South Florida Criminal Lawyers Blog

Paul Merhige pled guilty as charged in the Thanksgiving Day Massacre case, receiving seven consecutive life sentences and avoiding the possibility of execution. While some of the family members of Paul Merhige's victims supported the plea deal, James Sitton, the father of six-year-old Makayla Sitton, the youngest of the victims, expressed outrage over the plea.

There is little doubt that prosecutors involved in the case thoroughly debated, contemplated, and struggled with the prospect of entering into a plea deal with Paul Merhige. Indeed, I have worked beside the prosecutors handling this case, and know first-hand of their tireless dedication to secure justice for the victims of Paul Merhige's brutality. From a prosecution perspective, there are times in which pleading a case to a sentence less than the maximum is the most effective course of action toward achieving justice. In a Capital First Degree Murder trial, the prosecution will not only evaluate the likelihood of achieving a guilty verdict, but will also evaluate the likelihood of achieving a death sentence.

Make no mistake, the chance of Paul Merhige winning an acquittal at trial was extremely low. As previously reported, the defense at trial was going to hinge on a theory of insanity. In the State of Florida, a person is legally insane if: (1) the person had a mental infirmity, disease, or defect; and (2) because of the infirmity, disease, or defect, the person (a) did not know what he/she was doing or its consequences, or (b) although the person knew what he/she was doing and its consequences, the person did not know it was wrong. What is more, under Florida law, all persons are presumed to be sane. The defendant has the burden of proving the defense of insanity by clear and convincing evidence.

According to earlier reports of the case, Paul Merhige has a long history of mental illness and instability. Thus, the defense would likely have had little difficulty establishing the first prong of the insanity defense. However, the second prong would have proven exceptionally difficult. The State would have presented evidence of Paul Merhige's planning, preparation, and deliberation, all of which establish that Paul Merhige knew exactly what he was doing and the consequences of what he was doing. Furthermore, the State would have presented evidence that Paul Merhige, in an attempt to escape capture, fled the jurisdiction and hid out in a motel in the Florida Keys, illustrating that Paul Merhige knew that what he had done was wrong.

However, Capital First Degree Murder trials are a two-part process. Phase One of the Paul Merhige trial, also referred to as the guilt-phase, would likely have taken weeks. If, as is likely, the jury convicted Paul Merhige, the trial would enter Phase Two, also referred to as the sentencing-phase. During Phase Two, the State would attempt to persuade the jury to recommend a death sentence.

Arguments during Phase Two are framed by Florida Statute 921.141, which provides statutory aggravators and mitigators for the jury's consideration. In the case of Paul Merhige, both the State and the defense would have arguments that numerous aggravators and mitigators apply. In aggravation, the jury could find that Merhige was previously convicted of another capital felony or of a felony involving the use of violence; the defendant knowingly created a great risk of death to many persons; the capital felony was a homicide and was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification; and the victim was less than 12 years of age. In mitigation, the jury could find that the capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance; and the capacity of the defendant to appreciate the criminality of his or her conduct or to conform his or her conduct to the requirements of law was substantially impaired.

In the final analysis, a full trial would not have necessarily resulted in a death sentence. Even if the jury were to return a recommendation of death and the judge was willing to impose the recommendation, Paul Merhige would have appealed the sentence, dragging out litigation for years. Due to Paul Merhige's significant mental illness, it is more likely than not that a death sentence would not stand up to judicial review.

According to the Palm Beach Post, the West Palm Beach City Commission plans on shaming so-called "Johns," men who solicit prostitutes for sex. The idea is that men who are allegedly "repeat offenders" will find their faces plastered on the City of West Palm Beach's website. Apparently, anyone arrested more than once for soliciting prostitution would fall into the category of "repeat offender." While the idea of shaming "Johns" is nothing new, this latest attempt at combating prostitution will likely prove controversial and may result in additional legal fees for the city.

The idea of shaming individuals is hardly unique to West Palm Beach, or even a novel concept. In medieval Europe and colonial America, individuals accused of petty crimes and adultery were often required to submit themselves to public exposure in a pillory. Likewise, during the same era in Asian countries such as China, Korea, and Japan, individuals accused of adultery were subject to harsh forms of shaming, which at times involved public whipping, bludgeoning, and cutting.

Presumably, the concept of shaming serves two punitive goals: retribution and deterrence. First, the inherent humiliation that accompanies shaming is certainly a form of retribution, as it serves as a punishment for the sake of having broken society's law. Second, as the argument goes, the humiliation of shaming serves to deter other people from breaking the law in the future, as it exhibits for society the potential consequence of breaking the law in a very public fashion.

