Florida Bar Annual Convention 2019: Criminal Law Updates with Denis deVlaming

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The Florida Bar Podcast:

Florida Bar Annual Convention 2019: Criminal Law Updates with Denis deVlaming

06/28/2019

 

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

 

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Laurence Colletti: Hello and welcome to The Florida Bar Podcast, recorded from the 2019 Florida Bar Annual Convention in Boca Raton, Florida. This is Laurence Colletti and I’m your host for today’s show. Stepping in of course as a substitute of Christine Bilbrey and Karla Eckardt, I will try to earn that role. And joining me now I have a returned guest, I have the distinguishably dapper, always Denis deVlaming. Welcome to the show, Sir.

 

Denis deVlaming: Thank you, thank you, Laurence.

 

Laurence Colletti: So you are a return guest. We’ve had you on before. I listed one of my favorite parts of the Florida Bar Annual Convention, having you on and do the Criminal Law Update. I love this series that the Florida Bar puts on it.

 

So before we get to your Criminal Law Update, let’s for some of our listeners that are less familiar, tell us about yourself, where do you work, what do you do?

 

Denis deVlaming: Okay. I have been practicing law for 47 years. Laurence, I became a prosecutor in 1972, prosecuted in the Sixth Judicial Circuit of Florida and

jump defense, became a criminal defense lawyer in 75, and I’ve had my own firm ever since.

 

Laurence Colletti: Excellent, excellent. So your presentation was impressive. You rattled through so many cases. It was actually difficult to find the ones, so many very interesting cases that were presented at the Supreme Court level here. So we highlighted a few and I’d like to try to get through as many of these as we can in 15 minutes or so, so how does that sound.

 

Denis deVlaming: Let’s go rock and roll.

 

Laurence Colletti: All right. So let’s open up. There was one that was seven days old that you rolled into your presentation materials here, so it was Rehaif v. United States, and this is the one where they added, the Supreme Court added a knowledge that you’re not supposed to have a firearm to a charge.

 

Denis deVlaming: Yeah traditionally felon in possession of a firearm charge, all they had to establish was that the person knowingly possessed a gun and that he was a felon, or he or she was a felon, and that was it and that you could convict them and imprison them and so forth.

 

I went up to the United States Supreme Court and the question that they had was whether or not along with knowing that you have a gun, whether or not you know you’re of a class of people that are not allowed to have a gun. In other words, being a felon status you cannot possess a firearm, which surprised me based upon the makeup of the Supreme Court. It was a seven-to-two decision which also surprised me, because I would think based upon the conservative nature of the court, they would say there’s no problem in going after convicted felons for possessing firearms.

 

Laurence Colletti: Okay, interesting case. Next one on the list, a Gamble v. United States, and so this was the separate sovereign doctrine, I’ve been reading about this in the news a lot, so can you give us the highlights for that one?

 

Denis deVlaming: Yeah, and as I said in the presentation, the separate sovereign doctrine has been around for a long time, and I was almost surprised that the US Supreme Court accepted this case, because it’s rather settled on, but I think they wanted to make sure that they were very clear on it, and what it means is simply this. That states and the federal government are two separate sovereigns and it is permissible, the United States Supreme Court for somebody to be prosecuted in one of those sovereigns and then prosecuted for the same offense in the same conduct in another sovereign.

 

In other words, you could be charged in Florida with a crime, you could be a convicted or acquitted and then the government can pick it up. It happens a lot in drug cases because the government wants to charge drug trafficking after somebody has been charged with drug possession and they said it is permitted, it is permitted, they can under the separate sovereign doctrine.

 

Now where that might come up is, and discussion was in President Trump who has indicated that he might give somebody convicted of a felony and sentenced to prison in Federal Court, he might have pardoned them, and if he does pardoned them, that means they walk free. However, in the state where they were charged if they pick it up and I think this was the one that we’re thinking about was New York State, they could charge him in state court with the same offense, convict them and sentence them and put him in prison and the President of the United States cannot pardon a state crime.

 

Laurence Colletti: Interesting. So how far does the separate sovereign doctrine apply? I mean if you have — let’s say there’s two federal bodies like — I don’t know all the intricacies of how it would work, but there’s an FBI bust, there’s a DEA bust for the same set of circumstances. Is there a chance for preventing double jeopardy if somebody gets acquitted at one?

 

Denis deVlaming: Well and that’s — actually that’s a good point, because the separate sovereign has to do with the State and the Federal Government being separate sovereigns. Each one of those is a sovereign, so in other words you cannot have a Trial in Federal Court lose and then have the another federal prosecutors say, well okay now we’re going to charge him with such-and-such. No, you got the same sovereign. It would only be if the state picked it up that they could go ahead with it.

