Articles Posted in Violent Crime

To my faithful dear reader (whomever you may be), let me update my terribly outdated blog. During my hiatus from blogging, there has been no shortage of news stories pertaining to criminal law and justice throughout South Florida and the United States, and I have been unfortunately delinquent in covering these developments. So here it goes.


In my last blog post, I discussed the shooting of Michael Brown. When I wrote the article, we only had a clouded understanding of the facts. We knew: (1) an officer stopped Michael Brown for jaywalking; (2) Michael Brown was unarmed; and (3) that the officer fatally shot Michael Brown. We also knew that the officer alleged that Mr. Brown grabbed for his gun. At the time, I wrote: “What has been reported from eyewitnesses of the shooting suggests that the police fatally overreacted to a show of disrespect.” I also cautioned: “We should wait until a full investigation is completed before drawing conclusions.”

This week’s disturbing news coming out of Ferguson, Missouri, is highlighting the troubling trend of militarization in American law enforcement agencies; a trend which is occurring right here in South Florida, as it is in most parts of the country. To be sure, the Ferguson Police Department is facing a tremendously difficult situation. The disgusting looting that broke out over the weekend, which resulted in at least one convenience store burning to the ground, calls into focus the need for police to reestablish law in the relatively small St. Louis suburb of Ferguson. The overwhelming presence of media is likely contributing to the difficulty. However, no law enforcement agency can credibly restore the rule of law unless it is willing to abide by the rule of law itself. What is more, it is paramount that law enforcement use a modicum of discretion if it has any hope of deescalating tensions. Officers operating in Ferguson have failed miserably in this regard. What they have shown–and what militarized law enforcement have shown time and again across the country–is a total lack of perspective and awareness.

The failure of law enforcement to act with calm and measure has also greatly diminished the credibility of officers in Ferguson. Surely, we should not jump to conclusions about the tragic shooting death of Michael Brown, an unarmed teenager, until we have a more complete reporting of the facts. What has been reported from eyewitnesses of the shooting suggests that the police fatally overreacted to a show of disrespect. If this is the case, the officer (or officers) responsible must be prosecuted for the homicide. On the other hand, law enforcement officials have already made the claim that Mr. Brown reached for an officer’s gun. While this claim seems unlikely, similar occurrences have happened elsewhere, and the claim shouldn’t be dismissed out of hand. We should wait until a full investigation is completed before drawing conclusions. However, the outrageous behavior of police officers in Ferguson (most of whom I believe are from St. Louis County) has seriously diminished the credibility of police in the area, and makes accepting law enforcement’s claims that much more difficult.

Take, for instance, this photo from the New York Times.

From the start, I have made no secret of my opinion of the George Zimmerman prosecution. When the State filed formal criminal charges against Mr. Zimmerman, I explained the legal strength of Mr. Zimmerman’s case. I also described the probable cause affidavit, which alleged Second Degree Murder, as woefully inadequate. The affidavit was not only short on evidence, but it also omitted material facts, which suggested Mr. Zimmerman’s immunity under the law. Finally, during the trial itself, I wrote: This prosecution is less about justice, finding the truth, and adherence to the rule of law, than it is about offering a sacrificial lamb at the table of political expediency.

Of course, it is undeniably true that the death of Trayvon Martin was a terrible tragedy. He was a young man in the prime of his youth, who was doing nothing wrong when George Zimmerman pulled over his car and called the police. Let me say forthrightly, that I believe that Mr. Zimmerman acted with profound irresponsibility on the night of the shooting. That said, the prosecution was well aware that it had neither the facts nor the law to prove Mr. Zimmerman’s guilt.

As attorney Don West said, “the prosecution of George Zimmerman was disgraceful.” It was, indeed. Let me explain why.

The bizarre trial against George Zimmerman continued into its second week today. As we discussed earlier, after calling 22 witnesses in the first week, the State presented a substantial amount of evidence corroborating George Zimmerman’s version of events. Today, the State doubled-down. Today, it was as though the State was trying to prove Mr. Zimmerman’s innocence.

