U.S. Supreme Court to decide: Were Tampa police clear about suspect's Miranda rights?

Nation follows Tampa case

By John Frank, Times/Herald Tallahassee Bureau

Published Sunday, December 6, 2009

Inside a small interview room at the Tampa Police Department in August 2004, an officer read Kevin Dewayne Powell his rights.

Among them: "You have the right to talk to a lawyer before answering any of our questions. … You have the right to use any of these rights at any time you want during this interview."

It's a portion of the ubiquitous Miranda warning, a fundamental element of the criminal justice system and one now ingrained in the American psyche thanks to television cop dramas.

But it's a little more complicated than what is shown on TV. The Supreme Court, which required that suspects be made aware of their rights through its Miranda ruling in 1966, has resisted establishing a template for the warning. So different jurisdictions have various, though similar, Miranda warnings.

"On the surface it seems like a simple rule, but it has spawned a lot of litigation over the meaning of the words," said Richard Leo, a law professor and author on the issue.

Powell's case is no different. The U.S. Supreme Court will hear oral arguments today about whether the Tampa Police Department adequately advised Powell of his right to an attorney.

Law enforcement agencies nationwide are expected to closely watch the hearing and subsequent decision, which could affect an untold number of cases.

Police arrested Powell on a charge of possession of a firearm by a convicted felon when they saw him leaving a room where they found a gun hidden under a bed. Powell signed a form acknowledging his rights and confessed to owning the gun.

At trial, he reversed himself, explaining that the police officers threatened to arrest his girlfriend and take away her children if he didn't take responsibility. A jury convicted him and the judge sentenced him to 10 years in prison.

The state's highest court, in its September 2008 ruling, said authorities needed to expressly convey the right to have an attorney present during questioning. The Tampa police's warning "suggests to a reasonable person in the suspect's shoes that he or she can only consult with an attorney before questioning," the opinion stated.

Florida Attorney General Bill McCollum asked the U.S. Supreme Court to intervene, calling clarification of the issue "crucial."

"The Florida Supreme Court … is demanding more from law enforcement than (the U.S. Supreme Court) ever envisioned or deemed necessary in Miranda," the state's argument reads, citing the landmark decision.

Tampa police no longer use the exact warning in question. But a handful of cases in Florida, including the death penalty case of Thomas Rigterink of Winter Haven, are pending a clarification of the Miranda standard.

McCollum's chief of staff, Joe Jacquot, 39, will argue the state's case in Washington. He is asking the court to determine that the spirit of the warning is more important than the actual language.

"The goal of Miranda is to ensure voluntary confessions," said Jacquot (pronounced Jay-co). "I would imagine that in law enforcement agencies across the nation every day there is a missed word or inconsistent translation … those confessions need to be protected."

The case is Jacquot's first before the high court, but he will get support from the U.S. Solicitor General's Office, whose interest in the case suggests its importance for the law enforcement community.

Attorneys in Florida and criminal law experts are looking to the Supreme Court to distill the necessary wording.

"There's not much clarity here," said Wayne Logan, a law professor at Florida State University. "What we need here is something more structural to get rid of the word parsing."

The view is echoed by Leo, the professor at the University of San Francisco and an expert on Miranda law. He conducted a study that found 89 out of 90 law enforcement agencies in Florida included the words "during questioning" in their warnings.

He filed a brief in the case supporting Powell, that argued if the state wins the case, it would create incentives for law enforcement to experiment with the Miranda warnings to generate more confessions.

"The Supreme Court has completely emasculated the law in the past and created a number of loopholes for law enforcement."

John Frank can be reached at jfrank@sptimes.com or (850) 224-7263.

Enoch Hall's Lawyers To Argue Against Death Penalty

Hall Convicted Of Killing Corrections Officer In 2008

POSTED: 11:26 am EST December 7, 2009
UPDATED: 11:33 am EST December 7, 2009

DAYTONA BEACH, Fla. -- Lawyers for the inmate who killed a correctional officer will argue against the death penalty today.

A jury recommended that sentence for Enoch Hall after he was found guilty of murdering corrections officer Donna Fitzgerald last year at Tomoka State Prison.
On Monday his defense team will tell the judge why Hall should not be put to death.

Florida to take up texting-while-driving bill again

By Tom Baxter
Southern Political Report
December 7, 2009 —

Over the past two year, Florida legislators have filed bills that would ban texting while driving, but none have made it over the finish line. The next regular session could be different, however.

