2017 Annual Florida Bar Convention: Criminal Law Update

Episode Notes

Transcript

The Florida Bar Podcast

2017 Annual Florida Bar Convention: Criminal Law Update

06/26/17

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Intro: Welcome to The Florida Bar Podcast where we highlight the latest trends in law office and law practice management to help you run your law firm, brought to you by The Florida Bar’s Practice Resource Institute, you are listening to Legal Talk Network.

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Laurence Colletti: Hello, welcome to The Florida Bar Podcast brought to you by The Practice Resource Institute on Legal Talk Network, this is executive producer Laurence Colletti recording from the 2017 Annual Florida Bar Convention at Boca Raton, Florida. Thank you for joining us today, and in case you are wondering why you are not hearing Jonathon Israel or Christine Bilbrey, that’s because they’re very busy at the convention today and they have asked me to substitute-host for a couple of these today, and I am happy to do so, because joining me today across the table here’s Mr. Denis deVlaming, our return guest, welcome back, sir.

Denis deVlaming: Thank you. Thank you, Laurence.

Laurence Colletti: So excellent, I saw out there, I got a chance to peek in briefly for your presentation here on the Criminal Law Update and it looks like there is a lot going on, but before we get into that, some of our listeners may not know you, haven’t tune in to the previous year’s podcast, and you’re coming back. I think it’s your third time on our network. Tell us a little bit more about yourself, where do you work? What do you do?

Denis deVlaming: I am a criminal defense lawyer, I’m Board-certified, my law firm is in Clearwater, Florida. I was a former Assistant State Attorney and then I opened up my own practice and I specialize in Criminal Defense. Enjoy speaking at these seminars that you just indicated, I like to give them around the State, and I am also an adjunct law professor at Stetson College of Law, I teach Advanced Criminal Trial Advocacy and I have been practicing 45 years.

Laurence Colletti: Oh, that’s great, it’s fantastic. So like I said I got a chance to peek in on your presentation, and I think compared to last year, there’s a lot more going on, and so, yeah, you started – which I like, you started with the Supreme Court and then migrated your presentation into the Florida Supreme Court’s verdicts, and so I just wanted to look to you, trying to figure out where we start, it seems like it’s a lot of murder, there’s some Fourth Amendment, due process things going on this year, and so where would you like to start?

Denis deVlaming: I probably would start with the Hurst v. Florida, where the United States Supreme Court has struck down the sentencing scheme for Florida the way that we carried out the determination whether or not a person is going to be subject to the death penalty, and what happened was after they struck it down then the Florida Supreme Court had to rally and rewrite the law.

They rewrote it and instead of the unanimous verdicts they came with a recommendation of ten to two, if they get ten to two and recommend death that would be sufficient. That went back to the Supreme Court, they found that that’s not constitutional as well, it has to be unanimous verdict.

So that’s basically where we are now is they have to establish certain aspects of the death penalty, have to be found by the jury not the judge, and they have to be unanimous in nature.

Laurence Colletti: I’ve heard about this and read about this in other states that have the death penalty and it seems like states in general sort of backing away from the death penalty a little bit, and I’m wondering if it’s not just changing viewpoints on that particular punishment, but also may be sort of a CSI culture that there is more evidence available today than it ever has been before, there has been a fair amount of reported exonerations of innocent people that sat on death row waiting for the end of their life, and then found innocent later. I just wanted to kind of throw that to get your opinion.

Denis deVlaming: Well, and don’t forget it really depends on the makeup of the court. When the court’s makeup changes it can either be conservative or liberal in nature, and with makeup of our Supreme Court I think in general they want to make it more difficult. Probably they should for the sentence of death to be carried out. So I’m seeing a trend like that. I personally think we will not have the death penalty 30 years from now. I think they’ll get to the point where they realize it is more expensive to kill somebody than it is to give him a life sentence, and people, they’ll go, wait a minute, how could that be, they are no longer around, but it is true, because of the expense of all the litigation that goes back and forth in the state and federal courts.

Laurence Colletti: Interesting. Yeah, that’s an interesting prediction, looking forward to see whether or not that prediction comes true, so you also had a little bit of information on life sentences in minors, also something that seems to be changing over time here, and so there were some decisions made in that realm as well?

Denis deVlaming: Yes, United States Supreme Court decided Miller v. Alabama, and what they basically said is that a juvenile cannot be given a life sentence or a life sentence equivalent, in other words, if you give 90 years that’s a life sentence equivalent, for offenses that do not involve murder. And the Miller case basically has sent a lot of those cases back to the Trial Court to make a determination whether or not there is any redeeming qualities, anything in the child’s past that should change the sentence. They can still get a life sentence for murder but they are also still entitled to that hearing to determine whether or not that’s the best decision to give a juvenile.

(00:05:27)

Laurence Colletti: What kind of factors that they look for when they are making a decision?

Denis deVlaming: I think they are looking mostly on maturity, they are looking on their mental ability whether or not they were influenced by older people to come along and to do it. They recognize the juveniles their brains are not as developed, in fact, I think the development goes up to the mid-20s as far as development is concerned and these juveniles that are 14 or 15-years-old become impulsive, so they want to see whether or not they are the ones that are capable of being changed being rehabilitated or that they are throwaway kids that will serve the rest of their life in prison.

Laurence Colletti: Birchfield v. North Dakota, the blood samples in Fourth Amendment, you mention that obviously evidence and I know again there is a lot of CSI out there, people are aware of DNA and exonerating evidence and so, but that was pretty interesting from your presentation and there was a consent part of that as well, is that right?

