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American FlagHate crimes in Florida continue to increase every year and in significant amounts after the 2016 Presidential Election.  This is something of great concerns because Florida has always been the destination of choice for many immigrants and their families due to its cultural diversity. According to the Office of the Attorney General of the State of Florida, a hate crime is an act committed or attempted by one person or group against another, or that person’s property, in a way that constitutes an expression of hatred toward the victim based on her or her personal characteristics.  They explain that it is a crime when the perpetrator intentionally selects the victim based on one of the following characteristics: race, color, religion, ethnicity, ancestry, national origin, sexual orientation, homeless status, advanced age, or mental/physical disability.

The groups with the highest numbers of hate crimes both in Florida and the United States are: anti-immigrant, anti-black, anti-Muslim, anit-LGBT, anti-woman, and anti-Semitism groups.The people associated with these hate crimes call themselves “white nationalist” have no care or respect for other people besides those who fit their description of what an “American” should be.  According to the FSRN, the FBI reported that the country had a 67% increase in hate crimes last year and in Florida the increase of hate crimes was at 500% therefore, providing data that illustrates why this issue is so concerning.  They believe those number are much higher already and we are only half way through this year.

Hate crimes can be both verbal and physical because these crimes do not only involve people but the attacks can also be against churches and temples, schools, different public centers, jobs, different forms of transportation, on the internet, and even in people’s homes.   In the state of Florida, the top five types of hate crimes are: (5) larceny or theft, (4) murder, (3) simple assault, (2) intimidation, (1) destruction/ damage/ vandalism of property. According to the reports from 2015 by the Office of the Attorney General of the State of Florida, the cities with the highest numbers of hate crimes were Miami-Dade, Volusia, and Orange County.

The key element in determining these hate crimes is the motivation behind the act of these crimes. According to the Office of the Attorney General of the State of Florida, a prejudice remark does not necessarily make an incident a hate crime.  Law officers have a duty to thoroughly investigate the incident, find probable cause, and examine the physical evidence.  To best protect your loved ones and yourself is to read the Hate Crime Report Manual, and understand the definition of each crime and it’s elements.  If you feel that you are in situation that match any of the offenses listed in the Hate Crime Report manual, then contact one of the centers listed in the manual for immediate guidance and support.

 

 

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The Securities Act of 1933 is referred to as the “truth in securities” law.   The act has two intended and effected results: It prohibits deceit, misrepresentations, and other fraud in the sale of securities.  It does that by requiring that all investors in the capital and equity markets receive significant information concerning the securities being offered for sale to the public.  It also does that by requiring the filing of a great deal of important information and facts in writing with the Security and Exchange Commission.

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The act starts by requiring registration, which enables investors to make informed judgments about whether to purchase the securities issued by a corporation, or not to buy. The information required by the Securities and Exchange Commission requires that it be accurate but not guaranteed. If you suffer a loss in the purchase of securities, you have the right to recover your loss if you can prove that there was inaccurate or incomplete disclosures of important information. It starts by requiring that all securities sold in United States be registered. The registration requires a description of the company’s properties and businesses, a description of the security type being offered for sale, information about the management of the company, and certified financial statements by independent accountants.

Companies with more than $10 million in assets, whose securities are owned by more than 500 people, must file annual reports. Usually, the report includes an opening letter from the Chief Executive Officer, financial data, results of operations, market segment information, new product plans, subsidiary activities, and research and development activities on future programs.  These reports are then available to the public through the Security and Exchange Commission’s database.

The Securities Exchange Act of 1933 also does a great deal towards the function of avoiding and discouraging insider-trading. In broad strokes, it prohibits fraudulent activities of any kind in connection with offering, purchasing, or marketing securities. This includes exchanges, wirehouses, dealers, clearing agencies, transfer agents and brokers. These registration filings require renewal of disclosures and documents updated on a regular basis.

