Happy New Year from Bodiford Law

Wishing everyone a happy and prosperous new year.  After some much needed time off, we will be back in the office on January 2, 2018, hitting the ground running.

Call us for your Tallahassee criminal defense needs – let our expertise help you.

Tallahassee criminal courts in 2018 . . . what to expect

2017 was tough in Tallahassee criminal courts – while crime statistics were down (artificially so, it may be, as the rumor is that local law enforcement is purposely not making as many arrests in order to push the stat lower and raise Tallahassee’s poor reputation for being a crime-ridden city), big cases were up.  Tallahassee courts processed several high-profile cases- some of which ended in acquittals, some of which never went to trial and have been continued (the Markel murder trial), one of which (Segura) ended in a mistrial, and one that was investigated and not charged (the FSU fraternity death case).  We saw the establishment of a new veterans’ treatment court.

2017 saw laws change, and policy change – we saw the first year of a new Second Judicial Circuit prosecutor’s term, which always takes adjustment on both sides.  Jack Campbell seems to be working very hard to make the system better, and also seems to have a good compass as to what needs to be done.  We wish him well in 2018!

In 2018, expect to see the legislature continuing to be “tough on crime” and continue its quest to make EVERYTHING in Florida illegal.  Segura will be retried, to the great expense of Leon County citizens.  The FSU fraternity case will either end, or there will be charges.  The Markel case may not get tried, because the out-of-town attorneys for the defense can’t seem to get it ready.  DUI arrests will likely go up, and I sense that financial crime arrests and prosecutions will also increase (there has been a slight rise ongoing for some time).

As a Tallahassee criminal defense attorney, I plan to continue to provide the best service possible to my clients.  My book, Florida Criminal Cases Notebook (James Publishing) should be out in early 2018.  Another book that is being completed, Cross Examination in a Nutshell (West Academic) should be out in the late spring.  James Publishing and I are looking at another book to come out in late 2018, on the topic of Florida Criminal Procedure.  We tried several jury trials in 2017 – all of which were acquittals.  That’s a rarity (even for me!), and while we hope it will continue in 2018, we are going to hope for the best and continue to prepare for anything.

We wish you a Happy New Year and a prosperous 2018!

SCOTUS rules that remaining silent is NOT an invocation of the RIGHT to remain silent – and can be used against you a trial!

Today, June 17, the U.S. Supreme Court issued its opinion in Salinas v. Texas.  The gist of the opinion is that not saying anything is not an invocation of the right to remain silent guaranteed under the 5th Amendment.  Yes, you read that correctly.  It says that someone being questioned by police has to say the magic words, and actually take the formal action of invoking the right.  This case says that a prosecutor can then actually comment on the silence in court!!

It is clear that once a person is arrested and the police start an interrogation, the Miranda warnings are (supposed to be) given.  “You have the right to remain silent, right to a lawyer if you cannot afford one and anything you say can be used against you in court . . .  ”  The Supreme Court has previously held that if a defendant elects not to testify at the trial, the prosecutor comment on that silence – the silence at trial, in the courtroom.  This case says that the out-of-court silence can be used against the defendant in trial.

In an opinion by Justices Alito, Scalia, and Thomas, the SCUTOS did not tell us specifically (see below) whether or not the prosecutor can use silence outside the courtroom as evidence of guilt.  The Court said a defendant who remained silent during police questioning and did not “formally” invoke the 5th Amendment right to remain silent, would in turn allow prosecutors to offer commentary to the jury on that silence in court.  This decision now put the burden on the individual to invoke, not the government to not use the silence.  That part of the decision is most troublesome.  As the dissent notes, in the circumstances of the case, it was clear that the defendant was invoking his right to remain silent. . . by being silent.  This is going to be particularly problematic for persons who who lack education, persons who do not speak English very well, persons who may suffer from mental problems, and persons who may be under the influence of alcohol.  They may be trying to exercise a right, only to have their silence be argued to a jury; I can hear it now:  “this defendant had an opportunity right then and there to tell the officers his side of the story, and didn’t.”  Oh, boy, at the can of worms this is going to open.

As one commentator has said:

Surprisingly, the Court did not answer the primary question court watchers were expecting, which was whether a prosecutor can deride a person’s reliance upon the right against self-incrimination when that person has not been arrested. The Court said it did not have to reach that question because the person here, Salinas, never really properly invoked his constitutional right against self incrimination. And because he didn’t, there was nothing wrong with the prosecutor’s comments at his trial.  This is a lousy ruling. . . . This is a bad day for the Bill of Rights.

Drew Peterson defense team commenting on Casey Anthony

The Huffington Post has an article about Drew Peterson (who is charged with killing one wife and suspected of killing another wife) commenting, through his attorneys, about the Anthony acquittal.  The Peterson defense team approved of the verdict, commenting, “The jury’s job is not to act emotionally. A jury’s job is to evaluate whether or not the government has sufficient evidence, and it looks like in the Casey Anthony case they felt the government did not have sufficient evidence to prove their case.”

In the new era of online news and social media coverage, this is an interesting move.  We will have to wait to see what, if any, impact these comments will have on Peterson’s trial.  I probably would not have done anything to link, in any way, my client to Casey Anthony (arguably one of the most unpopular people in the world).  The comments were benign and should not draw any ire.  Maybe the comments caught my eye in light of the Anthony team’s use of online comments to monitor public opinion/sentiment and tailor their arguments.

As I posted last week on Twitter, we are in a new era, where social media plays a part in the preparation of high-profile trials.  Perhaps the Peterson defense team knows EXACTLY what they are doing, and are trying to send a message to potential jurors to be open-minded, unemotional, and fair.  If that is the case, it may end up being a brilliant move.

The question becomes, what happens to all those defendants who are going to trial on cases with NO media coverage.  Is it fair that those defendants don’t have access to the media.  Who knows.  We’ll see. . .