You may be familiar with a recent U.S. Supreme Court ruling holding that DNA may be collected from defendants arrested – though not yet convicted – of serious criminal offenses, mainly felonies.
However, what you may not be aware of is that many local police agencies were already doing this – and much more – in a largely unregulated process that is governed by departments’ own rules and sometimes even involves the collection and storage of DNA by unsuspecting people who have never been arrested for a crime.
Our Fort Lauderdale criminal defense attorneys aren’t clear on exactly how many cases are prosecuted using these clandestine samples, but we see ample opportunity for a strong legal challenge in the future – in spite of the recent ruling in Maryland v. King.
Keep in mind that there are both federal and state crime labs that maintain their own DNA databases of potential suspects. Local labs tend to fly under the radar, with DNA collected sometimes with the donor’s knowledge and sometimes without it. In some cases, the DNA belongs to individuals who have been arrested or convicted in relation to serious offenses. In some cases, the DNA belongs to crime victims who have no idea their DNA has been saved for future searches.
To give you an idea of the scope of this issue, we know that New York City has its own database of some 11,000 criminal suspects. Orange County, California has a amassed about 90,000 profiles – most of those from defendants who committed misdemeanor crimes and agreed to submit to a DNA sample in exchange for lesser charges or for having those charges dropped.
In Central Florida, we don’t have an exact count, but we do know that law enforcement agencies have pooled their resources to create a regional database. What that means is that these agencies may not be relying upon only state and federal databases, which are run according to stricter standards.
Police chiefs give various reasons for compiling their own databases. Some of them gripe that it takes too long for the state to test evidence and submit DNA profiles into the larger database. Other police leaders say they don’t want to have to wait until someone is arrested or convicted before gathering their DNA so they can nab them on lower-level offenses. Police say the samples kept in state and local databases belong to people already going to prison – not those with whom they are dealing day in and day out.
The concern is that unregulated databases may violate privacy and Fourth Amendment rights, even if they are used to successfully solve a crime. For someone accused of a crime on the basis of such evidence, an argument might be made on the basis of the fruit of the poisonous tree doctrine. That is, if police had no right to collect that sample in the first place, any evidence that came about subsequently would become inadmissible in court.
Last summer, officials in Broward and Palm Beach Counties launched a sting to target unlicensed contractors in South Florida.
The undercover operation involved dozens of agencies luring dozens of individuals with a history of unlicensed contract work to a home in Cooper City. Much like a prostitution sting, the individuals would agree to conduct certain work that by law requires a state license. In some cases, the individuals admitted to the would-be buyers that they had no license.
Our West Palm Beach criminal defense lawyers can’t say for sure whether authorities are planning any similar stings, but we do know that there have been at least a dozen of these operations over the last three years, and we inevitably see a spike in unlicensed contractor arrests during hurricane season.
Per Florida Statute 489.127, a conviction for a first-time unlicensed contracting offense is a misdemeanor, punishable by up to 1 year in jail and a $1,000 fine. However, a second or subsequent offense for unlicensed contracting is a third-degree felony, punishable by up to five years in prison.
Additionally, a person who commits such a violation during a time frame in which the governor has declared by executive order a state of emergency will face a third-degree felony charge, regardless of whether they have been convicted of any similar prior offenses.
Some individuals arrested for unlicensed contracting may not even realize they are breaking the law. In some cases, they may be simply trying to make a few bucks doing odd jobs in the neighborhood.
You can’t skirt the law by requesting compensation in the form of something other than money. The state defines a contractor as any person who demolishes, subtracts from, improves or builds any building or structure for compensation. That compensation could be cash, but it could also be in the form of other goods and services.
According to the Florida Department of Business & Professional Regulation, here are the jobs for which you need to be licensed if you expect to receive compensation:
–Sunroom or garage construction;
–Hot-water heater replacement;
–Air conditioning installation;
–Central air and heat duct cleaning;
–Repair or replacement of swimming pool pumps;
–Construction of a barn, detached garage or metal building;
–Home remodel that requires replacement or alteration of load-bearing walls;
–Drywall installation or replacement if that work will include work on the load-bearing part of the wall, electrical, air-conditioning or plumbing work.
