Informational

How You Can Use Exculpatory Evidence to Help Your Post-Conviction Appeal

August 15, 2022 | Michael B. Cohen, P.A.

Exculpatory evidence in its simplest form is any favorable evidence for a defendant in a criminal case that can be used to prove their innocence. In United States law per Brady v. Maryland, a defendant MUST be disclosed by prosecutors of ALL evidence they have before the defendant accepts a guilty or not guilty plea. This requirement falls under a constitutional right of due process for a defendant. Exculpatory evidence is significant because it guarantees a person will face criminal punishment only if they commit a crime. This might seem like common sense but prior to this requirement, innocent people were being charged with crimes simply because the prosecution opted out in sharing evidence that proved a defendant’s innocence. Understanding this right is crucial to your case and can be significant in a successful appeal if you were convicted.

In the State of Florida, under Fla.R.Crim. P. 3.220(b)(4), the right to exculpatory evidence is protected under A Notice of Discovery. This notice triggers a duty from the prosecution to provide your attorney and defense team all evidence they have collected including police reports, witness testimonies, and other documents. Attorneys in the state of Florida are required to take a course in understanding and upholding this procedure.

A violation of exculpatory evidence is more commonly referred to as a Brady violation (referring to Brady v. Maryland case). The 3 elements a defendant must show are that the evidence:

What is Post Conviction Relief?

August 15, 2022 | Michael B. Cohen, P.A.

The term post-conviction relief, commonly referred to as PCR, is a legal process in which a convicted individual can seek to vacate, set aside, or adjust their sentence. Compared to an appellate court, post-conviction relief is a broader analysis of all aspects of a case. This can include the legality of the sentence, counsel effectiveness, claims involving newly discovered evidence or the involuntariness of a plea, etc.

Federal Section 2255

With federal cases, 28 U.S.C. § 2255 can be used to request the U.S. District Court to vacate, correct, or set aside a sentencing. It is only available to those convicted and in custody (those in prison, probation, parole, or supervised release).

Why Giglio Evidence May Lead to a Successful Post-Conviction Appeal

July 14, 2022 | Michael B. Cohen, P.A.

Giglio evidence refers to any information or material that may be used to impeach the credibility, testimony, or character of a prosecutor’s witness in a criminal case. In Giglio vs United States, John Giglio was convicted of using forged money orders with the assistance of Robert Taliento. The government, however, made a deal with Taliento to testify for them against Giglio in exchange for his immunity against prosecution. The jury and defense were unaware of this deal and ultimately Giglio was convicted. This deal was discovered after Giglio’s conviction and his defense team sought to overturn the jury’s decision based on the concealment from the government making Taliento’s testimony unreliable. In 1972, the case had reached the Supreme Court where they ruled that the failure to inform the jury on any agreements the government makes with any witness is a violation of a defendant’s due process rights, and therefore warranted a new trial.

Giglio evidence as a defense

Giglio evidence or material is a powerful tool to be aware of and use to defend your case or lead a successful post conviction appeal. An officer involved in a defendant’s arrest, for example, can be barred from testifying through a Giglio letter if the officer lacks integrity and credibility like concealing evidence in the past or any other misconduct. Other examples that must be presented by the prosecutor are:

Can Social Media Cause Jury Bias?

July 14, 2022 | Michael B. Cohen, P.A.

The Heard v Depp trial sparked major news coverage and pop culture attention this year. The civil defamation case found Amber Heard guilty of all three claims against her while Depp was found guilty for one against him. After the verdict, Heard spoke out claiming the unfavorable depiction of her on social media played a part in skewing the jury’s decision. On July 1, 2022, Heard’s legal team filed a request with Judge Penny Azcarte to reject the jury’s verdict, dismiss the lawsuit, or order a retrial. It is unclear whether they will use social media influence as a defense. Nonetheless, a juror’s social media use and access can help make a case for an appeal on a conviction.

Remmer vs The United States

Criminal defendants have the right to due process. One imperative condition of due process is that a defendant must be granted a trial “by an impartial jury”. In the Supreme Court 1954 case of Remmer vs United States, they upheld that if any external information a juror or jury is exposed to related to the case results in bias for the jury, then it violates a defendant’s due process. In Remmer, a jury member was exposed to newspaper articles pertaining to their case. This called for a “Remmer hearing” where if a convicted party can prove a juror was improperly influenced or engaged in any misconduct, then a retrial can be granted. With the rise of social media, there is a boom in demand to use Remmer hearings towards any juror’s online engagement over a trial that might influence their decisions.

Unknowingly Using Counterfeit Money

May 15, 2022 | Michael B. Cohen, P.A.

Under federal and Florida laws, it is unlawful to possess counterfeit currency and to use it with the intent of defrauding a retailer, merchant or individual. The federal government and agencies like the Secret Service seize millions of dollars in fake currency each year. A recipient handling multiple and large transactions are usually trained to prove the validity of the currency they’re receiving. If it is suspected that the currency is indeed fake, they may call the police and you could be charged with a forgery crime. These charges carry severe and heavy fines with lengthy potential prison sentences. You will need an experienced criminal defense lawyer to provide you with the best legal defense to prove you had no knowledge that the currency was fake.

