Mary S. Scriven, United States District Judge for the Middle District of Florida, Orlando Division, held Florida Statute 893.13, Florida’s drug statute, unconstitutional in an order filed on July 27, 2011. In accord with Rule 57 of the Federal Rules of Civil Procedure, a Declaratory Judgment shall be entered separately, declaring Florida Statute, 893.13 unconstitutional. In her 43 page order, Judge Scriven granted Petitioner, Mackle Vincent Shelton’s Petition for Writ of Habeas Corpus under 28 U.S.C. Section 2255.
Click for the full text of the opinion.
Judge Declares Florida’s Drug Law Unconstitutional
July 28th, 2011Manuel Valle’s Criminal Defense Attorney Successful in Staying Execution Over Drug Concerns
July 28th, 2011
On Monday July 25, 2011 the Florida Supreme court determined that Manuel Valle, convicted of killing a police officer, had valid concerns regarding the new death penalty drug. As a result, Valle’s death sentence has been postponed until September 1. In general, an inmate’s concerns elsewhere have not put a stop to executions.
According to an article published by Reuters, the Supreme Court determined that “[Valle] has raised a factual dispute, not conclusively refuted as to whether the use of pentobarbital in Florida’s lethal injection protocol will subject him to a ‘substantial risk of serious harm.’”
What is the difference between pentobarbital and sodium thiopental (the drug previously used)?
Not much except that Pentobarbital is often used to euthanize animals. The reason many correctional facilities are using the drug is because there is a shortage of sodium thiopental and it will not be made by U.S. manufacturers any more.
Valle’s lawyer’s argued that pentobarbital will subject him to substantial harm. It isn’t uncommon in recent days that a criminal defense attorney will argue the risk of harm to postpone a sentence.
Man Accused of Murder Will Represent Himself in Court
July 26th, 2011The jury selection process has begun for a Pinellas County man accused of killing his wife over 10 years ago. Robert Temple is facing first-degree murder charges and has announced that he will be representing himself in court.
With such serious accusations and convictions at stake, Temple is making a very bold move by deciding to act as his own attorney. Temple has no legal background, but according to a TBO article, he is finding encouragement from the recent acquittal of Casey Anthony.
“Nobody believed Casey Anthony, and I see she got found not guilty,” Temple said. “It’s a matter of what the proof shows, and I believe I have enough proof to show I didn’t kill my wife.”
It is not completely surprising that Temple finds encouragement from the Casey Anthony case, but it does seem unreasonable that he is going at this alone. Having the expertise of a criminal defense attorney is certainly one of the key components that helped make Casey Anthony’s case. Although evidence is the major piece of the puzzle, the knowledge and experience that a defense attorney would provide is essential.
Temple has many forces working against him in this case; no attorney, a “forged” confession document, and his ex-girlfriend, who allegedly helped clean up the murder scene, is testifying against him. Will Robert Temple do himself justice or will he end up regretting the decision to act as his own attorney?
Charges Reduced for Florida Teen Accused of Killing Parents
July 19th, 2011
Tyler Hadley, 17-year-old male from Port St. Lucie, Florida has been accused of murdering his parents, Blake and Mary-Jo Hadley. Hadley allegedly bludgeoned his parents to death with a hammer Saturday night before throwing a party where 40-60 teens attended as guests.
Hadley was appointed a public defender before facing a judge from St. Lucie County Jail, in Fort Pierce, via closed circuit camera. He was first charged with two counts of first-degree murder which have now been reduced to second-degree. No reason has been given as to what Hadley’s motive was or why the charges were dropped from first-degree murder to second. See the story from WSVN News.
First-degree murder is considered premeditated while second-degree is categorized as a crime of passion. Given the murder weapon, and the events that took place afterwards, it’s hard not to wonder, why the drop in charges? Was there a fight between the parents and Hadley prior? Is it because of the suspect’s age? There are many questions to consider, and this is only a few days after the incident. It will be interesting to see what approach the criminal defense lawyer takes in this case. We don’t know much but this is certainly a case to watch as more develops.
FAQ’s about the Federal 2011 Retroactive Crack Guideline Amendment
July 13th, 2011
Overview: In 2010, Congress passed the Fair Sentencing Act (FSA) which increased the amounts of crack cocaine that triggered the mandatory minimum sentences for federal crack cocaine crimes. The effect was to lower crack cocaine sentences. The FSA also narrowed the ratio between the powder and crack cocaine offenses from 100:1 to 18:1. Under the old law, a five (5) year mandatory minimum sentence was in place for possessing with the intent to distribute 5 grams of crack or 500 grams of powder cocaine. Under the new law, 28 grams of crack and 500 grams of cocaine triggers the five (5) year minimum mandatory sentence.