In addition to the Security Exchange Commission, there are other regulatory agencies for example, FINRA, has a website containing a great deal of information. You can use BrokerCheck to find out the complaint history against a financial advisor. FINRA also conducts hearings to resolve claims of improper broker activities. FINRA has offices throughout the United States and is divided into geographical territories.

As recently as 2010, Congress passed The Dodd Frank Wall Street Reform and Protection Act. The purpose of the legislation was to reshape the entire United States regulatory system. The Act focuses in the areas of consumer protection, restrictions on trading, and the issuance and reliability of credit ratings. The Act also won a great deal towards regulating corporate governance to make it more transparent. Additionally, the Act took significant steps towards keeping banks out of the hedge fund business. Banks are historically and legally financial institutions that take deposits and the use of those deposits is to invest in markets that are speculative.  This is all in an effort to rein in the abuses that resulted in the financial meltdown of 2008.

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Increasingly the U.S. Attorney’s office has been actively pursuing men and women who were placed on Federal probation but have either stopped checking in or have violated their probation with a new arrest.   Federal probation is a sentence, just as is Florida state probation.  Violations of probation are most frequently one of the following:

  • Failing to report a change of address or get approval to move from the probation officer
  • Failing to follow the terms of current probation
  • Committing another crime while still on probation
  • Failing to pass or submit a urinalysis
  • Failing to pass or submit a drug analysis
  • Failing to pay for restitution
  • Failing to report to the probation officer

5aebe3eb57581e1d811f05221f078474-300x199Probation is often part of a sentence and follows incarceration.  Violating probation has severe consequences.  If you are currently on probation, make certain that you are aware of all the terms and conditions. Please see 18 U.S. Code §3563, for the terms and conditions of federal probation. Florida Statute § 948.03 is the statute that contains the basic elements of what probation requires in Florida state court.

When and if one is placed on federal probation one is informed by a probation officer at the time of sentencing immediately after the federal judge imposes the sentence in open court.  You and your attorney will go from the courtroom to the Probation Office in the courthouse where you will be instructed.

If you have a violation of probation warrant, contact a criminal defense attorney.  Depending on your state or federal jurisdiction, the warrant can be handled in several ways.  One way is to appear before a judge and explain why you failed to appear (i.e. if the service was to a wrong address or you were hospitalized or incarcerated most judges will set aside the warrant).

The substantive elements of a violation of probation are two: a willful act which substantially violates the terms and conditions of probation.  Rule 32.1 of the Federal Rules of Criminal Procedure contains the post incarcerate laws on modifying probation or supervised release.

Upon being summoned, the Rule requires the federal judge or magistrate to advise you of what you did in violation of your probation or supervised release, and your right to be represented by an attorney.  If you cannot afford a private attorney, the federal judge will appoint a federal public defender.

You are entitled to a preliminary hearing, and at the federal preliminary hearing, the issue of jurisdiction (are you in the correct federal district), is primary.  If you are being held in the wrong federal district the court will transfer you to the jurisdiction of your conviction.  The magistrate can detain (keep you in custody) or release you.  If you are released, you must appear within a few days in the correct federal court.  The purpose of the hearing then becomes a court inquiry.  Taking documents and allegations of fact into consideration the magistrate must determine if probable cause exists to support the allegations of violation.  The federal magistrate must provide you with written accusations specifically identifying what conditions of probation or supervised release were allegedly violated.  The disposition is covered by 18 U.S. Code § 3565 and 18 U.S. Code § 3583.

If after an evidentiary hearing the magistrate makes a finding based on the evidence that a violation has occurred, one of three things can occur:

  1. The federal magistrate can return the probationer to probation without modification.
  2. The second option is to modify the terms of probation by adding new terms, extending the probation or requiring some prison time.
  3. Lastly, the federal judge or magistrate can impose a prison sentence.

The only limitation on the length of any extension or probation or any term of incarceration is the maximum sentence under the Federal Sentencing Guidelines for the crime of conviction for which you were placed on probation.  Time served can and often is granted or credited toward any new prison sentence.  A sentence imposed by a magistrate can be reviewed by a federal judge.  If you are before a magistrate and not a federal judge your criminal defense attorney can follow the procedure to have the findings and rulings of a federal magistrate reviewed by a federal judge.

