Preparing and Litigating Motions to Suppress Statements and Confessions

1.  Be aware of the psychological impact of confessions

    --The mere mention of the word changes the attitudes of judges, prosecutors, jurors and defense lawyers. “Confessions” destroy the adversarial process.

     --A large percentage of confessions are false, in whole or in part.

2. Discover the statements: “The state was obligated to disclose to Mason any statement that Mason made. See Fla.R.Crim.P. 3.220(b)(1)(C). The fact that the witness was on the state's witness list and Mason failed to depose him does not vitiate the state's discovery violation.” Mason v. State, 654 So.2d 1225 (2d 1995)

3. A motion to suppress statements can be filed at any time before trial, or even during trial. Fla. R. Crim. Pro. 3.190(i)

4. The key question: Was the statement voluntarily made? The requirement of the Fourteenth Amendment is that the trial judge make a determination that a confession was freely and voluntarily given before it is to be considered by a jury. Jackson v. Denno, 378 U.S. 368 Finding must be made with “unmistakable clarity.”

 a) Promises: Confessions are not deemed freely and voluntarily given if they have been elicited by direct or implied promises of leniency. State v. Walter, 970 So. 2d 848, 851 (Fla. 2d DCA 2007). Thus where an officer offers to “help” or “fix things” without clarification on the limits of the officer's authority, courts have found that a defendant's resulting confession was involuntary. See Day v. State, 29 So. 3d 1178, 1181 (Fla. 4th DCA 2010); Ramirez v. State, 15 So. 3d 852, 856 (Fla. 1st DCA 2009).    Dermio 112 So.3d 551 (2d DCA 2013)

Better case: Day v. State, 29 So. 3d 1178   4th Dist. 2010

b) Threats or Coercion: “Once it is established that there were coercive influences attendant upon an initial confession, the coercion is presumed to continue "unless clearly shown to have been removed prior to a subsequent confession." State v. Outten, 206 So. 2d 392, 396 (Fla. 1968)

5.    Miranda issues:

•       Whether the defendant was "in custody"? (if so, why? Illegal arrest/detention = suppression: B.S. v. State, 548 So.2d 838 (3^rd 1989) (police station confession was improperly admitted as the product of a non-consensual confinement)

•       Where the statements in response to "interrogation?" "Interrogation takes place ... when a person is subjected to express questions, or other words or actions, by a state agent, that a reasonable person would conclude are designed to lead to an incriminating response." Traylor, 596 So.2d at 966

•       If the defendant was in custody and in response to interrogation, then were the Miranda warnings properly given?

•       If so, did the defendant make a intelligent, voluntary and knowingly waiver?: “To determine if a waiver is valid a court must make two inquiries. First, the court must determine if the waiver was voluntary in the sense that it was the product of free and deliberate choice rather than intimidation, coercion, or deception. Second, the court must determine whether the waiver was executed with a full awareness of the nature of the rights being abandoned and the consequences of their abandonment., the State has the burden of proving the waiver is valid by a preponderance of the evidence. “State v. Sliney, 699 So.2d 662, 668 (Fla. 1997)

•       Waiver of Miranda should be in writing Traylor, 596 So.2d 957. 966

•       Was statement recorded? If not, is it reliable.

6.  Trial issues:

 --carefully review statement and redact irrelevant, inadmissible portions.

--Be on lookout for Detective confronting Defendant with guilt: Mohr v. State, 927 So.2d 1031 (2^nd DCA 2006)(The jury could not reasonably have been expected to disregard the aspersions of guilt created by the detective's word)

--You can litigate voluntariness before the jury, and call expert witnesses on false confessions. Boyer v. State, 825 So.2d 418 (1^st DCA 2002)

 -- Jury Instruction:: “A (Defendant’s) statement should always be considered with caution and be weighed with great care to make certain it was freely and voluntarily made.  . . .  If you conclude the defendant’s out of court statement was not freely and voluntarily made, you should disregard it.”

7. What if you want the Defendant’s statement admitted? The State may not be able to resist. But if they do, See Judge Farmer’s dissent in Cotton v. State, 763 So.2d 437, 445-46, or consider whether the statement falls under a hearsay exception/

8. Appeals:

   Orders denying motions to suppress confessions are not dispositive unless stipulated to by the parties. England v. State, 46 So. 3d 127, 129 (Fla. 2d DCA 2010)

    At trial you must renew your objection at the time the statement is admitted.

Is 'shaken baby syndrome' shaky science?

 Pamela Jacobazzi of suburban Bartlett has spent the last 14 years in prison for violently shaking 10-month-old Matthew Czapski to death. The 58-year-old former home day care operator is among hundreds of people nationwide convicted in recent decades on the basis of what doctors call "shaken baby syndrome." That diagnosis gained prominence in the 1980s and '90s, as publicity campaigns warned of the dangers of shaking infants.