First, the State called Dr. Hirotaka Nakasone to the stand. Dr. Nakasone is an expert in the field of voice recognition, who works for the Operational Technology Division of the FBI. Finally! The State pulled out the big guns! Surely, Dr. Nakasone would testify that in the recorded telephone calls, the voice screaming for help was that of Trayvon Martin! This case is going to break right open!

When asked if he could determine the identify of the individual calling for help, Dr. Nakasone testified: “I decided it was not possible to determine.”

Week 1 of what is arguably the most important criminal case in generations, is in the history books. Let’s break down the action.


To say the least, the opening statements were bizarre. As we have discussed here in the past, opening statements are of immense importance, particularly for the defense. The opening statement is the first opportunity for an attorney to frame the facts and the issues for the jury. As the saying goes, you never get a second chance to make a good first impression.

It’s been over a month since George Zimmerman shot and killed Trayvon Martin, an unarmed 17 year old child. State Attorney Angela Corey has been on the case since March 23, 2012, when Governor Rick Scott appointed her to oversee the criminal investigation into the shooting. After weeks of gathering evidence, speaking to witnesses, and evaluating the case, State Attorney Corey decided to charge George Zimmerman with Second Degree Murder. In a case that has captivated a nation and threatened to open the seams of racial animosity, State Attorney Corey filed a Probable Cause Affidavit that is, in a word, a flop.

The standard for Probable Cause is extremely low. Probable Cause for arrest exists where the facts and circumstances known to the arresting officers are sufficient to cause a reasonably cautious person to believe that the suspect was guilty of committing a crime. The standard of weighing the evidence for probable cause is far lower than the standard of weighing evidence required for a conviction beyond a reasonable doubt.

At a minimum, a Probable Cause Affidavit must state facts establishing that a defendant has committed each of the elements of the charged crime. Thus, an affidavit in support of Second Degree Murder must state facts establishing that 1) the victim is dead; 2) the victim’s death was caused by the criminal act of the defendant; and 3) the killing was accomplished through an act “imminently dangerous to another and demonstrating a depraved mind.” This last element requires an act that: (a) a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another; (b) is done from ill will, hatred, spite, or an evil intent; and (c) is of such a nature that the act itself indicates an indifference to human life.

getoutofjail.jpgNow that prosecutors have brought charges against George Zimmerman, you probably think that a jury is going to hear the facts and decide the case. Think again. Under Florida’s “Stand Your Ground” law, if George Zimmerman can convince a judge that he acted justifiably, he is entitled to immunity from prosecution. That means no jury; no conviction; no jail. Think of it as a big “Get Out of Jail Free” card. It is worth repeating: Florida’s “Stand Your Ground” law does not just provide an affirmative defense; it provides immunity. The distinction is extremely significant.

For instance, just last month, a Florida judge dismissed Second Degree Murder charges in the killing of Pedro Roteta, an unarmed 26 year old man. The defendant, Greyston Garcia, allegedly saw Roteta steal a radio from Garcia’s truck. Unlike George Zimmerman, Greyston Garcia didn’t call the police before running after Pedro Roteta. Instead, Garcia grabbed a large knife and chased Roteta for at least a block. Upon catching up with Roteta, Garcia proceeded to stab Roteta to death. After the brutal killing, Garcia took Roteta’s bag of stolen radios and allegedly pawned two of them; he also hid the knife and never called 911 to report the incident. Nevertheless, thanks to Florida’s “Stand Your Ground” immunity clause, Greyston Garcia never faced a jury. Instead, Garcia filed a Motion to Dismiss and testified that Roteta swung a bag of stolen radios at his head. Fearing for his life, Garcia claims that he stood his ground–and stabbed Roteta to death.

That’s right: Garcia ran down and stabbed an unarmed man to death; pawned the items taken from the dead man; and hid the knife from police. Yet, Garcia never stood trial or faced a jury. How is that possible? Florida’s “Stand Your Ground” immunity clause.

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.