However, there are jobs for which you DON’T need a contracting license. According to state law, those include:
–Installation of tile walkways, pavers or driveway;
–Installation of water filter onto a faucet;
–Insertion of an air conditioning window unit;
–Installation of awnings that are not a fixed part of the structure;
–Swimming pool cleaning or installation of an above-ground pool;
–Installation of a prefabricated tool shed that is smaller than 250 square feet (or up to 400 square feet with county approval);
–Installation of cabinets, tile or wood flooring and insulation.
The Florida Department of Children and Families is cracking down on welfare fraud, saying theft of public-assistance dollars costs the state an estimated $1.35 billion annually.
The agency has just received grant funding from the state Department of Agriculture to implement a first-of-its-kind system to track and halt fraud in much the same way that banks and credit card companies already do.
Our Fort Lauderdale criminal defense lawyers know that these measures are primarily aimed at prevention, but they could undoubtedly be used as evidence in criminal prosecutions.
Florida Statute 414.39 governs welfare fraud in the state. It holds that any person who fails, either by false statement or by impersonation or misrepresentation or any other fraudulent means, to disclose material facts regarding the determination of a person’s qualification to receive public assistance from state or federal programs or if the person falsifies information to receive larger benefits than what they might rightly collect, is guilty of a crime.
The severity of that crime, and therefore the punishment, depends on which fund was stolen from and how much was wrongfully taken.
For example, if a person wrongfully collects food vouchers from the state with an aggregate value of $200 or less in any one-year period, it’s a first-degree misdemeanor, punishable by up to one year in jail. However, if the value of those food vouchers was more than $200 in a one-year time frame, it’s bumped up to a third-degree felony, punishable by up to five years in prison.
The fraud tracking program that Florida is gearing up to launch is going to cost the state about $1 million to $4 million annually, but it’s expected to save about $60 million just in that first year. In addition to funding from the Department of Agriculture, the state legislature pitched in about $5 million for the program, which should subsequently be able to fund itself.
A recent trial run over the course of five weeks involved establishing new hurdles to collection of food vouchers provided by the state. An online screening tool is used to pepper the recipient with a series of questions that only he or she should know. This particular device is an effort to ward off identity thieves. Of nearly 140,000 applications in the first several weeks, the Orlando office red-flagged some $210,000 in fraud – which was triple what authorities had expected to uncover.
Nowhere else in the government sector is this being done. This marks a shift in approach to the issue. Traditionally, tackling the issue of identity theft and welfare fraud had involved a method of “pay-and-chase.” The state would pay out the funds, then recognize them as fraudulent and go after the alleged thieves.
This effort follows a number of higher-profile arrests for fraud in Florida. In one case, a mental health counselor in central Florida was accused of running a $3 million Medicaid fraud operation, using the money to purchase high-end cars, expensive vacations and nearly $200,000 in designer purses.
Then recently in Manatee County, some 100 people were arrested on allegations of food stamp fraud.
Right now in Florida, 9 out of 10 welfare recipients apply for their benefits online. This has allowed the state to reduce the huge lines at welfare offices, but it has given increasing rise to identity theft.
Three years ago, the state founded the Office of Public Assistance Benefits Integrity, which accepts and investigates complaints of public assistance fraud.
Public officials say that by far, Medicaid fraud is the most common problem in this realm, with individuals often hiding income in order to meet eligibility requirements. This is followed by food stamp fraud. In many cases, people will heist the identities of those who are imprisoned or deceased to collect benefits.
Last fall, Florida officials began using software to cross-reference information from financial institutions to determine whether recipients had access to money they weren’t disclosing to the government.
A man was recently arrested in Fort Lauderdale for two, first-degree felony counts of lewd or lascivious molestation of a victim under the age of 12.
Our Fort Lauderdale criminal defense lawyers have learned that those charges have since been dropped, after the 9-year-old accuser told a state prosecutor that she didn’t remember making the allegation.
Of course, these are very serious felony charges and as such, you can’t always count on a young accuser to come forward with a revelation admitting that they are lying or that they their words were skewed.
Children in these cases are under a great deal of pressure because in many cases, physical evidence may be lacking so the strongest piece of evidence the state has is the child’s testimony. The entire case may hinge upon it. That’s an enormous amount of pressure to stand up to as a young person, even when you know that the initial allegation has been spun out of control.
For this reason, many of those who falsely accuse or exaggerate don’t come forward with the full truth until many years later, if at all.
This is why it is critical to formulate a strong criminal defense early on in the process – at the first inclination you may have of an allegation, even if that is prior to an arrest.