Lawyers for Jacobazzi argued that her conviction should be set aside because jurors didn't hear evidence of other medical theories on what killed Matthew.

In September, though, DuPage County Judge Robert Kleeman rejected her bid for a new trial. He didn't rule on the validity of shaken baby syndrome. Instead, he said her trial attorneys had possessed all available medical evidence and had presented a reasonable defense.

But a question lingers here and in similar cases across the U.S.: Is shaken baby syndrome based on shaky science?

You may be surprised to hear it after so many years of warnings on this, but there's a fierce medical and legal debate over shaken baby syndrome, known as SBS. Critics argue that research doesn't show that the symptoms commonly associated with the diagnosis — bleeding and swelling in the brain and behind the eyes — can be caused by shaking alone.

"Virtually all the hallowed tenets of shaken baby syndrome have been challenged on the basis of scientific principles and have been found wanting or wrong," Dr. Jan Leestma, a former Lurie Children's Hospital of Chicago neuropathologist, wrote in his 2009 textbook, "Forensic Neuropathology."

Leestma tells us that a raft of biomechanical studies cast doubt on the idea that shaking a baby will generate enough force to seriously injure his or her brain or cause other symptoms of the diagnosis. But SBS proponents tell us that those studies are incomplete; they don't, for instance, adequately account for multiple or repeated shakings over time.

Let's stop right here to make one thing clear: Violently shaking a baby can lead to serious injuries, particularly if there is neck whiplash or the baby's head strikes a wall or floor. No one, including those skeptical of the science underlying this diagnosis, suggests that such conduct is anything but dangerous and wrong.

That said, it's also clear that SBS is among the trickiest diagnoses for doctors to reach. Babies can't tell doctors what happened. Some illnesses and simple accidents can mimic the symptoms. In some cases, there are no outward signs of abuse. Often there are no witnesses to suspected abuse. What's more, injured infants may be lucid after whatever incident caused the injury. On occasion, infants may even be lucid for hours before they collapse and die. That expands the pool of potential causes and, if authorities suspect abuse, of potential perpetrators.

Jacobazzi is due to be paroled in 2015. But many other people are in jail across the country, convicted of shaking infants. Are some of them innocent? This complex but out-of-the-limelight debate will be hashed out in courtrooms and research labs. That's healthy for medical science, and for our justice system.

Decades ago, many doctors believed that if a child suffered from three symptoms — subdural (brain) and retinal bleeding and brain swelling absent a fracture or bruise to indicate an accident or fall — then the injuries likely happened through vigorous shaking.

In 2009, though, the American Academy of Pediatrics expanded its definition of shaken baby syndrome to stress that while shaking can cause injuries, other factors can be just as important, including the blunt impact of a head against a solid surface like a floor or wall. Researchers also stress that accidents, a child's pre-existing medical condition, medical history and genetic disorders can cause injuries that mimic the effects of abuse. The academy, based in suburban Elk Grove Village, suggested a broader term, "abusive head trauma," to describe the array of injuries abuse can cause.

Dr. Cindy Christian of the academy's committee on child abuse and neglect tells us the medical consensus remains strong around the science of SBS. "Some babies are injured by shaking," says Christian, who co-wrote the 2009 report. "Some by blunt impact. Some by a combination of factors." That report "doesn't say shaking is benign. It doesn't say shaking doesn't harm children. And it doesn't say there is no such thing as SBS.''

Expect to hear more about this. Last year the Innocence Network, a group of organizations that provide pro bono legal help for people who claim to be wrongly convicted, brought on a lawyer to pursue claims of innocence in shaken baby cases nationwide. Doctors will continue to refine the SBS diagnosis, evaluating new research and clinical experience.

The stakes here are high: A mistake in judgment can leave an abusive person in charge of a baby. Or it can land an innocent person behind bars.

That should leave us all shaken.

An Editorial from the CHicago Tribune publishes October 21, 2013

Affidavit in support of access to a DNA lab file

Some attorneys report to me that they are having trouble gaining access to the laboratory files maintained in DNA cases. I have prepared the affidavit below and perhaps that will of assistance should you run into discovery problems.

AFFIDAVIT

1. My name is Norman Adam Tebrugge. I have been a member of the Florida Bar since May 22, 1985. I became board certified as a criminal trial attorney in 1999. I spent twenty-three years employed as an assistant public defender for the Twelfth Judicial Circuit. For eighteen of those years I was assigned to the capital trials division. For the past five years I have been the owner/operator of Tebrugge Legal in Bradenton, Florida. At Tebrugge Legal I specialize in the defense of serious criminal cases, appeals, post-conviction, and consult with other attorneys on matters concerning DNA and forensic science.

2. In 1991 I represented a Defendant named John W. This case involved the first use of forensic DNA testing in the 12^th Judicial Circuit. My co-counsel and I litigated the DNA issues extensively.