Florida Statute 831.15

Below is the Florida Statute explaining the illegality of counterfeiting money:

Cooperating With The Federal Government

March 6, 2022 | Michael B. Cohen, P.A.

When you are accused of a serious criminal charge, it is important to hire an experienced criminal defense attorney who will present all available legal options to you that can prevent a conviction or at the very least, can lessen your charge. When appropriate, a Cooperation Agreement is a legal defense strategy for felony charges that could prove to be beneficial in your federal case. This agreement usually requires one to plead guilty and to assist the government in some way in exchange for a lesser sentence.

The worst thing one can do is cooperate with the government without an attorney present. People let the anxiety get the best of them and begin giving authorities information before an attorney is able to negotiate the terms of a cooperation agreement. It is vital that the accused person has an experienced federal criminal defense attorney representing them and protecting their rights. The attorney will first evaluate whether the information the client has and the facts of the case would meet the threshold for a cooperation agreement and a significant sentence reduction.

It also does not matter how hard you try to gather evidence for authorities. If in the end you are not able to gather the necessary evidence, no matter how much effort and time you put into it, you will not get the cooperation credit. And since you already gave a guilty plea, you will be locked into it. Ultimately, while cooperation agreements make sense for some, it does not help reduce prison time for others. That is why it is important that you hire an experienced criminal defense attorney who is familiar with cooperation agreements.

Consequences of Having a Criminal Record

March 6, 2022 | Michael B. Cohen, P.A.

Besides the commonly known consequences of having a criminal record like serving time in jail or prison and paying heavy fines, having a criminal conviction can affect your life even if you do finish serving time or pay off the fines.

Even the most minor criminal charges can affect your personal and professional life.

Probably the most well-known consequence of having a criminal record is how it can negatively impact professional opportunities. Most employers run background checks and when they do yours, they will have a negative view of you and your capabilities. Although this is deemed unfair by many, employers may judge your morals and character especially if it was a serious offense. They may also wonder if you are likely to be a repeat offender. Another way you could be impacted by your criminal past is with child custody. If you are or ever do have a custody battle, the other party may bring up your record against you to deem you as an unfit parent. This is especially true if the charge was domestic abuse or other charges involving violence.

Committing a crime under extortion

February 14, 2022 | Michael B. Cohen, P.A.

The definition of extortion is obtaining money or property by threat or intimidation even though it may not be represented by a clear or imminent physical danger to the victim. It is basically acquiring money or property by threat of physical violence or embarrassment to the victim, a friend or family member of the victim; a threat of damage to the victim’s property or threatening to damage a person’s reputation through various methods.

In the case of blackmail, the alleged guilty party would have something that the victim wouldn’t want made public and the target makes payments to stop the intimidator from doing so.

So what happens if you commit a crime due to being extorted? The answer is that it depends. There is a defense of duress, which can lessen your involvement. Also, if you cooperated with authorities and testified for the prosecutor, there is a chance you will be charged with lesser crimes in the first place. Finally, a jury is going to be sympathetic to someone who was clearly blackmailed. That being said, the anticipated victim must believe that the threat is reasonably real and the threat that the intimidation against them must be true. Some of the elements to prove are:

What You Should Know About Drug Trafficking Charges in Florida

January 14, 2022 | Michael B. Cohen, P.A.

Federal and state law enforcement agencies are known to give out some of the harshest penalties when it comes to the sale and possession of controlled substances. One of the more serious charges is drug trafficking across state lines or national borders. Drug trafficking is defined as the intentional sale, purchase, manufacture, delivery, possession or transporting a specific amount of a controlled substance. Most movies and shows make people think that you need to be a mastermind traveling across national borders with large, obscene amounts of a controlled substance similar to the movie “Scarface” to be considered a drug trafficker. However, according to Florida Statutes Section 891.13, any person who sells or delivers controlled substances can face drug trafficking charges in the state of Florida.

The most commonly trafficked drugs in Florida are:

Cocaine

Are you allowed to change attorneys?

January 14, 2022 | Michael B. Cohen, P.A.

Although not what anyone wants, it happens. You hire a criminal defense attorney that checks off everything you’re looking for then after working together on the case, you realize you are not too happy with your choice anymore. So are you able to change criminal defense lawyers? The short answer is yes. However, there is a process for this.

You must file a motion with the court to substitute counsel and the details will vary from state to state. There are genuine reasons to change lawyers. For one, if your lawyer insists on you accepting a plea but you want to move forward with a trial, then that can be enough for you to want to switch lawyers. Most experienced attorneys will know better how a case will generally go, but ultimately you have a right in choosing what you think is best for you. However, not every disagreement with your defense attorney should be grounds for you to change.

In most cases, your motion will be approved, unless the court believes that you’re doing it to unnecessarily delay the proceedings against you. There is not a set limit to the number of times a person can change attorneys. The deciding factor, in most cases, is whether the judge overseeing the case will allow the current attorney to withdraw from the case. In some instances, if the case has been pending too long, the judge will simply set the case for trial, which can impede the defendant’s ability to change counsel and somewhat set an end-date for the case. The best way to hire an attorney is to interview a number of them and get a deeper understanding of the cases they’ve represented and how their personal style blends with yours. There is no one-size-fits-all defense attorney for every case.