Recent Blog Posts in 2009

WASHINGTON – The Supreme Court on Monday seemed headed toward telling police they must explicitly advise criminal suspects that their lawyer can be present during any interrogation.

The arguments in front of the justices were the latest over how explicit the Miranda warning rights have to be, as justices debated whether the warnings police gave Kevin Dwayne Powell made clear to him that he could have a lawyer present while being interrogated by police.

Powell was convicted of illegally possessing a firearm after telling police he bought the weapon "off the street" for $150 for his protection. Before his confession, Powell signed a Miranda statement that included the statements "You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview."

The Florida Supreme Court overturned the conviction on grounds the Tampa police didn't adequately convey to Powell that he was allowed to have a lawyer with him during questioning.

Joseph W. Jacquot, Florida deputy attorney general, argued that the warning given Powell "expresses all the rights required under Miranda."

Justice Stephen Breyer clearly disagreed.

"Aren't you supposed to tell this person, that unlike a grand jury, you have a right to have the lawyer with you during interrogation?" Breyer said. "I mean, it isn't as if that was said in passing in Miranda. They wrote eight paragraphs about it. And I just wonder, where does it say in this warning, you have the right to have the lawyer with you during the interrogation?"

Different courts have came down on different sides on what exactly should be said, Justice Sonia Sotomayor said.

"We've got a split of circuit courts and state courts on whether this reasonably conveys or not. Shouldn't that be enough of an ambiguity for us to conclude it can't reasonably convey, if there's this many courts holding that it doesn't?" Justice Sonia Sotomayor said.

Powell's lawyer, Deborah K. Brueckheimer, said that the warning Powell was given from Tampa, Fla., police gave him the impression that "once questioning starts, that he has no right to consult with a lawyer anymore, and it certainly doesn't tell him that he has the right to the presence of an attorney with him in an interrogation room, where the coercion takes on a highly new meaning."

Justice Scalia called Brueckheimer's argument "angels dancing on the head of a pin."

"You are saying, 'Oh, if he had only known. Oh, if I knew that I could have an attorney present during the interview, well, that would have been a different kettle of fish and I would never have confessed,'" Scalia said. "I mean, doesn't that seem to you quite fantastic?"

Miranda rights have been litigated since they first came into being in 1966. The courts require police to tell suspects they have the right to remain silent and the right to have a lawyer represent them, even if they can't afford one. But those requirements likely will continue to be parsed by lawyers and judges.

For example, Justice Samuel Alito pointed out that most police start off Miranda rights by saying "You have the right to remain silent." But, Alito said, what happens if someone begins talking to the police and then decides that they want to be silent?

"Once you break your silence, there is nothing in there that says you have the right to resume your silence," Alito said.

"We could write that down. It could be the next case," Justice Anthony Kennedy said to laughter.

This is the third Miranda case the court has heard this year. The justices heard arguments earlier over whether officers can interrogate a suspect who said he understood his rights but didn't invoke them, and whether a request for a lawyer during interrogation can expire after a lengthy period of time.

Decisions in all three cases are expected next year.

The case argued Monday is Florida v. Powell, 08-1175.

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LONDON – A United Airlines pilot who was pulled from his trans-Atlantic flight to Chicago shortly before takeoff has been charged with having too much alcohol in his system, British police said Tuesday.

Scotland Yard said that 51-year-old Erwin Vermont Washington, of Lakewood, Colorado, was arrested after officers were called to United Airlines Flight 949, which was already full of passengers and due to leave London's Heathrow Airport just after noon on Monday.

BAA, Heathrow's operator, said the plane had been due to leave imminently. A BAA spokesman quoted by Britain's Press Association news agency added that the pilot had been reported to authorities by another member of United's staff. BAA did not immediately return a call from the AP seeking comment late Tuesday.