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On January 10th, 2017, it was announced that Jared Kushner, Donald Trump’s son-in-law, was appointed as Senior Advisor to the future President.  News reports  of “conflict of interest” by Donald Trump, Jared Kushner and the Trump family have  morphed  into allegations of insider trading, a crime punishable by prison and significant financial penalties.

New York Senator and Senate Minority Leader, Charles Schumer, brought up the issue of insider trading and cabinet nominees at a news conference last week, and…POLITICO reports that Congressman Elijah Cummings is looking at corruption hearings on the Trump business and its ties into the government.

There is talk of a pending Congressional criminal hearing on violations of Stock Act of 2012 and insider trading charges in contemplation against Donald Trump and his family members.  The Stock Act of 2012 was enacted to restrict insider trading by members of Congress and their staff and can extend to the President.  The inquiry examines the extent to which Donald Trump, Mr. Kushner and Trump family members have exploited access to government policy in making real estate ventures.

The Stock Act, according to a former ethics advisor to President Obama, Attorney Norm Eisen, “…is probably one of the things that is giving Trump’s lawyers pause.”  Eisen wrote in an email: “As long as he maintains an interest in his businesses, the temptations and opportunities for information to leak back-and-forth between him and his family will be too profound.” The email goes on to state that violation of the Stock Act and other laws, is a scandal that can bring ruin on Trump family members as they pursue real estate transactions, current and future, after gaining access to information from their father.  The Office of Government Ethics (OGE), which sets ethics policy for the Executive Branch of the Federal government, has yet to comment on on the matter.  The reason is at this time, pre-inaugural, there are no violations.  The OGE has policy statements clarifying this issue that executive branch employees cannot engage in a financial transaction using nonpublic information.

Legal definitions are needed here……What is insider trading?  The securities laws broadly prohibit fraudulent activities of any kind in connection with the offer, purchase, or sale of securities. These provisions are the basis for many types of disciplinary actions, including actions against insider trading. Insider trading is illegal when a person trades a security while in possession of material nonpublic information in violation of a duty to withhold the information or refrain from trading.

The SEC recently adopted new rules, 10b5-1 and 10b5-2 which go a long way to reach investment in non-publicly traded stock companies, such as a  non-traded corporate ‘shell’ into which a real estate investment is owned. The Rule states that Rule 10b5-1 provides that a person trades on the basis of material nonpublic information if he/she is “aware” of the material nonpublic information when making the purchase or sale. The rule also sets forth several affirmative defenses or exceptions to liability. The rule permits persons to trade in certain specified circumstances where it is clear that the information they are aware of is not a factor in the decision to trade, such as pursuant to a pre-existing plan, contract, or instruction that was made in good faith.

Where do we go from here?  First, do not confuse conflict of interests with insider trading.  Second, seek out information on the investors, foreign governments and banks whom benefit from Trump properties.  And thirdly, follow my blog.

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Impeachment is governed by Article II Section Four of the U.S. Constitution, which  states that the President shall be removed from office on impeachment for and conviction of treason, bribery or other high crimes and misdemeanors.  Treasons is levying war against the United States, or in adhering to their enemies, giving them aid and comfort.  Bribery is defined in federal statutes, not in the constitution.  High crimes and misdemeanors likewise is defined by looking at old British case law, there is no definition in our constitution.  And yes, a sitting president can be impeached for things done before being sworn in.

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Source: Wikimedia.org

Impeachment applies to the President, Vice President, and can, and has, been used to remove senators, congressman, federal judges and other “civil officers.” Remember Vice President Spiro Agnew? He avoided a near impeachment, and resigned instead in 1973.  Agnew was later indicted for things done when he was governor.  An impeachment is an indictment.