Denis deVlaming: Is what?

Laurence Colletti: You said there was a consent part of that if you waive your rights.

Denis deVlaming: Yeah, Birchfield is a huge case, it’s probably up there with 06:29 and the other things. Birchfield, the law in Birchfield that was stricken down, is in the majority of the States, that says simply this, that if you are involved in a traffic accident where somebody is seriously hurt or killed and you are suspected of being under the influence of alcohol or drugs that you have to submit to a blood draw, and if you don’t submit to a blood draw they can literally take it from you, hold you down and do it. That’s what our law in Florida was and it’s been that way ever since I practiced law for decades.

What happened was, it went up to the United States Supreme Court and the argument was, breath is different than blood. Breath does not require an intrusion into the body, whereas the extraction of blood requires a syringe in an intrusion, therefore it is a Fourth Amendment violation, and because it’s a violation of the Fourth Amendment you have to get court permission, ipso facto, a search warrant to be able to extract the blood.

The problem with that is it takes time to get a warrant and every minute that goes by there is a dissipation of that alcohol or of that drug, and so the police want to get it as soon as possible.

And you just mentioned “consent”, the police usually say, will you consent to a blood draw? And of course the public does know about the Birchfield case, and some of them say, do I have to? And they’ll say, well, if you want, I’ll get a warrant, and you’ll sit here until I get a warrant, and then sometimes people go, all right, okay, I want to go home or what have yuo.

Laurence Colletti: At that point they waive their rights.

Denis deVlaming: At what? That they waive. You can waive any right including the Fourth Amendment right, and then they can take it. But if the police say, no, you can’t have it under any circumstances then they have to get a warrant. The catch-all is the US Supreme Court said if there are exigent circumstances, “exigent” means emergency and it could be a case where the accident occurred way in a rural part of Florida where the closest judge is two hours away, for example. They might say, well, it would take too long to get it, we understand that that would include exigent circumstances, so even the effort to try to get it wouldn’t work, okay, go ahead and take it. And that’s going to be litigated, the Birchfield case is new, that word “exigent” is going to be litigated over the years.

Laurence Colletti: All right, second to last question, you covered Pena-Rodriguez v. Colorado and that was curious one to me because I had not heard of that case before today, and so, this had a little bit to do with racial bias and how do the scenario play out?

Denis deVlaming: Pena-Rodriguez changed the law just like the Birchfield case we just talked about in a material way. It’s always been that courts have said we are not going to get into the jury room and find out what considerations they had in discussing their verdict. If it inheres in the verdict itself, so it is none of our business.

And there is a Florida Supreme Court case in 2013 where they prove that the people were discussing in a criminal case the fact that the defendant did not testify. It’s very, very clear the judge tells jurors you are not to discuss whether or not the defendant testified or did not testify, that’s none of your concern.

(00:09:46)

Well, even when it’s proven that they did because it inheres in the verdict, the verdict will not be an attack. Well, what Pena-Rodriguez v. Colorado said was, if it involves a clear case of racial bias and prejudice, and in this case Pena-Rodriguez was Hispanic and some of the jurors said that the jurors were discussing Hispanics in a very, very negative way saying they shouldn’t be believed and the witnesses that were called they are all liars, you can’t believe a Hispanic person, and it was a horrendous prejudice that was discussed. It affected some of the jurors so much they came out and told the judge, this is what was talked about.

Well, the knee-jerk was, well, it inheres in the verdict, that’s the law. Well, it went up to the United States Supreme Court and they said we are going to carve out an exception, when it is clear that the verdict is based upon racial bias like it wasn’t in Pena-Rodriguez that we will step in and reverse the verdict.

Laurence Colletti: Did they list like some standards or some examples of how they will come to that conclusion?

Denis deVlaming: Not really, and you have to understand the US Supreme Court, they don’t like bright line because when they make a bright line that’s what it is, it’s obvious, they always want to do it so that they can look at each case and say, yes to this, no to that, and so forth.

So all they did is they discussed the facts in Pena-Rodriguez and said this meets him, it was clear that they would not believe any of Rodriguez’s witnesses only because they were Hispanics.

So I think if there is a side comment about race or what have you, but it wasn’t paramount, it’s probably not going to be a reversal, they are going to say it’s harmless error, but in this case it was pivotal.

Laurence Colletti: So since you have been in the mood for making predictions today, so do you think there’s going to be some follow-ups on that particular case?

Denis deVlaming: Yes, I do, and I think the reason is they used the word “constitutional” and they said it was a constitutional violation, and frankly, if you stop and think about the Florida Supreme Court case I just talked about, and that is a defendant’s right to remain silent, what is that? That’s the Fifth Amendment of the Constitution. So if they discuss that, isn’t that a constitutional violation when they talk about a defendant not testify, therefore he must be guilty, that’s going to be tested too.

Laurence Colletti: Interesting, interesting. Well, Denis deVlaming, it’s always a privilege talking with you, always interesting, and I just have one last question for you, so our listeners out there if they want a follow-up, learn a little bit more about what they heard today, what you presented during this week, how can they get hold of you?

Denis deVlaming: They can e-mail me if they like and it’s my name which is [email protected], just make sure they put Florida Bar or something like that in hint or they will get deleted.

Laurence Colletti: Well, this has been another edition of The Florida Bar Podcast, brought to you by The Practice Resource Institute on Legal Talk Network. I want to thank our guest for joining us today. Thank you so much, Denis, and if you like what you heard today, please find us and rate us in iTunes. I’m Laurence Colletti, until next time, thank you for listening.

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