Q. Will the 2011 crack cocaine guideline amendment be retroactive?
A. Yes. On June 30th, the Commission voted unanimously to make the amendment retroactive. This means approximately 12,040 federal crack offenders sentenced under the sentencing guidelines (U.S.S.G.) before November 1, 2010, may be eligible for sentence reductions.
Q. When does the retroactive crack amendment go into effect?
A. November 1, 2011
Q. How can federal prisoners serving time for crack cocaine offenses benefit from the amendment?
A. No one gets a sentence reduction automatically. A motion under 18 U.S.C. 3582©(2) must be filed in the court that sentenced the prisoner. The court will likely give the prosecutor the opportunity to oppose the reduction. The court can give all, part or none of the requested sentence reduction. There is no guarantee that any prisoner will receive a sentence reduction.
Q. Who is eligible to seek a sentence reduction based on the retroactive crack guidelines:
A. Prisoners are eligible to seek a sentence reduction if they:
- were convicted in federal court – it will not benefit people convicted in state court for state violations of crack offenses
- were convicted of a crime involving crack cocaine – it will not benefit people convicted of crimes involving other types of drugs
- were sentenced before November 1, 2010
- are serving a guideline sentence for crack cocaine – it will not benefit those serving a mandatory minimum sentence of five or ten years without any additional time under the sentencing guidelines.
- are not on supervised release
- are not in a federal halfway house – if you are already in a half-way house, you are likely to be released before the retroactive amendment goes into effect.
Q. Are career offenders eligible for sentence reductions?
A. Most likely no. Career offender sentences depend largely on the charge the person faced and the statutory maximum penalty that charge carries. A separate guideline section USSG 4B1.1 controls career offender sentences and was not reduced by this amendment.
Federal prisoners convicted for crack offenses and sentenced prior to November 1, 2010 should contact a federal criminal defense attorney in the district where they were sentenced to see legal representation to determine if they are eligible to see relief under this retroactive crack guideline amendment.
July 1st, 2011
Last month, I posted about New Jersey lawyer, Joseph Rakofsky regarding his representation of a criminal client named Dontrell Deaner in a murder trial in Washington, DC after The Washington Post’s article. Mr. Rakofsky is unhappy about the content of the post and believed it defamed him. Thus, I am included in the Supreme Court of the State of New York civil action of Rakofsky v. The Washington Post Company, et al. As a fellow criminal defense practitioner, I regret this misfortune that has befallen Mr. Rakofsky. To the extent that I have in some way perpetuated others’ comments on his professionalism, I wish that had not occurred.
Much like the late night pundits comment daily on other public figures, the blawgosphere has heaped a great deal of abuse and criticism against Mr. Rakofsky regarding this representation. The Washington Post article speaks for itself. It did not, it appears, have the benefit of the full five days of trial and Mr. Rakofsky’s performance to critique. It cited the judge’s comments from the bench in a small snipit in time over a lengthy proceeding. If Mr. Rakofsky’s allegations in his lawsuit are accurate, the Washington Post failed to include that he had petitioned the court to withdraw as Mr. Deaner’s counsel due to an attorney-client conflict, but instead indicated that a mistrial was declared over [his alleged] incompetence. If so, this was not an accurate representation of all of the facts per Mr. Rakofsky.
It is easy to pick up these articles and run with them because it makes for interesting posts. Nevertheless, we should all endeavor to look beyond the content that newspapers print to the people behind them. There is a great deal more to know about Mr. Rakofsky than what was written in my blog. No doubt, his course of conduct going forward will give better insight into the kind of man and lawyer he is. I, and perhaps many of the other bloggers who cited to the Washington Post’s article, did not have the benefit of the entire story. We should have done better.
Mr. Rakofsky has chosen to speak in court rather than commenting on various blog posts. Those who have formed conclusions one way or another about Rakofsky have taken the bloggers’ bait, alas, it would seem such people cared for the salacious headline rather than to paint a complete picture. I am responsible for my blog post and I was wrong not to be more comprehensive in my comments. Give Mr. Rakofsky the benefit of the doubt until you know the whole story, then make your own conclusion. Mr. Rakofsky believes he has been harmed by people who came to conclusions about him without benefit of having all the necessary information. I too, did not have the full benefit of the entire trial transcript before quoting the Washington Post’s article.
Mr. Rakofsky seeks to have his day in court in this matter against one or more of the defendants. An impartial judge will determine if he has made his case in accord with the facts and the law. The defendants, likewise, will defend their words. In the end, the blawgosphere will move on to another target of its daily discussion. Mr. Rakofsky will begin the task of rebuilding his practice and reputation. Only time will tell if he will succeed at either.