Members of the House of Representative (congressmen and congresswomen) bring the charges and the Senate sits as a jury and decides whether to convict or acquit.  The Chief Justice of the Supreme Court conducts the trial if a president is facing impeachment, in all impeachments the Vice President presides.

The actual prosecutor who brings witnesses before the Senate is someone appointed to the job by the House of Representatives from its own members.  If a President is impeached (brought to trial) he can select his own counsel, or represent him/herself.  Removal from office is all that can be done and no jail or fines can be levied, unless the Senate wants to do such.  There is no clear rule on how many votes are needed to impeach in the House of Representatives, nor to convict in the Senate, but historically it has been a simple majority vote.

In any federal or state criminal trial, the proof must be beyond a reasonable doubt, but that is not the standard in an impeachment trial.  The constitution is silent on the standard of proof needed to convict, the Senate has voted on the question in the past but lets each individual Senator decide if the proof is sufficient even if it is less than beyond a reasonable doubt.  If all this sounds like there are no clear rules it is because there are no clear rules.  Defining high crimes and misdemeanors can and is not defined in the Constitution.  Maladministration, whatever that is, has been derided by writings in the federalist papers, but no definition has been agreed upon.  Think in terms of acts that undermine the legitimacy of government, such as abuses of public trust, as well as bribery and treason.  The right to remain silent does apply to a president on trial, which means he has all his Fifth Amendment rights as a citizen.  As to punishment, removal from office is not required and the Senate can prescribe a lesser punishment.  Does all this seem somewhat lacking in form and substance?  Can it be a political?  Yes.  Can it be personal?  Yes.  It all comes down to the character and ethics and historical perspective of those elected to the House of Representatives and the Senate.

For more information on impeachment:

 

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Cecil_the_lion_at_Hwange_National_Park_(4516560206)

Source: Wikipedia

The Daily Mail reports that Walter Palmer, the Minnesota millionaire dentist, is thriving and Cecil the Lion….is still dead.  But the first anniversary year of the killing has revived the protest by those who are still outraged at the staged killing of the park animal.

Dr. Walter Palmer, one year ago, had his trophy kill gutted and readied to be shipped to his home in the U.S. when the story broke and brought a firestorm of outrage on the bewildered dentist.  The millionaire dentist who was forced into hiding for a brief time has avoided prosecution both in Zimbabwe and the United States.  Zimbabwe abandoned its attempts to extradite Dr. Palmer and announced that no laws had been broken. I personally am starting a fundraising project to raise money for Dr. Palmer to have an all expense paid trip to China where he can have a free ride in an open door-less car to visit Badaling Safari World in Bejing, China.

Unfortunately for Walter Palmer, the international outrage over the killing of Cecil the Lion is not going away.  The wild lion population is estimated at 20,000 cats.  One hundred years ago, the estimated lion population was 200,000.  Over the year since Cecil the Lion was killed, Australia banned the import of lions taken as trophy kills.  France also banned the import of lions taken as trophy kills.  This Fall there will be a vote by the countries in the 182 member Convention on International Trade in Endangered Species to limit or ban the taking of lions as trophy kills.  In Africa, Kenya placed a ban on the taking of lions as trophy kills.  Botswana joined the ban, as did Zambia.

In a coincident of good timing the documentary movie “BLOOD LIONS” was released within a few weeks of the killing of Cecil the Lion.  The movie exposed the trophy killing business where animals are bred for killing.  The population of “ranch lions” was reported at seven thousand lions, all raised for a $50,000.00 fee for trophy-killing.

One aspect of the taking of Cecil’s life, which is heart wrenching, is the manner of death imposed by Dr. Palmer.  At first Dr. Palmer wounded Cecil with a misplaced bow and arrow shot.  The wounded lion, which was in reality a refuge-protected park animal from the adjacent park, survived the arrow and escaped the kill zone created by Dr. Palmer’s hired hunters.  It took them almost two days (40 hours) to follow the blood trail from the arrow injury.  After 40 hours of tracking Dr. Palmer and his hired hunters found Cecil and Dr. Palmer was permitted the “honor” of killing Cecil with a high powered rifle.  Cecil the lion was reported to have been illegally lured to come from the safety of the park by the hunter and re-located onto privately owned land of an adjacent farm.  Once Cecil was brought out of the game park the determination was made that a kill would be approved.  Cecil was butchered, skinned and his skin was removed as a trophy for Dr. Palmer.  One year has passed and little has changed and the trophy killing by recreational hunters continues all around the world.