It was not immediately clear how much alcohol Washington was accused of having consumed. Under British law, pilots are forbidden from having any more than 20 micrograms of alcohol for each 100 milliliters of blood in their system, or .02 percent. For most average-sized men, that is the equivalent of having just had about half a glass of regular strength beer.

Scotland Yard said that Washington, who has been released on bail, would have to appear at a court in northwest London on Nov. 20. If convicted, he faces up to two years in prison, a fine, or both.

United Airlines spokeswoman Megan McCarthy said Washington, who she did not identify by name, has been removed from service pending an investigation. She said her airline had strict rules on alcohol "and we have no tolerance for violation of this well-established policy."

She declined to say how long Washington had worked for the airline.

McCarthy said that the flight was canceled and that the plane's 124 passengers were put on other flights.

Monday's incident bears a strong resemblance to the arrest in May at Heathrow of an American Airlines pilot — also scheduled to fly a plane to Chicago — after he failed a breath test. Airport security staff had alerted airport police about the pilot.

In January, Southwest Airlines put a pilot on leave after passengers at a security checkpoint in Columbus, Ohio, told authorities that he smelled of alcohol. The pilot ran into a restroom and changed out of his uniform jacket and called in sick.

Union leaders say pilots are under increased scrutiny by security agents and passengers because of high-profile cases involving drunk pilots.

DULUTH, Minn. – A Minnesota man has pleaded guilty to driving his motorized La-Z-Boy chair while drunk. A criminal complaint says 62-year-old Dennis LeRoy Anderson told police he left a bar in the northern Minnesota town of Proctor on his chair after drinking eight or nine beers.

Prosecutors say Anderson's blood alcohol content was 0.29, more than three times the legal limit, when he crashed into a parked vehicle in August 2008. He was not seriously injured.

Police said the chair was powered by a converted lawnmower and had a stereo and cup holders.

Sixth Judicial District Judge Heather Sweetland stayed 180 days of jail time Monday and ordered two years of probation for Anderson. His attorney, David Keegan, did not immediately return a call for comment.

LAWRENCEBURG, Ky. — A judge has set a February trial date in the drunken-driving case against former Kentucky basketball coach Billy Gillispie.

Gillispie's attorney was in Anderson County District Court on Monday to request a delay because Gillispie hadn't yet decided whether to agree to a plea bargain.

Judge Linda Armstrong scheduled a final preliminary hearing for Nov. 2 and set a trial date for Feb. 10.

Gillispie's attorney, William Patrick, declined afterward to say what sparked the request for a delay. County Attorney Bobbi Jo Lewis declined to comment.

Gillispie was arrested Aug. 27 and charged with DUI after refusing sobriety tests during a traffic stop in which officers said they smelled alcohol on his breath.

Gillispie was fired this year after a rocky two-year tenure in which the Wildcats went 40-27.

"First off, I want to apologize to the A's and my family," said Mortensen, who spent the night in Santa Clara County jail. "Calling my dad this morning was the hardest thing I've ever had to do. I'm deeply embarrassed for what I've done and my poor judgment. I can honestly say it will never happen again. I'm very ashamed and embarrassed. ... I'm really sorry for everything I caused."

Mortensen was arrested at about 3 a.m. by a Santa Clara County Sheriff's Department deputy who was checking a car stopped on the side of Highway 17 southbound in Los Gatos, according to Sgt. Rick Sung, a spokesman for the Santa Clara County Sheriff's Department.

The A's put out a release during Sunday's game against the Angels stating that the team was aware of the situation but will have no comment until further details are available. Mortensen, 24, was acquired from St. Louis in the Matt Holliday trade in July, and he went 2-4 with a 7.81 ERA in six starts.

After starter Esteban Loaiza's 2006 arrest for drunk driving, the A's stopped providing alcohol in both clubhouses at the Coliseum and on the team plane, citing liability issues and concern for players' welfare.

In April, Angels starter Nick Adenhart was killed by an alleged drunk driver after pitching against the A's. Mortensen's former club, the Cardinals, lost reliever Josh Hancock in 2007 when he was killed while driving under the influence.