It is with this premise that numerous municipalities across the country have sought to shame individuals accused of soliciting prostitution. In fact, Oakland California instituted a shaming campaign, in which it was initially planned that the images of "Johns" would be plastered on local billboards. The plan sputtered out, however, after city officials worried that civil liability would cost the City of Oakland tens-of-thousands of dollars.

Indeed, it was the cost of civil liability that caused the City of West Palm Beach to scrap its first shaming campaign in the 1990's. Unfortunately for backers of shaming, a fundamental component of American law is the recognition that all people are presumed innocent until proven guilty in a court of law. As the United States Supreme Court said over 100 years ago in Coffin v. United States, 156 U.S. 432 (1895), "The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law." Thus, when a man accused of Solicitation of Prostitution in the 1990's secured an acquittal, he sued the City of West Palm Beach for publicly shaming him and settled the case at a cost of $10,000 for the city.

Apparently, the City Council believes that by shaming only "repeat offenders," the City of West Palm Beach will avoid or reduce the risk of civil liability. This is nonsense. Whether an individual is arrested one time or ten times, the principle of innocent until proven guilty remains the same and the possibility of a defamation suit remains a very real possibility. Even if the City were to define a first offense as a first conviction, the City would presumably post the picture of the alleged "repeat offender" upon that individual's second arrest, when the individual is still presumed innocent. Therefore, by placing that person's picture online, the City is not only proclaiming to the world that the accused is a "John," but that he is a "repeat offender," all before the person is actually convicted.

Arguably, falsely proclaiming that someone is a "repeat offender" is worse than falsely proclaiming that someone is a one-time "John." Regardless, the policy will carry with it the same danger of costly law-suits. Even if the City provides a disclaimer that everyone is innocent until proven guilty, individuals later acquitted of charges could still bring suit. Indeed, regardless of the merits of the lawsuits, the litigation will require investment in attorneys fees and will result in a significant cost to the city.

Hopefully, if the City of West Palm Beach is going to adopt a course of action that carries the likelihood of civil liability, it will do so only after careful consideration of the likely benefits of the program. Will the policy of shaming "repeat offenders" actually deter prostitution? If history has anything to say, the answer is no. They don't call it the oldest profession for nothing.

According to CNN.com, a Missouri prosecutor has secured an indictment against the Catholic Diocese of Kansas City, as well as the Bishop of Kansas City/St. Joseph, the Most Reverend Robert W. Finn. What is particularly surprising about the indictment, beside the fact that it reportedly lists the diocese as a defendant, is that the indictment charges the diocese and Bishop Finn with a simple, "Class A" Misdemeanor. The bishop's alleged crime? Reportedly, he had knowledge in December, 2010, that a diocesan priest, Shawn Rattigan, had disturbing--although not unlawful--photographs of children on his computer. Although the bishop claims that he contacted a Kansas City police officer the day following the discovery, he did not make a formal request for a full investigation until May, 2011, when he found out that Rattigan was continuing to associate with children against orders not to do so. In May, investigators secured a search warrant, through which they discovered new photographs, which Missouri prosecutors allege constituted child pornography.

In short, the Diocese of Kansas City and Bishop Finn are being charged with taking too long to report an incident that was not a crime in the first place. To be sure, both the Diocese and Bishop Finn acted with profoundly poor judgment when they did not immediately request a full investigation into the pictures discovered on Shawn Rattigan's computer. From their own version of events, they seemed to be more concerned with limiting their own exposure than fully investigating the matter to learn the truth. That said, from all accounts, the Diocese and Bishop Finn did indeed report the matter to authorities, without which, Missouri prosecutors could never have built a case against Shawn Rattigan.

As a former sex crimes prosecutor in the Palm Beach County State Attorney's Office, I am all too familiar with individuals failing to report child abuse. Failing to report the molestation or exploitation of a child is not only morally wrong, but under some circumstances, carries the possibility of criminal liability. Under Florida Statute 39.205, it is a First Degree Misdemeanor (the rough equivalent of Missouri's "Class A" Misdemeanor) to fail to report abuse under Florida Statute 39.201, which states:

"Any person who knows, or has reasonable cause to suspect, that a child is abused, abandoned, or neglected by a parent, legal custodian, caregiver, or other person responsible for the child's welfare...shall report such knowledge or suspicion."

In a situation in which a "caregiver" fails to report abuse, Florida prosecutors can charge the individual with Neglect of a Child under F.S. 827.03(3)(a)(2), which prohibits: "A caregiver's failure to make a reasonable effort to protect a child from abuse, neglect, or exploitation by another person." The law defines "caregiver" as: "a parent, adult household member, or other person responsible for a child's welfare." A conviction for Neglect of a Child is a Third Degree Felony, which carries with it the possibility of a 5 year prison sentence.