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The U.S. Department of Justice announced on July 22, 2016 the unsealing of what will be an epic Medicare fraud sweep involving members of the South Florida community, both in Miami and Fort Lauderdale.  This is the largest Medicare Fraud crime federal indictment in the history of the U.S. Department of Justice.  It involves a network of doctors, hospitals, health care providers, adult living facilities (ALF’s), nursing homes, and private physicians and health care providers who have collectively, (allegedly) fraudulently billed Medicaid and Medicare in excess of one billion dollars.

Named in 300px-FBISealthe unsealed indictment is the owner of a business that owns and operates over 30 facilities for profit that provide nursing and assisted living services.  The allegations include conspiracy, bribery, kickbacks and fraudulent billing of services either not provided or, as some unconfirmed reports indicate; provided to dead people.  The unsealed indictment is one of many that the joint task force anticipates will be bring dozens of people to court as criminal defendants in federal court in South Florida.  The Office of the Inspector General of the U.S. Department of Health announced it believes in excess of $2.5 Billion of fraudulent charges are paid out every year by Medicare and Medicaid fraudulently and that South Florida is the focus of the task force.  Also named in the unsealed indictment is Odette Barcha, 49, and Arnaldo Carmouze, 56, all of Miami-Dade County.

Philip Esformes, the owner of more than 30 facilities, was named as the “mastermind” of the conspiracy.  He is represented by attorney Marissel Descalzo and Michael Pasano of the Carton Fields law firm.  In 2013, Attorney Michael Pasano  also represented Karen Kallen-Zury who was convicted and found guilty,  along with others, of running a $70 million Medicare fraud and bribery scheme involving mental health hospitals.  Also convicted in the Southern District of Florida in that case was Daisy Miller of Hollywood and Michele Petrie of Fort Lauderdale.

The Miami Herald wrote that Philip Esformes, age 47, is one of the richest men in Miami and his involvement in the one billion dollar scheme is the source of his accumulated wealth. According to the government, hospitals owned and controlled by the conspirators referred some of the thousands of Medicare patients (whose names are not revealed because of HIPA regulations) for outreach mental health care.

One of the hospitals not named in the indictment is the Larkin Community Hospital in South Miami.  The Justice Department alleged in the indictment some of the kickbacks were ‘disguised’ as payments for “escort services” provided to Mr. Esformes as well as related travel and hotel expenses reportedly billed to Medicare for providing mental health services to Medicare and Medicaid patients, all of whom remain unnamed.

The press release from the U.S. Department of Justice stated, “This is the largest single criminal healthcare fraud case ever brought against individuals by the Department of Justice.”  Mr. Esforme’s criminal defense lawyers Marissel Descalzo and Michael Pasano issued a statement that their client committed no wrongdoing, further saying, “Mr. Esformes is a respected and well-regarded businessman.”  The attorneys did not elaborate on the full scope of their client’s business activities, and did not comment on the allegations that escort and hotel services were allegedly paid for by Medicare and Medicaid in connection with services provided to patients.

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Slavery and trafficking are synonymous.  Human trafficking includes Philippine young women who are transported to Saudi Arabia and confined as domestic servants, as well as commercial sex operations.  Human trafficking is defined as the use of fraud, coercion or force to exercise physical and psychological control of an individual to purpose the victim into commercial sex acts, confined labor or both.  For more a world-wide perspective on human trafficking, go to: National Human Trafficking Resource Center and the UN Office on Drugs and Crime. Defining criminality and prosecutions under federal laws is a three step analysis beginning with: 1) The act; 2) The means; and 3) The purpose.

