic was moving.  Id. at 339.  The truck driver got out of his truck and approached the family’s vehicle.  Id.  The father in the family held up a holstered handgun and the truck driver got back into his truck.  Id.  The son in the family (and the defendant in the case) then approached the driver side of the truck while pointing a handgun at the driver.  Id.  The defendant told the truck driver to move his vehicle or he would be shot.  Id.  Unfortunately, the truck driver thought that the defendant told him “if he moved, he would be shot.”  Id.  The defendant, while maintaining his target, told his family the truck driver had a gun.  Id.  The defendant’s mother and sister ran for cover to a ditch.  Id.  At one point, the truck rolled approximately a foot back toward the family’s vehicle.  Id.  The stand-off continued until police arrived, and the defendant was charged with aggravated assault.  Id.  The Fifth DCA held that the trial court “properly determined that there was no longer an imminent threat [when the defendant approached with the gun] and that the Defendant’s subjective fear at that point was objectively unreasonable.”  Id. at 340 (emphasis added).  Thus, “[i] It was not reasonable for the Defendant to believe that it was necessary for him to approach [the] truck with a gun drawn in order to defend himself or his family.”  Id. at 341.

If, however, “the totality of the circumstances leading up to the attack” demonstrate that the “appearance of danger” was real and could only be avoided by force, Florida law makes clear that a person has no duty to retreat.  Mobley, 132 So. 3d at 1166.  In Mobley, the defendant was charged with two counts of second-degree murder after he shot and killed two men outside of a restaurant.  Id. at 1162.  The defendant, his friend, and the two victims were involved in a “petty disagreement” inside of the restaurant.  Id. at 1162-1163.  After the altercation appeared to have ended, one of the victim continued to stare at the defendant and his friend.  Id. at 1163.  The defendant and his friend left the restaurant to smoke a cigarette, and the defendant retrieved his gun from his vehicle.  Id.  The first victim left the restaurant and “delivered a vicious punch” to the defendant’s friend’s face.  Id.  The other victim then rushed to the scene, seemingly to aid in a “renewed attack.”  Id.  The defendant shot and killed both victims.  Id. at 1164.

The trial court determined that the defendant’s actions were not reasonable.  Id. at 1165.  It reasoned that the defendant had not seen the victims with weapons, and the defendant “should have brandished his gun, fired a warning shot or told the attackers to stop because he had a gun.”  Id.  The Third DCA disagreed, finding that while “[i]t may have been more prudent for [defendant and his friend] to skitter to their cars and hightail it out of there when they had the chance,” they were not required to do so.  Id. at 1166.  Additionally, the court found that the events that occurred during the first altercation in the restaurant “provide[d] context for [the defendant’s] actions when the attack outside the restaurant occurred.”  Id.  The court held that it was objectively reasonable for the defendant to believe that force was necessary to prevent great bodily harm, and ordered that the charges against him be dismissed.  Id.

Conclusion

Florida’s Stand Your Ground Law affords three stages of review regarding the applicability of the statute; the first is during the investigative stage.   A practitioner retained early in an investigation is well-advised to advocate the applicability of the immunity to investigators and prosecutors even before charges filed.  If charges filed are filed, practitioners should file a motion to dismiss and insist on an evidentiary hearing; this approach also affords the Defendant the ability to make a clearer record[3] for appellate review.  Lastly, if the first efforts fail, the applicability of the statute and the reasonable of the Defendant’s actions should be zealously advocated at trial.

[1] A defendant may seek review of a trial court’s denial of a motion to dismiss, or a trial court’s denial of an evidentiary hearing on a motion to dismiss, through a petition for a writ of prohibition.  See Little v. State, 111 So. 3d 214, 216 n.1 (Fla. 2d DCA 2013) (Florida Supreme Court “has consistently held” that a writ of prohibition is “an appropriate vehicle to review orders denying motions to dismiss in criminal prosecutions based on immunity.”); Rosario, 165 So. 3d 852 (petition for writ of prohibition appropriate vehicle for challenging trial court’s denial of evidentiary hearing on motion to dismiss).