BY JOSE PAGLIERY of the Miami Herald

'Pulp Fiction' writer sentenced in fatal DUI crash

VENTURA, Calif. — An Oscar-winning screenwriter of "Pulp Fiction" has been sentenced to a year in jail for causing a fatal traffic crash in Southern California.

Roger Avary was sentenced Tuesday in a Ventura court. He also received five years of probation.

Avary pleaded guilty in August to gross vehicular manslaughter and drunken driving for the 2008 crash that killed a passenger in Avary's Mercedes in Ventura County. Authorities say Avary's car was traveling at more than 100 mph when it crashed into a telephone pole.

Avary's wife was ejected from the vehicle and was treated for non-life-threatening injuries.

Avary and Quentin Tarantino share the 1995 Academy Award for writing "Pulp Fiction." He also co-wrote the screenplay for the movie "Beowulf."

With guns drawn and flashlights cutting through darkened rooms, Polk County undercover drug investigators stormed the home of convicted drug dealer Michael Difalco near Lakeland in March.

As investigators searched the home for drugs, some drug task force members found other ways to occupy their time. Within 20 minutes of entering Difalco's house, some of the investigators found a Wii video bowling game and began bowling frame after frame.

While some detectives hauled out evidence such as flat screen televisions and shotguns, others threw strikes, gutter balls and worked on picking up spares.

A Polk County sheriff's detective cataloging evidence repeatedly put down her work and picked up a Wii remote to bowl. When she hit two strikes in a row, she raised her arms above her head, jumping and kicking.

While a female detective lifted a nearby couch looking for evidence, another sheriff's detective focused on pin action.

But detectives with the Polk County Sheriff's Office, the Auburndale, Lakeland and Winter Haven police departments did not know that a wireless security camera connected to a computer inside Difalco's home was recording their activity.

The recording obtained by News Channel 8 showed several members of the county's High Intensity Drug Trafficking Area (HIDTA) task force entering the house shortly after 8 a.m. According to the search warrant, their mission was to search for drugs, stolen property and the fruits of any illegal drug activity.

Now there are questions on how the impromptu bowling tournament might affect the case against Difalco.

Polk County Sheriff Grady Judd denies it will have any effect.

"That absolutely is not true; that doesn't invalidate the search at all," Judd said. "Now the defendant would like for it to invalidate the search, but unfortunately for him, it won't."

Judd, who watched the video during an interview last week, called the situation an embarrassment.

"I'm not pleased that they played that Wii bowling game," Judd said. The sheriff's office oversees the drug task force. Judd said he initiated an internal administrative investigation of the incident.

"That is not appropriate conduct at a search warrant," he said. "But I am less pleased with the supervision that didn't walk in and say, turn that off. That's what supervision should have done."

Task force members played the video game at various times during the day, for a total of a little over an hour of playing time. The competition proved to be quite competitive at times. A task force supervisor from the Lakeland Police Department, gun at his side, pumped his fist after picking up a strike on the first ball he threw. The video showed he continued bowling frame after frame, competing with another undercover detective.

"Obviously, this is not the kind of behavior we condone," Lakeland Police Chief Roger Boatner said. "There was a lot of down time, but that does not excuse the fact that we should act as the consummate professionals."

"Certainly this was a case of bad judgment," Auburndale Police Chief Nolan McLeod said. "We will handle it appropriately."

Winter Haven police Sgt. Brad Coleman said Chief E.C. Waters had not viewed the video. "If there is any indication that someone did something inappropriately, we will do something about it," Coleman said.

Court records show detectives placed Difalco's home under surveillance as far back as December 2008.

"We knew he had weapons," Judd said. "He's a bad guy."

His history includes an extensive arrest record dating back to 1995. Difalco, 43, served three years in state prison from 2002 to 2005 for trafficking drugs, owning and operating a chop shop, and grand theft.