Florida Statute 800.04 describes lewd or lascivious molestation as when a person intentionally touches in a lewd manner the private areas (clothing-covered or not) of a person who is under the age of 15 or forces or entices the youth to touch the older offender. If the suspect is over the age of 18 and the accuser is under the age of 12, the crime becomes a life felony.
As this case revealed, the involvement of young children can be especially troublesome when the consequences are so incredibly serious. In this situation, the girl reportedly told an investigator that the defendant had touched her “cookie jar,” which is reportedly a word used by the child to describe her genitalia. But a few weeks later, the charges were dropped when the girl told a prosecutor she didn’t remember saying that.
The prosecutor indicated that absent any physical evidence, it all came down to the testimony of the accuser, and the admission that she had no recollection of the allegation made the case virtually impossible to prosecute.
Many other defendants aren’t so lucky.
Another Fort Lauderdale man was recently arrested those exact same charges, only this time relating to a 10-year-old girl for whom he babysits. The child alleges the defendant has sexually abused her from the time she was 6 years-old.
It’s not clear at this point whether there is physical evidence in this case, but it does not appear as if the girl is backing down from her sworn statements.
Every case is going to be different, but there are a number of defense strategies that our attorneys can employ. Theoretically, it is the prosecutor’s job to prove you guilty. However, there is often so much emotion tied to these cases that even otherwise non-biased jurors and judges will view sex abuse defendants through an unfair lens of guilt. No one wants to believe that a child would lie about, exaggerate or misinterpret such a thing. But it does happen. That’s why are committed to showing the court why you should not be convicted of such serious charges.
The U.S. Supreme Court has expanded the rights of inmates who can prove actual innocence after a conviction. Essentially, they are allowed to break the 1-year habeas corpus deadline if they can convince a judge they should never have been convicted in the first place.
While this is certainly a positive for those who are wrongly convicted of serious crimes in Florida, our Fort Lauderdale felony defense lawyers know that the threshold these individuals have to meet is still very high. Ultimately, your best chance of avoiding a life behind bars is to take action BEFORE the trial to hire a criminal defense attorney with experience, skill and a history of proven results.
In the early stages of the criminal justice process, at least in theory, the onus is on prosecutors to prove you are guilty. For this reason, the odds are more stacked in favor of the defendant. While victim’s rights advocates have decried this set-up, it’s designed this way for a very specific reason: To avoid wrongful convictions.
In the appellate process, however, the odds are stacked against you. The onus is on the defendant to prove why he or she is innocent. That can be an uphill battle – even when new evidence comes to light that may not have been available at the time of the trial.
In the case of McQuiggin v. Perkins, that was exactly the kind of scenario that cropped up.
The defendant, Perkins, was convicted of first-degree murder following the death of a man with whom he had left a party. He was one of two men believed to have last seen the victim alive. The third man blamed Perkins, while Perkins blamed him. The jury ultimately believed the third man.
Then in 2002, affidavits of three witnesses surfaced that identified that third man as the killer. For reasons unknown, Perkins waited six years from the time those affidavits were discovered until the time he filed his habeas corpus appeal for his freedom and a new trial.
However, his request was initially denied on the basis of a 1996 law called the Antiterrorism and Effective Death Penalty Act. The title makes it sound as if it would be irrelevant to the case, but in fact, the law became key because it gives inmates exactly one year to file a federal habeas petition. The clock on that year begins either on the date which the judgement became final OR when the new evidence was discovered.
Perkins waited six years. We don’t know why. Prosecutors tried to argue that in doing so, Perkins had forfeited his right to even have that petition heard by a judge.
However, the U.S. Supreme Court decided against that in a 5-4 decision, holding that if one could prove “actual innocence,” the claim could proceed despite the failure to follow that one-year timeline. Failure to allow this, the court said, could result in miscarriages of justice.
But the standard of actual innocence is a high one. It means that the person has to convince a judge that had the evidence before the court today been available at the time of the trial, no reasonable jury would have moved to convict. That’s a steep hill to climb. Usually, we’d be talking about cases in which DNA evidence had cleared the defendant or a key witness recanted.
In fact, the threshold is so high it may be even unattainable for Perkins. Time will tell.
The bottom line is that you need to rely on a good criminal defense attorney who will get it right the first time.
Florida Criminal Lawyers