In the Missouri case, both Bishop Finn and the Diocese have a compelling defense. Like the Florida Statute, the Missouri law requires a defendant failing to report child abuse to have had a "reasonable suspicion" that abuse has occurred. Bishop Finn and the Diocese will both be able to show that they consulted with law enforcement and legal counsel and were informed that the pictures on Rattigan's computer did not constitute child pornography. Indeed, it does not appear that Missouri prosecutors ever filed criminal charges against Rattigan for those pictures. Thus, the bishop and the Diocese may argue that it cannot be shown beyond a reasonable doubt that they should have had a reasonable suspicion when they were informed that the pictures did not constitute abuse. What is more, they can argue that the moment Rattigan was discovered associating with children, their suspicion did become reasonable and that, at that time, they immediately reported Rattigan and requested a full investigation.

Of course, on the other hand, the prosecution may argue that the mere fact that Bishop Finn and the Diocese consulted with a law enforcement officer and legal counsel is evidence that they had a reasonable suspicion of child abuse. What is more, the fact that the bishop forbade Rattigan from associating with children also is evidence that the bishop reasonably suspected Rattigan of abusing or exploiting children.

It is interesting to note, however, that under Florida Statute 39.203, individuals and/or institutions that report suspected abuse are immune from civil or criminal liability "which might otherwise result by reason of such action." While there is no Florida case-law on point dealing with F.S. 39.203 in respect to criminal liability, the plain language of the statute suggests that in Florida, the State would be precluded from prosecuting Bishop Finn or the Diocese, as they both eventually reported Rattigan to authorities. If it wasn't for the bishop and the Diocese reporting Rattigan in the first place, the prosecution could never have brought charges against them at all.

Which brings us to the wisdom of prosecuting Bishop Finn and the Diocese. Even if the Missouri prosecutors have a good faith basis to indict the bishop and the diocese for a misdemeanor offense, they should exercise some discretion. Prosecuting the individual who reports a child abuser because the person did not report the child abuser fast enough--particularly when there are no allegations that any abuse occurred between the discovery and the report--seems unduly heavy-handed. Individuals should be encouraged to report abuse, not prosecuted for it.

According to NBC Miami, a South Florida man is accused of Driving Under the Influence after authorities found him passed out behind the wheel of his truck in a Taco Bell drive-thru, with his foot on the accelerator and a bag of Mexican fast food at his side. When asked for his I.D., the allegedly impaired man reached into his bag and offered the police...a taco. Shortly thereafter, officers realized that the man's car had set fire due to the man's foot being on the accelerator.

While the story is certainly comical, allegations of Driving Under the Influence are no laughing matter. Indeed, had workers at Taco Bell not called police, the man in the above story may have suffered severe injuries due to the fire he started. What is more, a conviction in Florida for Driving Under the Influence carries with it severe consequences, including the possibility of jail-time, a lengthy driver license revocation, vehicle immobilization, and the installation of an ignition interlock device, among other penalties. It is imperative that individuals accused of Driving Under the Influence in Florida seek representation from an experienced criminal defense attorney.

In the case of the South Florida man in the Taco Bell, he will likely have little option but to negotiate a plea resolution with the State. Pursuant to Florida Statute 316.193, the crime of Driving Under the Influence has two elements: 1) the Defendant drove or was in actual physical control of a vehicle; and 2) while driving or in actual physical control of the vehicle, the Defendant was either (a) under the influence of an alcoholic beverage, chemical substance, or a controlled substance to the extent that his/her normal faculties were impaired; or (b) had a blood or breath-alcohol level of .08 or more grams of alcohol per 100 milliliters of blood or 210 liters of breath. Furthermore, if a jury were to find that the Defendant had a breath-alcohol level of .08 or more, a rebuttable presumption attaches that the Defendant's normal faculties were impaired.

According to NBC Miami, the South Florida man gave a sample of his breath to authorities, which registered a breath-alcohol reading of 0.227 and 0.225. Thus, assuming that law enforcement did not violate the procedures of administering the breath test, and assuming that a jury were to find the breath-alcohol numbers credible, a rebuttable presumption would attach as to the man's impairment.

What is more, the State of Florida amended its D.U.I. law in 2008, creating enhanced penalties for individuals found to have a breath-alcohol level above 0.150 (previously, enhanced penalties only applied to breath-alcohol levels above 0.200). Under the enhanced penalties, an individual not only faces the regular punishment for a D.U.I., but in addition faces the possibility of 9 months in jail, a $2000 fine, and the installation of an ignition interlock device for a period of two years.