Florida has a sex trafficking and human trafficking criminal statute which is quite comprehensive.  In Florida, local jurisdictions, such as Miami and Fort Lauderdale, prosecute sex trafficking and human trafficking cases under Florida criminal law.  Often, the scope of commercial sex trafficking operations crosses city and county jurisdictional lines.  A prosecutor in Fort Lauderdale cannot successfully prosecute a sex trafficking operation that is outside Broward County.  Because commercial sex operators are inter-jurisdictional operations, there is a federal task force in place.  The task force is active in Tampa, Orlando, Miami, West Palm Beach, and Fort Lauderdale.  Federal prosecutions are often undertaken when local state prosecutors decline to prosecute or refer a sex or human trafficking case to a federal task force.

Federal criminal codes 18 U.S.C §§ 1591 and 1594 are the most commonly used criminal cases filed in Federal Court.  The White-Slave Traffic Act of 1910, known as the Mann Act, outlawed prostitution and unlawful sexual activities which “cross state lines.”  Historically, the Mann Act was used to arrest and prosecute men, and women, who crossed from one state to another, and who were either unmarried or engaging in commercial sex.   The Mann Act has penalties of ten years.  The Human Trafficking Federal Statutes (18 U.S.C § 1591) prosecutions are more targeted to incarcerate operators of commercial sex enterprises in which prostitutes, both male and female, of age 14 or under are held as sex workers.  The age of the person providing commercial sex and the age of the “John” place different sentencing schemes to defendants.  The statute begins with a mandatory minimum of ten years to a 15 year minimum mandatory to life in prison.  If the age of the “John” is under 21 and the age of the sex partner is under 14, the 15 year minimums apply.   The Sentencing Guidelines provide for enhancements and a recommended sentencing range.  Please seek out more information on the guidelines for more insight into the sentencing exposure of defendants.

We have seen in recent months that increasingly the federal sex trafficking and human trafficking laws have been applied to “Johns” in greater and greater numbers.  As a criminal defense attorney, my office sees this as a disturbing trend in law enforcement.  Human trafficking and the forced enslavement of victims is a problem of international scope.  It is appropriate for federal criminal authorities to use prosecutorial resources to impact on sex traffickers.  It is an unwise allocation of federal resources to arrest individuals who respond to internet ads for escorts and are swept into the federal system.

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mateenNoor Zahi Salman, (the second and current wife of the Orlando shooter, Omar Mateen),  told the FBI she knew of Mateen’s plan for a mass murder shooting, accompanied him to scout out potential targets, went with him to the Pulse Club in Orlando, and accompanied him to buy a holster and ammunition.

Is that enough to charge Mateen’s wife as aiding and abetting the murders?  Can the law support a conviction?  Is arresting her a public relations issue or a law enforcement issue? These are all questions that investigators will be looking to answer in the next few days.

Decide for yourself. But first understand the law.  Aiding and abetting means “assisting in the commission of someone else’s crime.”  According to 18 U.S. Code § 2, Salman, if convicted of aiding and abetting, could be punished as a principal.

Jury instructions are the place to start reading about the elements of crimes.   I always work with clients at the start by reading jury instructions. Jurors hear the instructions at the conclusion of criminal trials.  Jury instructions are the court’s distillation of statutes and case law of the crime(s) defendants are indicted.

Read the Manual of Model Criminal Jury Instructions, 5.1 Aiding and Abetting. There are four elements that must be proven beyond a reasonable doubt. In Salman’s case, to be found guilty of aiding and abetting Mateen of murder, the first thing that must be proven is that the crimes occurred, which they did.

Second, that Salman aided in at least one element of the crime. This may be provable, if it’s true that Mateen’s wife helped him scout out the scene of the crime and went with him to procure things he needed to murder all those people.