With a Virginia Tech University study indicating the practice dramatically increases the risk of accidents, over a dozen bills cracking down on the practice has been filed, and Gov. Charlie Crist is in favor of a ban.

Meanwhile, a new law went into effect last week in North Carolina which could land texters a $100 fine, court costs and insurance points if they're caught driving while punching away at a cell phone. The state highway patrol says it has no plans for an organized crackdown, however.

-- Is the air slowly leaking out of the effort to impeach South Carolina Gov. Mark Sanford? Last week, after a state House panel said it wouldn't consider 28 of the 37 charges brought against Sanford by the State Ethics Commission, a Rasmussen poll was released which shows the percentage of South Carolinians who think he should be removed from office has dropped from 40 percent to 36 percent.

-- The recession has been good news for Virginia offenders who might face the death penalty. With a $3.5 billion budget fall facing the state, prosecutors have been more reluctant to take on the costly process of seeking the penalty in capital crimes. The head of the Richmond area capital defenders office has even proposed a moratorium on the penalty until the state resolves its budget problems.

-- Alabama is changing the company which administers its $380 million deferred compensation retirement plan for state employees, citing concerns about the relationship of the Alabama State Employees Association with the firm which has managed the plan for 30 years.

Follow Tom Baxter on Twitter.

Justices face facts

In blocking execution, Supreme Court acknowledges the truth of combat stress

December 07, 2009, 6:48 AM /
In a remarkable and relevant move by the U. S. Supreme Court, the death sentence for a decorated Korean War veteran has been unanimously overturned, suggesting a strong recognition that post-traumatic stress disorder has afflicted veterans of wars past and present.

This is an important topic, as soldiers continue to return from Afghanistan and Iraq, where many have been traumatized beyond our civilian imaginations. And, as was the case with Korean War veteran George Porter Jr., there are lingering wounds that never healed.

This page opposes the death penalty in any case. While the punishment may fit some crimes, it cannot be applied fairly or with any assurance that innocent people are not put to death.

But given that capital punishment is carried out, even enthusiastically, in many states, juries must not only be allowed, but required, to consider relevant evidence that may undermine the case for execution. The Supreme Court last week ruled that post traumatic stress disorder constitutes such evidence. It found that the Florida man’s “combat service unfortunately left him a traumatized, changed man,” as it stated in Porter v. McCollum.

Porter was convicted in the 1986 shooting deaths of his ex-girlfriend and her then-boyfriend in Florida during a drunken rage. At the time of sentencing, neither his lawyer nor the jury knew of his military service more than three decades earlier.

Both the Florida Supreme Court and the 11th U. S. Circuit Court of Appeals in Atlanta had upheld Porter’s death sentence, despite new information about his military record. As the high court said, those decisions were mistaken.

Such detailed information should be probed by defense attorneys, and the Supreme Court’s decision has put them on notice. “Our nation has a long tradition of according to leniency to veterans in recognition of their service, especially for those who fought on the front lines as Porter did,” according to the opinion.

The relevance of Porter’s extensive combat experience not only had to do with the fact that he served honorably “under extreme hardship and gruesome conditions,” the Supreme Court stated, but that the jury might find mitigating “the intense stress and mental and emotional toll that combat took on Porter.”

What the court did not say is that PTSD automatically shields convicts from the death penalty. All it does is require jurors to know about it before reaching one of the most critical decisions most humans will ever make.

It is significant that the court determined Porter would have been diagnosed as suffering from PTSD, by today’s standards, and that it recited testimony from Veterans Affairs Secretary Eric K. Shinseki, who reported that 23 percent of soldiers who have served in Iraq and Afghanistan and sought treatment through the VA had been preliminarily diagnosed with PTSD.

The court sent the case back to the 11th Circuit Court, which would presumably order a new sentencing proceeding but the court’s order did not say what the justices expected. Perhaps what can be expected is improved recognition and consideration for veterans who have fought for this country and returned damaged from the experience, whether it is obvious surface injuries or those that require further probing.

Damas begins long legal road to murder trial

By DENES HUSTY III
dhusty@news-press.com

The first full fledged hearing for accused family killer Mesac Damas Friday signaled the start of a long legal process as prosecutors and defense attorneys prepare for trial.

Although a preliminary date of March 19 was scheduled for Damas, 33, the trial may take place long afterward because of complexities in the case. Those include intent by prosecutors to seek the death penalty, Damas’ confessions to authorities and the media, and questions about his mental state.