 

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Laurence Colletti: So that’s a real demarking lie, State v. Federal Powers.

 

Denis deVlaming: That’s right, exactly right, State v. Federal Powers right, and as I indicated before, the primary example is in the Rodney King case out in California. The officers will put on trial in state court, they were acquitted and there was such a demand for Cold Justice that the feds picked it up and they filed motions to dismiss based upon double jeopardy to women. We’ve already been on trial and they said, nope, different sovereign, and they were convicted and punished.

 

Laurence Colletti: All right, Madison v. Alabama, so this was the Eighth Amendment case, the defendant overtime on death row has developed dementia.

 

Denis deVlaming: Yeah, this was a little bit surprising to me. Well what happened was this particular defendant was on death row for decades and over that period of time because you’re in solitary confinement, he developed dementia and it got to the point where his lawyer says, he don’t understand and remember anything that he did. He doesn’t remember the murder. So how can you convict somebody and punish somebody if they don’t know the facts of their case? They don’t remember it because of dementia.

 

Well apparently the US Supreme Court ended up saying that if they understand, the reason that they are going to be killed and that is that they did kill somebody, the fact that they don’t have a memory of the facts of the case will not bar conviction. So this is going to go forward to a death sentence.

 

Laurence Colletti: All right, so we’ll change gears, we’ll go into something a little bit more lighthearted. So Nieves v. Bartlett and so, this is the case where the police were breaking up a party and somebody got singled up because they were a little bit more mouthy to the police officers that were coming in to break up this party. I just thought that like you have surprised, this made it all the way up to the top.

 

And so, tell us a little bit about that.

 

Denis deVlaming: Yeah this was kind of an interesting and in a sense and kind of a funny case. It was in a very, very, very small town and the only thing you had to do in this small town was to drink alcohol and party. Well, they got rowdy and the police were called. But when the police came, they started talking to some of the party goers.

 

Well Bartlett ended up going over and becoming very mouthy because he was intoxicated and he told the police that they have to leave, and then he looked at the people and said you don’t have to talk to the police, and the police looked at Bartlett and said wait a minute, you’re interfering with our investigation.

 

Well his mouth continued until such time as the cuffs came out and they arrested Bartlett for obstructing and opposing the police in the performance of their duties.

 

So Bartlett gets taken off to the hoosegow, wakes up in the morning and goes in front of the judge and the prosecutor stands up and says judge, we’re not going to go forward it’s a relatively minor case.

 

And so, we’re going to dismiss the charge against him. Well, with that dismissal, Bartlett you ruined his party night and you ruined his night in the hoosegow. So Bartlett decided to file a lawsuit. And he filed a lawsuit for wrongful arrest of the police officer to arrest him.

 

He said you had no probable cause, I have a First Amendment right to speak to you the way that I do. And like you say, for some strange reason it made its way all the way to the Supreme Court and it did on the basis of a wrongful arrest lawsuit against the police, it wasn’t a criminal case, it was a civil case.

 

And what they basically said was as long as there’s probable cause, if the police have probable cause and they arrest somebody even though the charge is dismissed, they have immunity against being sued. The exception they said is if the police singled him out only because of his First Amendment right, when other people are doing the same thing but not mouthing off then a lawsuit will proceed.

 

Laurence Colletti: Well so strike one for the loud party goer.

 

Denis deVlaming: That’s right, yeah the loud party goer needs to shut up.

 

Laurence Colletti: All right, so Carpenter v. United States, so this I thought was really interesting. So obviously intersection of a lot of additional information because we’ve got cell phones on us constantly, information being led out everywhere, our location, our personal information. So this one involves cell phones in a car and third parties and what’s admissible versus what is not. And so could you give us a little bit of a background on that?

 

Denis deVlaming: Well yes, the US Supreme Court has now ruled that an individual’s cell phone is covered under the Fourth Amendment which was originally drafted that says that it protects a person’s, person and papers and effects, those are the actual three words; persons, papers and effect. And although there were no cell phones back in the 1700s, they said what they really meant was anything that’s personal to them that they would want protected and it’s protected.

 

So your cell phone is protected in the sense that if they try to access it, they will need a warrant to be able to go in and get it.

 

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The problem arises when they try to access a third party’s cell phone to look at it, do you have a right of privacy in someone else’s cell phone, and they said no, you do not have a right of privacy in a third party cell phone, because there’s no expectation of privacy.

 

Laurence Colletti: So make sure you pick your friends wisely.

 

Denis deVlaming: That’s right. Yeah and what you send them pick wisely too.

 

Laurence Colletti: Absolutely. All right, McCoy v. Louisiana, so this one surprised me a little bit that this was even an issue. So this is the case where there’s a conceding defense over the defendant’s wishes in terms of a plea. And so could you give a little background on McCoy v. Louisiana?