[2] § 776.012(1), Fla. Stat. (2014) (defendant “reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force”); 776.012(2), Fla. Stat. (2014) (“reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony).

[3] The record on a Motion to Dismiss will be much more focused on the relevant issues in contrast to the record available after trial which will inevitably present a host of other issues and evidence addressing a much wider array of evidentiary matters.

About the Authors

Eddie Suarez and Rachel May Zysk are attorneys with the Suarez Law Firm representing individuals in litigation or investigations, in both state and federal court, involving a broad range of criminal allegations.

Please visit https://www.SuarezLawFirm.com and “Like” us on FaceBook https://www.facebook.com/SuarezLawFirm

 

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We Support the ABA’s Call for the Abolition of For-profit Probation Companies.

stock-photo-young-couple-worried-need-help-in-stress-at-home-couch-accounting-debt-bills-bank-papers-expenses-235460797It seems to us that certain things should be obvious to rational thinking human beings.  One such thing is that the business of administering criminal sentences should never be that – a business.

A necessary component of living in organized communities is the need for basic order and that need inevitably requires the administration of some punishment or correction.  This is serious stuff.  It requires a sophisticated blend of punishment or deterrence, restitution, and mercy – and it needs to be done in a cost effective manner.  There is something fundamentally corrupt, even evil in creating a system where this corrective function is not driven by justice and the pursuit of the greater good but is instead driven by the pursuit of money.

Certain governmental functions such as the administration of criminal sentences should be performed exclusively by those whose only goal is the proper and efficient administration of sentences imposed by the courts rather than the pursuit of profits which often come at the expense of the most unfortunate and impoverished members of our communities.

In 2014, the American bar association (“ABA”) published an article on this disturbing trend (http://www.abajournal.com/magazine/article/probationers_prison_privatized_supervision_becomes_a_spiral_of_added_fees_j) and on Monday August 8, 2016, the ABA’s House Delegates passed a resolution condemning the use of for-profit, privatized probation companies.  We salute the ABA and strongly support Resolution 111B.

http://www.abajournal.com/news/article/abolish_private_for-profit_probation_that_puts_offenders_deep_in_debt_house/?utm_source=maestro&utm_medium=email&utm_campaign=daily_email

 

 

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It’s Not Our Expectations, it is Our Courts’ Interpretations that are Unreasonable (but there is hope — see the update at the bottom)

ORIGINAL POST:

I dotraffic-36938n’t think anyone would argue that protecting our privacy these days is getting harder and harder, largely because we can’t control the way other people track our movement.  Take traffic cameras, for example, I never agreed to have police or anyone put cameras at intersections or toll booths. Does their presence mean that I have acquiesced to less privacy?  Back in the dark ages, before we all carried mobile phones, telephone companies did away with phone booths and simply put the pay phones on walls or stands. They never asked for my opinion.  Did that mean that I had agreed to give up some of my privacy or did I simply recognize that some things are not in my control and, as a result, if I intended for a conversation to be private, I had to be more aware of my surroundings.   I think the latter is true.  Technology and circumstances change all of the time, largely with little input from us. We simply adapt to the new reality.

What is troubling is that our courts routinely respond to the realities of new technology or circumstances as though we have made a conscious chotelephone-586266ice to lessen our expectations of privacy and that is simply not true. When you speak to someone on your mobile phone, do you expect that call to be less private that when you speak on a landline?  Of course not.  I suspect that the fact that your voice is translated to a digital signal and transmitted through the air never entered your mind.  Your expectation of privacy was dictated by the fact that you were having a private conversation with another person outside earshot of others. It strikes me that this is not a difficult concept to grasp, yet courts have routinely engaged in this type of nonsensical analysis to justify governmental intrusion into our private affairs and justify them by, in essence, blaming us by suggesting that we have lowered our expectation of privacy.