Damas, a former restaurant cook, is charged with six counts of first-degree murder in the slaying of his wife, Guerline Dieu Damas, 32, and their five children. The charges accuse Damas of slitting the throats of all six victims the night of Sept. 17, leaving their North Naples townhouse awash in blood.

Damas, wearing a bright-orange jail uniform, handcuffs and shackles, sat quietly during the hearing, except for saying “yes” in response to a question from Collier Circuit Judge Frank Baker. Damas also turned when a friend or relative said, “Mesac,” to get his attention.

In preparing for his trial, defense attorneys first have to wade through 390 pages of documents and arrange depositions for as many as 80 witnesses who prosecutors say may testify.

State Attorney Steve Russell told Baker he intends to seek the death penalty, which sets up a list of legal requirements and procedures.

Baker ruled Friday he and Deputy Public Defender Michael Orlando are qualified to handle a death penalty case. Baker said he complies with all judicial rules on being qualified to preside.

Orlando said only one of his clients received the death penalty and the conviction and sentence were overturned by the Florida Supreme Court. Russell, chief prosecutor, has handled death penalty cases.

“I wish they wouldn’t have” filed the notice to seek the death penalty, Orlando said. “I will prepare for that aspect of the case.”

Prosecutors weigh aggravating and mitigating circumstances when deciding to seek the death penalty. In this case, a panel of prosecutors at the state attorney’s office recommended Russell seek the death penalty.

Those include whether the killings were “especially heinous, atrocious and cruel” and whether the killings were committed in “a cold and calculated and premeditated manner,” said Lee Hollander, a defense attorney and former prosecutor and police officer.

Mitigating circumstances defense attorneys might consider are that the defendant was “under the influence of extreme mental or emotional disturbance,” Hollander said.

Another factor might be the defendant’s ability to comprehend “the criminality of his or her conduct ... was substantially impaired,” Hollander said.

Orlando also said complicating matters are Damas’ confessions to an FBI agent and reporters.

Damas has remained on suicide watch in the Collier County Jail since he was returned from Haiti, where he fled after the killings.

Orlando said he worries about his client’s mental state and Baker has appointed a clinical psychologist to evaluate Damas.

If Baker decides Damas is not competent for trial, he would be sent to a state hospital until he is deemed to be competent, Hollander said.

Prosecutors Must be Held Accountable for Misconduct

November 4, 2009
By John F. Terzano

Charged with dual roles as advocates and ministers of justice, prosecutors are the most powerful actors in our criminal justice system. They have sole responsibility for decisions regarding what charges to bring against an individual, what sentence to seek, what plea bargain to offer, and what evidence to present to a jury during trial. Clearly, these decisions have a lasting impact on all those under the purview of the justice system. However, despite the great power of prosecutors, few are held accountable for violations of their ethical obligations.

Today, the Supreme Court will hear oral arguments in Pottawattamie County v. McGhee, which is a wrongful conviction case about prosecutorial immunity. Specifically, the Court will decide whether the prosecutors in a 1978 murder trial may be sued as individuals for the wrongful conviction of Curtis McGhee Jr. and Terry Harrington. McGhee and Harrington allege that the prosecutors violated their rights by coercing false testimony during the investigation and using that testimony at trial. The attorneys representing the prosecutors in question argue that while prosecutors are immune from lawsuits when acting within the scope of their job, state bar and disciplinary agencies provide sufficient punitive mechanisms to punish prosecutors for misconduct. It has been our experience that state bars and disciplinary agencies fall woefully short of holding prosecutors accountable for their misconduct.

No matter the outcome of this particular case, it is yet another example of why it is so important for states to enact reforms to ensure that prosecutors who abuse their powers are held accountable for their actions. The Justice Project’s policy review, Improving Prosecutorial Accountability outlines suggested reforms such as the establishment of prosecutorial review boards to sanction prosecutors who abuse their power within the criminal justice system. Without the threat of meaningful professional discipline, prosecutors cannot be held accountable for their actions and are likely to continue to abuse their power to secure convictions, which threatens our public safety and the integrity of our criminal justice system.

Implementation of disciplinary measures that create a culture of accountability will result in a more fair and accurate justice system. Such measures will also encourage prosecutors to better fulfill their multiple and critical roles of convicting the guilty, protecting the innocent and guarding the rights of the accused. Until prosecutors face the real threat of discipline, such as fines, suspension, or even disbarment, it is likely that the egregious acts of prosecutorial misconduct that threaten our criminal justice system will only continue.

