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August 2014 Archives

Can my sentence be increased if I testify on my own behalf and am convicted?


Unfortunately, in federal court, yes your sentence can be increased. There are many pitfalls to testifying at a criminal trial. The most obvious is that you subject yourself to cross-examination by the prosecutor. If the prosecutor does a good job and makes you look like your not telling the truth or that your version of events just doesn't make sense, you'll probably be convicted. And then, the prosecutor will argue you committed perjury on the witness stand. I have seen this happen as a Jacksonville criminal defense attorney. But if your version of events rings true and the prosecutor can't shake you, you'll probably carry the day. Jurors love hearing from the accused, even though they're instructed that if they don't they can't hold it against them.

Can a judge make comments during a trial that favors the prosecutor?


No, he cannot. United States v. Rivera -Rodriguez, decided by the 1st. Circuit Court of Appeals on August 4, 2014, is a good example of what happens when judges decide to get into the action of questioning witnesses on their own. I have witnessed this myself as a Jacksonville criminal lawyer. Carlos Rivera- Rodriguez was convicted of drug possession and distribution charges. He appealed his conviction, claiming that the judge improperly questioned the witnesses against him and further made an unfair comment during the prosecutor's summation. Rivera-Rodriguez and Mr. Mercado-Cruz were among sixty four co-defendants charged with involvement in a conspiracy to distribute various types of illegal drugs. They were the only two who elected to stand trial rather than accept plea agreements.

Can a judge prevent a lawyer from questioning potential jurors about media coverage?


No, he cannot, thanks to Dippolito v. Florida, decided July 30, 2014. As a Jacksonville criminal defense attorney, I have often had to fight judges about letting me question potential jurors about their exposure to media coverage. In 2011, Dalia Dippolito was convicted in a murder for hire scheme in Boynton Beach, Florida. The jury found Dippolito guilty of paying a Boynton Beach undercover cop, posing as a hit man, $3,000. to kill her then spouse Michael Dippolito. A video of police officers approaching Dippolito at a staged murder scene in August of 2009 went viral and was viewed hundreds of thousands of times on YouTube. It was played at her trial and helped persuade the jury to convict her. The incident got a great deal of press coverage, both nationally and internationally. And because of the great media hype, Dippolito's lawyers wanted the trial judge to let them question potential jurors individually about their awareness of her case, what they had read or heard and whether or not they (the potential jurors) had been influenced one way or the other. Sounds like a reasonable request, right? After all, the jury selection process (known as voir dire) is crucial. It's a process that allows both the prosecution and defense to question potential jurors about their individual biases in the hopes of weeding out those jurors who cannot be fair and impartial. But a Palm Beach County Judge refused to allow it. The 4th District Court of Appeal said that was a mistake as it denied the defendant a fair trial. As a result, the higher court has overturned (thrown out) Dippolito's conviction and 20 year prison sentence. She has been released from jail, put under house arrest and $500,000. bail. "She wasn't provided a fair trial from day one", her lawyer said. At the start of jury selection, Dippolito's lawyers asked the prospective jurors if they had heard about the case. 28 of the 54 prospective jurors raised their hands. At this point, her lawyers were concerned that the entire jury pool could be contaminated if one juror mentioned something prejudicial in front of the others. But the Judge asked a sweeping question of all the jurors collectively (as they always do) and concluded that all the jurors could be fair and that none "held any strongly held opinions on the merits of the case." When Dippolito's lawyers questioned the prospective jurors about their knowledge of the case, one juror mentioned a report that Dippolito "had tried to poison her husband with antifreeze". The higher court, in overturning her conviction, wrote that Dippolito's lawyers "had the right to ask these jurors what specific information they had learned from the media; the jurors' show of hands was insufficient to protect her right to a fair and impartial jury."

Can a prosecutor appeal a sentence of probation in federal court?


Yes a prosecutor can appeal a sentence of probation in federal court. As a Jacksonville criminal attorney, I can say it doesn't often happen, but the case of U.S. v. Hayes, decided by the 11th. Circuit Court of Appeals, on August 12, 2014, is an example of when it can happen and why. Mr. Hayes is a 67 year old businessman who- over a period of four years- doled out over $600,000. in bribes to a state official in order to ensure that his company would continue to receive government contracts. Hayes' company reaped over five million dollars in profits as a result of the corrupt payments. Hayes ran a computer software company. He bribed Roy Johnson, the chancellor of the education department, to have school contracts awarded to Hayes' company for computer software services.

Does my lawyer need to be present in the courtroom for my entire trial?


Yes, your lawyer needs to be present, as the 11th. Circuit Court of Appeals decided in U.S. v. Roy, on August 5, 2014. As a Jacksonville criminal defense lawyer, I would never be absent for any part of a trial. But Mr. Roy's criminal defense attorney was temporarily absent from the courtroom when testimony was admitted into evidence, contributing to his conviction. As a result, Roy claimed that his conviction was obtained in violation of his Sixth Amendment right to counsel. He argued that a new trial is required because his counsel was absent during a "critical stage" of his case. Apparently, the afternoon session of Roy's trial began when his lawyer was not in the courtroom and during this time, evidence directly inculpating Roy was presented to the jury.

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