sound-144336The latest example comes from California where investigators, conducting a bid rigging investigation, without obtaining a warrant, planted recording devices in the areas of the courthouse where bidders were known to congregate.  The defendants in that case moved to suppress the recordings as violative of the Fourth Amendment.  The legal standard for this analysis is well established. The United States Constitution protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. “The Fourth Amendment protects people rather than places, but ‘the extent to which the Fourth Amendment protects people may depend upon where those people are.’” United States v. Nerber, 222 F.3d 597, 599 (9th Cir. 2000) (quoting Minnesota v. Carter, 525 U.S. 83, 88 (1998)). To invoke the protections of the Fourth Amendment, a person must show he had a “legitimate expectation of privacy.” Katz v. United States, 389 U.S. 347 (1967). In Katz, the Supreme Court held that as long as the target has a legitimate expectation of privacy, a warrant is required for the government to conduct electronic surveillance. To establish a “legitimate” expectation of privacy, he must demonstrate a subjective expectation that his activities would be private, and he must show that his expectation was “‘one that society is prepared to recognize as reasonable.’” Nerber, 222 F.3d 597, 599 (quoting Bond v. United States, 529 U.S. 334, 338 (2000)).

The court in denying the defendants’ motion, found that they did not have a reasonable expectation of privacy because, despite the fact that there was no onear-25595e else around to overhear their conversations, they did not speak in “hushed or whispering tones” and apparently sometimes were “laughing out loud.”  Who knew that laughing out loud equated to a diminished expectation of privacy. The court also noted that they did not cover their mouths and at times had to speak over traffic or other background noise in a way that a passerby could have overheard the conversation.  But the court ignores the obvious fact that there were no passersby – that’s what made the expectation of privacy reasonable.

Every day, in every criminal courthouse in America, thousands of lawyers have private conversations with their clients; they do not whisper; they do not cover their mouths.  They protect the privacy of the conversation simply by ensuring that there is no one around to overhear their conversation – that’s what makes them private.

My thoughts on this matter do not end with a call to action because I don’t think there is much we can do, but I will say this; a few years ago, while speaking at a bar function, a distinguished, federal appellate judge gave a speech critical of what he termed, our society’s diminishing desire for privacy and while I could not completely disagree with him, I could not help but muse at the irony that the biggest erosion of our privacy is coming from judges like him, who continue to engage in contorted analysis in order to admit evidence in criminal cases, rather than have the courage to acknowledge that the conversations in questions do in fact have a reasonable expectation of privacy. To a large extent, it is not society who has diminished expectations of privacy, it is the way our courts have dictated under what is circumstances is such an expectation reasonable that has resulted in the erosion of our privacy rights.

UPDATE:

On August 1, 2016, in a related case, United States District Judge, Charles Breyer, excluded from evidence over 200 hours of recordings made at the San Mateo County Courthouse.  In a detailed, well-reasoned opinion, Judge Breyer found that that the government had failed to justify a warrantless electronic surveillance program that recorded private conversations spoken in by judges, attorneys, and court staff entering and exiting a courthouse. He went on to find that “[e]ven putting aside the sensitive nature of the location here, Defendants have established that they believed their conversations were private and that they took reasonable steps to thwart eavesdroppers.”

More to the point of my original post, Judge Breyer concluded his opinion with this comment, “With continuing advances in technology, private conversations may become anachronistic rituals reducing intimate encounters to silent exchanges of notes. But that day has not arrived. Until it does, our Fourth Amendment protections should be defined by traditional circumstances. The Court concludes that Defendants had (1) a subjective expectation of privacy in the conversations recorded by the stationary microphones at the San Mateo County Courthouse, and (2) that expectation was objectively reasonable.”

Kudos to Judge Breyer!

https://cdn.arstechnica.net/wp-content/uploads/2016/08/courthouse.bug_.order_.pdf

 

For more information on the California case discussed in this post, see United States v. Michael Marr, Javier Sanchez, Gregory Caroso and Victor Marr, Case Number 14-cr-00580-PJ. Pretrial Order No.3 United States District Court for the Northern District of California

Posted in Constitution, Courts, Criminal Law, Ethics, Finanacial crimes, investigation, Lawyers, Privelege, Trials, Uncategorized, Waivers, White collar crimes | Leave a comment