Mesac Damas appears in court, doesn't speak about death penalty

By RYAN MILLS

Originally published 09:03 a.m., December 4, 2009
Updated 09:07 a.m., December 4, 2009

Naples — Mesac Damas, who is accused of killing his family in North Naples, appeared in court today.

It was the first appearance of Damas since he was apprehended in Haiti and brought back to the Collier County jail back in September.

Damas’ only communication came when Judge Frank Baker asked if he understood the meaning of the procedure.

POSTED EARLIER

Accused of cutting the throats of his wife and five young children in September, 33-year-old Mesac Damas could pay the ultimate price — death — if convicted of the killings.

The State Attorney’s Office announced Thursday that prosecutors will seek the death penalty for Damas, who has confessed to the killings and previously expressed to a Daily News reporter his desire to die for the crimes. The notice of intent to seek the death penalty was filed in Collier County court on Thursday morning.

If sentenced to death, Damas would be only the second Florida inmate on death row in a Collier County case.

Damas remains on suicide watch in the Collier County jail, and has not been allowed any visitors other than his attorney since his September arrest, the Collier County Sheriff’s Office reported.

Collier County Deputy Public Defender Mike Orlando, who represents Damas, filed a not-guilty plea in September and said at the time that he had concerns about his client’s mental state. When reached for comment Thursday, Orlando had little to say about the state’s decision to pursue the death penalty.

“I would have preferred that they had not filed that, but that’s what they chose to do,” Orlando said. “I understand that and will prepare accordingly.”

Detectives say that sometime between Sept. 17 and 18, Damas left work, returned to his North Naples townhouse and cut the throats of his wife, Guerline Dieu Damas, 32, and their five children. He then fled to his native Haiti, where he was later arrested and returned to the U.S.

Family members on both sides were tight-lipped when asked Thursday about the possibility of Damas receiving the death penalty.

“I don’t want to talk about this,” Damas’ father, Jean Damas Sr., said before closing the door at his Naples Manor home.

Mackindy Dieu, 24, Guerline’s brother who is listed as a witness in the case, said he is not allowed to discuss it. Guerline’s mother, Thelicia Medor, also declined comment.

However, earlier in the day, Medor, who does not speak English, had her 12-year-old granddaughter, Sabrina Obsaint, return a call to the Daily News. She said the family is not sold on the death penalty.

“We wanted to see him live and suffer the consequences in jail,” she said.

The decision to file for the death penalty means that Damas will receive a second attorney for his defense and that he’ll undergo a penalty phase if convicted. During the penalty phase, the same jury that convicted him would decide whether to recommend Damas receive life in prison or the death penalty. They would weigh aggravating factors with mitigating factors offered by the defense.

Aggravating factors are defined in Florida law and include acts that are “heinous, atrocious and cruel;” acts that are “cold, calculated and premeditated;” acts in which a victim is under the age of 12; and those in which the offender is the parent of the victim.

Furthermore, under Florida law, each individual killing counts as a prior violent felony to the next.

David A. Brener, a Fort Myers criminal defense attorney, said all the aggravators listed above may apply to Damas. He said one mitigating factor stands above all others:

“Clearly this gentlemen is ill,” he said.

And though insanity is a notoriously difficult standard to meet, mental illness can play a major role in the penalty phase, Brener explained.

“In other words the jury can find him legally sane but mentally ill and therefore not deserving of the death penalty,” he said.

A status check is slated for Damas in court this morning, though Orlando said he doesn’t “anticipate Mr. Damas will be there.”

According to the Florida Department of Corrections, there are 387 inmates on death row in Florida.

If sentenced to death, Damas would join Brandy Bain Jennings as the only inmates with Collier cases on death row. Jennings was sentenced to death for his role in a 1995 triple homicide and robbery at Collier County’s Cracker Barrel restaurant.

Thomas Lee Gudinas’ was sentenced to death in Collier County in 1995. However, his case was moved to Naples from Orlando due to extensive publicity. Gudinas killed a former homecoming queen near a downtown Orlando bar in 1994.

Raymond Koon was sentenced to death in Collier County in 1982 for gunning down a U.S. Secret Service informant. In 2005, at 73 years old, he died in prison of natural causes.

In 2003, John Ballard, a suspected serial killer and former Golden Gate resident, was sentenced to death for robbing and killing two neighbors. However, the Florida Supreme Court vacated Ballard’s two murder convictions and his death sentence in 2006. He was last believed to be living in California.