According to the Palm Beach Post, a West Palm woman is accused of carjacking a man at the 6000 block of South Dixie Boulevard. Allegedly, the woman and an unknown male accomplice accosted the victim as he exited a nearby Mexican Restaurant, stealing the Honda CRV he was driving. What is more, the woman confessed...albeit to a different crime altogether.

According to the woman's statement to police, the alleged victim picked her up in West Palm Beach in the Honda CRV, looking for sex. When the man parked the car in an alley and walked around toward the passenger side of the vehicle (presumably to consummate the transaction) the woman took the opportunity to drive away in the car.

Stories such as this are all too common in the practice of criminal law in South Florida. More often than not, there is more to the story than meets the eye. While it is certainly possible that the alleged victim was beaten by the woman and an unknown assailant, it is interesting that two complete strangers were so intrigued with the victim's Honda CRV that they just had to have it, even if it meant beating a man and stealing it. Then again, it was a red Honda CRV.

Of course, according to the alleged victim's statement, it wasn't really his Honda CRV at all. Rather, the car belonged to a friend of his, who supposedly lent him the vehicle so that he could conduct repairs on it. Presumably, the alleged victim was able to provide the West Palm Beach Police Department with the name and address of the real owner of the car.

Then there is the troubling story of the unknown assailant. The alleged victim, who couldn't possibly have picked up a prostitute in a vehicle he didn't own, was only overtaken after a powerful mystery-man muscled him out of the vehicle. According to the alleged victim's story, the unknown assailant jumped in the car with the woman and sped off.

However, when police caught up with the vehicle, which was still on I-95 heading northbound, only the woman was in the car. When the woman eventually crashed the car in Riviera Beach, only the woman was at the scene, and only the woman fled on foot. To date, the unknown assailant remains at large--or remains as the figment of the victim's imagination.

To the lay person, these potential discrepancies seem to be of little note. At worst, a woman and an unknown man carjacked a victim's car, engaged in a high-speed police chase, crashed the car and fled on foot. At best, a prostitute stole a "John's" car, engaged in a high-speed police chase, crashed the car and fled on foot. Not much of a difference, as both scenarios include a complete disregard for the law, safety, and property.

However, these potential discrepancies are very important to the prosecution, which has the burden of proving the criminal activity beyond and to the exclusion of every reasonable doubt. A quick look at the most serious alleged charge sheds light on the difficulty the prosecution will face.

Carjacking Without a Weapon is a crime defined in Florida Statute 812.133(2)(b). The charge of Carjacking Without a Weapon consists of three elements: 1) the Defendant took a motor vehicle from the person or custody of the victim; 2) force, violence, assault, or putting in fear was used in the course of the taking; and 3) the taking was with the intent to temporarily or permanently deprive the victim of his or her right to the motor vehicle; or, to appropriate the victim's motor vehicle to his or her own use or to the use of any person not entitled to it. The crime is a level 7, first degree felony; which means the crime carries a presumed lowest permissible sentence including prison, with a maximum 30 year prison sentence.

Thus, in order for the prosecution to prove a Carjacking occurred, the prosecutor would need to prove that the taking of the vehicle was with force or threat of force. Such a showing would preclude reliance on the woman's statement to police, because in her version of events, she never used force or threat of force. The prosecution's case would require reliance on the credibility of the victim's story that an unknown assailant, acting as a principle to the crime, violently attacked him. The prosecution could bolster the credibility of the victim's story with evidence of injury to the victim or corroboration that the victim had just exited the Mexican Restaurant after having eaten dinner and was not with a prostitute. However, short of such corroborative evidence, it is highly unlikely that the prosecution could successfully bring carjacking charges.

The woman did, however, admit to taking the car, which might open her up to liability for committing Grand Theft of a Motor Vehicle (commonly referred to as "Grand Theft Auto"), which is defined in Florida Statute 812.014(2)(c)(6). The charge of Grand Theft Motor Vehicle consists of three elements: 1) the Defendant knowingly and unlawfully obtained or used the property of the victim; 2) he or she did so with the intent to either temporary or permanently deprive the victim of his or her right to the property; or to appropriate the property of the victim to his or her own use or to the use of any person not entitled to it; and 3) the property was a motor vehicle. The crime is a level 4, third degree felony, which means the crime does not require a prison sentence, but may involve a maximum sentence of 5 years in prison.

Obviously, a charge of Grand Theft Motor Vehicle is a far less serious charge than Carjacking. The woman may attempt to claim a defense of duress; however, this is unlikely, considering that she ran from the police, crashed the car, and then fled on foot; not to mention that it doesn't appear as though she raised duress during her statement to police.