Third, that Salman acted with the intent to facilitate the crime. What does “facilitate” mean?  Mateen’s wife must have not only associated with the person who committed the crime, but she must have helped Mateen, knowing he intended to commit a crime.  You decide if Mateen’s wife acted knowing that Mateen intended to use guns to kill people and that there still was a realistic opportunity for him to withdraw from the crime.

The fourth element to be proven is whether Salman acted before the crime was completed.

As more facts become known, you can weigh what you read in the papers and see on TV.  You can mull it over and come to your own conclusion.  But, if you are a prosecutor, you don’t mull and consider if it is a politically popular thing to do. The decision to prosecute is a decision by the U.S. Attorney and the State Attorney in Orlando.  What the prosecutor looks for is sufficient evidence to survive a judgment of acquittal at the conclusion of the government’s case.  Juries decide if the evidence meets the government’s burden of proof beyond a reasonable doubt.  Can prosecutors prove the elements of aiding and abetting the charge of murder, the murder of 49 people?  That is a jury question and that’s what jury trials do: They weigh evidence.  If you believe it is a question of proof, then you should encourage the U.S. Attorney and the State Attorney (the prosecutor’s office in Orlando) to charge Mateen’s wife with aiding and abetting.   Let the proof come out in a trial.  A jury can decide if it meets the test of proof beyond a reasonable doubt.

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Earlier this month, a Miami judge declared Florida’s revised death penalty law unconstitutional, saying jurors should agree to execution unanimously, contrary to what the new law says.

Circuit Court Judge for Miami-Dade County, Milton Hirsch, said that Florida’s new death penalty law, which enacted a “super majority” system where 10 of 12 juror votes aCopy-of-Vetoed-205x300re required to impose the death penalty for murder is contrary to U.S.’s long-time goes against the long-time precedent of unanimous verdicts regarding the death penalty cases.

Just recently in March, Florida’s legislature was forced to revise the death penalty statute after the U.S. Supreme Court declared the previous one unconstitutional in January of this year because it said it did not give jurors a significant enough role in the death penalty decision.

Under Florida’s previous death penalty statute, the trial court held two phases of the trial, which is in effect two separate trials for capital death cases. Capital death cases are all cases in which the death penalty is a possible punishment.  The first phase was, and remains, the “guilt phase.”  During the guilty phase of the trial, the State has to put evidence before the jury that all the elements of a capital homicide prosecution are met and meet the standard of “beyond a reasonable doubt.”  The death penalty can be imposed in murder cases in which the killing was done in a cruel, heinous or atrocious manner: other States and the Federal system define this element in other words as well such as “especially heinous” or “cruel” or “depraved” and/or “depraved torture.”

All those terms have been litigated up and down the court system.  A useful understanding of this element or facts that must be proved before a finder of fact can impose the death penalty is that the nature or the killing was such that it is not a fast or painless death, or the killer tortured the victim before death overcame the victim.  Death is also imposed in certain cases in which the killing is a killing for hire, or done to escape detection (killing a witness), or the killing of a special protected class of individuals such as police officers, firefighters, rescue workers, judges, prosecutors and other special classes of victims.  Each state has or includes different special classes of victims in which the death penalty can or must be imposed.

What the Judge in Miami did was to strike down the new revised law.  Formerly, once a recommendation was made by the jury, and the recommendation had to be unanimous, the Judge could then decide on his/her own to impose death or not impose death. The U.S. Supreme Court last year ruled that plan or that structure unconstitutional and struck the Florida death statutes and their manner or method for imposing death.  The “new’ plan, the one that was found unconstitutional, had the jury decide by a vote of ten jurors to impose death and took the judge out of the process.  But the Miami Judge declared that ten is not constitutional and that the decision must be the decision of all twelve of the the jurors.

Now the appeal process begins and appellate court for the Miami district, the Third District Court of Appeals, will hear the case on appeal. That appellate courts decision will then be sent to the Florida Supreme Court. The Florida supreme court’s decision will then be the law of Florida unless the U.S. Supreme Court overrules or overrides the Florida’ Supreme Court’s findings. The process can take a year or two, but in all likelihood will be expedited.

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