 

Denis deVlaming: Yes, actually, it wasn’t a plea case, it was an actual trial case.

 

Laurence Colletti: Okay.

 

Denis deVlaming: And generally speaking, a lawyer has the ability to make all decisions in a case. For example, if somebody wants an alibi defense but the better defense is an identity defense, a lawyer can trump the client, and say, no, we’re not going with alibi, that’s not going to fly. We’re going to go with identity because nobody can pick you out or they picked out someone else so they described you six feet tall and you’re really five feet tall or what have you.

 

And the lawyer makes that decision. So the lawyer really has a carte blanche in the decision and basically the decisions of representation. The client up until this case trumped that in two areas; number one, whether to accept a plea or not even though the client — the lawyer may think he should, he can reject it, totally his decision.

 

And also whether to testify or not, the lawyer can say no, don’t testify and he can say I’m going to testify. He trumps the lawyer. So what happened here was the evidence was overwhelming. So the lawyer went in and said I’m going to tell the juror you did it, but I’m going to base our defense on saving your life, so that we get a life recommendation rather than death, because this is a horrendous case.

 

The client ended up saying no, you do not have my permission to do that. I want to take the stand. I’m going to say I wasn’t there, even though the lawyer said, this is crazy, you’re going to be convicted.

 

So the lawyer did it anyway. The lawyer says no, it doesn’t come within the two areas. I make those decisions and I’m going to concede the guilt, that he was convicted and sentenced and what happened was the US Supreme Court said a client does trump the lawyer in deciding whether or not to concede guilt of the crime or even a lesser included offense — a lesser charge, and that without permission the lawyer cannot do that.

 

Laurence Colletti: All right, Nelson v. Colorado. So this is the money back for vacated convictions.

 

Denis deVlaming: Yeah this is actually kind of is common sense case if you ask me. Nelson ended up being convicted, his case went up on appeal, it got reversed. It went back to the trial court and the prosecutor decided not to retry him said, you’ve been in jail long enough, we’re not going to retry it.

 

So Nelson said all right, I want my cost back. I had to pay them before the appeal and I won the appeal and they said no, no, no, no, no, no, you had to pay it, you paid it, the money is ours, went up to the Supreme Court and the Supreme Court said no, no, no if it got reversed, anything that he paid into it with exception of legal fees, any court cost, transcript costs, things that and even restitution that he paid has to be returned.

 

Laurence Colletti: All right, so last case, Birchfield v. North Dakota. So this is the blood evidence in the Fourth Amendment case where breathalyzer okay, needing needles to get some blood samples, not okay case.

 

Denis deVlaming: Yeah, I included this one, because the ones that you just indicated were 2018 and 19 cases, recent cases. The Birchfield case is a 2016 case. It’s not brand new, but it’s so important that I decided to include it. And what Birchfield v. North Dakota ruled was, it used to be that if you were involved in a crash and there was serious personal injury or death, the police could take your blood and the grounds for that was if we didn’t take the blood, and we waited, you would sober up, it would dissipate, we wouldn’t get a right reading.

 

So therefore we’re going to go ahead and take it and the statutes around the United States said, no, we’re going to take it because we need the evidence. And for so many years up until a Birchfield, that’s exactly what happened. Went up to the United States Supreme Court and they said you know it’s okay to take breath because it doesn’t intrude into your body, it’s not an intrusive violation.

 

You stick a needle into somebody and you take blood out of them, that’s intrusive enough, you need to ask a judge for permission. So they’ve now ruled that if there’s a DUI manslaughter or serious personal injury, the police have to go and get a warrant.

 

So what there now is I call them cookie cutter warrants, they’re already prepared, they just fill in the blanks and they wake a judge up if it’s 3:00 in the morning, the judge signs that they come and they take the blood. There are some exceptions to that. In very rural areas, if you don’t have time and you can’t find a judge, and it takes too many hours to be able to accomplish that, that they will accept exigent circumstances and still allow the blood to be entered.

 

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Laurence Colletti: All right, well Denis, thank you so much. I mean we’re coming to the end of our program and I want to thank you again for joining us at another one of these Florida Bar Annual Conventions. And so if our listeners, they wish to follow up learn more about what you talked about how can they reach you?

 

Denis deVlaming: The best way to reach me frankly is my email address, which is [email protected], it’s my name and if you shoot me an email, put the Florida Bar so I don’t delete it, I would be happy to answer their questions.

 

Laurence Colletti: Excellent. That’s all the time we have for this episode of The Florida Bar Podcast. I want to thank our listeners for tuning in. And if you like what you heard, please rate and review us in Apple podcast, Google podcast, Spotify or best yet, your favorite podcasting app.

 

I am Laurence Colletti, until next time, thank you for listening.

 

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