In what Judd called "brilliant police work," the task force placed Difalco under surveillance and took him into custody, away from his home and weapons, during the early morning hours of March 6, in the parking lot of a Circle K convenience store on Highway 98.

Documents filed with the court say, in the March raid, detectives removed methamphetamine, marijuana, drug paraphernalia, weapons and more than $30,000 in stolen property.

The 11 charges against Difalco include trafficking methamphetamine, possession of a firearm by a convicted felon and operating a chop shop.

According to sheriff's office records, 13 detectives and three sergeants spent nine hours searching Difalco's property, for drugs, stolen property and signs of any illegal drug activity.

The raid cost taxpayers more than $4,000.

Judd, Boatner and McLeod agree the bowling was inappropriate. But they challenge the notion that taxpayer dollars were wasted.

"It was an expansive scene, a lot of searching to be done, a lot of waiting," Boatner said.

"The nature of a search warrant is hurry up and wait," Judd said. "Am I trying to defend the fact that they were bowling, not at all. That was inappropriate."

Not just inappropriate, but Tampa defense attorney Rick Escobar would argue the moment detectives turned on that video game and effectively seized it, they turned the search warrant into an illegal search.

"I've never seen anything like this," Escobar said after he viewed some of the video. Escobar does not represent Difalco and has no connection to the case.

"All the citizens are thinking, 'Wait a minute, we are paying these people to go out and protect us and here they are playing bowling on our time,' " he said.

"The real question here is have they seized property that wasn't described in the search warrant?" Escobar asked. "Clearly if they're using it, they've seized it and for totally improper purposes, because it's for entertainment. Investigations are not for entertainment."

Difalco's attorney declined comment.

Chip Tulberry, a spokesperson for the Polk County State Attorney, declined to comment on the video, or the validity of the search warrant.

"That's a discussion that will occur in court," he said.

Alu Strikes Again; Threatens To Overturn Untold Number of Cases

BY BUDDY NEVINS

“Hurricane” Sheila Alu is at it again and this time her work threatens to throw the courthouse for a real loop.Sheila Alu

Assistant State Attorney Alu has delivered to the Public Defenders Office a list of 28 police under investigation by her bosses at the State Attorney’s Office  or internal affairs officers of their own departments. 

The list could throw into question an untold number of criminal cases, past and present.  It could overturn trials.

“This notice is a notice that the State Attorney has evidence that indicates because of conduct of the police, a client could be innocent,” Public Defender Howard Finkelstein says.

“This could be very, very big. It raises a number of questions for our clients,” Finkelstein says.  “We just don’t know the ramifications yet.”

The Public Defender’s Office has assigned a team of lawyers to research Alu’s documents. They are scrambling to see whether the cops are involved in cases against their clients.

 Finkelstein says in his 32 years as a lawyer, he has never seen a prosecutor reveal so many cops under investigation at once.

“I’ve seen maybe two or three (notices about two or three individual cops) in 32 years,” says Finkelstein.

Finkelstein says the document has no explanation of what the officers are being investigated for or even information about when the investigation took place.

He also says he doesn’t know what prompted Alu to deliver the notice to one of his assistant public defenders. 

“Maybe she just wants to do what’s right,” Finkelstein says. “What I am concerned about is that why haven’t we gotten these notices for the past 32 years?”

Some in the courthouse believe Alu is seeking to embarrass her boss, State Attorney Mike Satz.  There is talk in political circles she could be a future candidate against Satz.

Alu has been at the center of repeated controversies in the courthouse in less than two years as a prosecutor.  I have given her the nickname “Hurricane” Sheila because of the hubbub that surround her.

She made accusations against a judge that resulted in an investigation of the judge by the Judicial Qualifications Committee and the Florida Bar and produced a year’s worth of headlines.

Just last week, she was involved in an another controversy when it was learned she was  fund raising for a judge she appeared before as a prosecutor.

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