3. Since that time I have been involved in the litigation of dozens of serious felony cases involving DNA evidence. I have worked with DNA experts employed by the Florida Department of Law Enforcement (FDLE), the Federal Bureau of Investigation (FBI), Lab Corp of America, and other DNA testing facilities. I have also undergone training on several occasions, including attendance at “DNA for the Defense” sponsored by the National Center for Science, Technology and the Law in cooperation with the National Institute for Justice.

4. I have been called upon to train lawyers throughout the State of Florida about the proper investigation of cases involving DNA. Most recently, on September 19, 2013, I delivered a lecture at the annual capital training conference. The title of the lecture was “Litigating Flawed Forensic Science Cases at Every Stage.” More than 100 capital trial attorneys received continuing legal education credits at this lecture.

5. In ever case involving DNA evidence that I have ever been associated with, I have obtained the complete laboratory file from the agency that performed the testing. This lab file has been voluntarily turned over to me upon request in every instance.

6. The complete laboratory file contains relevant information about the processing of the critical evidence in a DNA case. The typical laboratory file contains documentation of the exact evidence handled, chain of custody, a case tracking form, evidence screening forms, serology, a “STR Summary Sheet” (if STR was the method of testing used), extraction methods, quality control assurances, a statistics report,  and graphic information showing the results that were interpreted by the analyst.

7. I am of the opinion that the minimum standards of professional competence for an attorney handling a case involving DNA evidence requires that the attorney acquire the complete laboratory file. Without this file the attorney is unable to challenge the evidence in a meaningful manner and this can lead to a complete breakdown of the adversarial process.

8. Effective July 1, 2013, before allowing expert testimony, the courts of this state must consider whether:

1.    the testimony is based upon sufficient facts or data;

2.   the testimony is the product of reliable principles and methods; and

3.   the witness has applied the principles and methods reliably to the facts of the case.

     The only way for counsel for the Defendant to consider and determine whether DNA evidence meets this criteria is for the attorney to acquire the complete DNA laboratory file.

Under penalties of perjury, I declare that I have prepared and reviewed this affidavit for accuracy and that the facts stated in it are true.

N. Adam Tebrugge   

Florida Bar # 0473650

Board Certified Criminal Trial Attorney

Tebrugge Legal

520 12th St. W. #203

Bradenton, Fl. 34205

(941) 544-6151

www.TebruggeLegal.com

Adam@TebruggeLegal.com

Daubert Jury Instruction Florida

    This past week I had the honor of making a presentation on scientific evidence at the annual "Life Over Death" conference. One topic of conversation was the impact of Florida becoming a Daubert state as of July 1, 2013. I suggested that attorneys might want to start requesting special jury instructions in light of this change.
     In response, Jacksonville attorney (and all around good person) Teresa Sopp has drafted an initial proposed jury instruction concerning expert witness testimony in criminal cases. I see this as a good starting point:

DEFENDANT’S REQUESTED JURY INSTRUCTION

              NUMBER             AS TO DAUBERT ISSUES

     Expert witnesses are like other witnesses, with one exception -- the law permits an expert to give his/her opinion.

     In determining whether an expert’s opinion is reliable, you should consider the following:

          1.   Whether the opinion testimony based on sufficient facts or data;

          2.   Whether the opinion testimony the product of reliable principles and methods; and

          3.   Whether the witness has applied the principles and methods reliably to the facts of the case.

     Like other witnesses, you may believe or disbelieve all or any part of an expert’s testimony.

                                    Respectfully submitted,

Litigating Flawed Forensic Science Cases at Every Stage

Here is the powerpoint presentation.

RESTORING SANITY TO OUR CRIMINAL JUSTICE SYSTEM

Remarks delivered at the annual meeting of the Sarasota/Manatee 

chapter of the ACLU on March 16, 2013

  I come to you this afternoon from Stetson University College of Law where I have been teaching for the last four years. It is important to me to teach because it reminds me of the potential of the law, our country and our constitution, and helps me to combat the biggest enemy, which is cynicism.

    Thirty years ago I was a student at New College and I had a decision to make. On the one hand I could have gone on to graduate school and pursued a career in academics and teaching. This seemed like a beautiful option and I gave it strong consideration.

   On the other hand, I could pursue a career in the law. And my thinking was that I had lived a privileged existence up until then. I believed that I had a duty to my community to represent those who had not been given my advantages. I honestly believed in our country’s bill of rights but also knew that there was progress that still needed to be made. I was not naïve enough to think that I would change the world, but I was idealistic enough to believe that I had to try.

    So I went off to law school with the goal of returning to Sarasota and Manatee counties to work for the Public Defender’s office. In retrospect I can honestly say that I have no regrets about my career path. I spent twenty-three years at that office and did the best that I could for my clients and for this area. But certainly now, thirty years later, I have to wonder if any progress was made.

      My first assignment in 1985 was to represent homeless men arrested for various offenses like loitering and obstruction and public intoxication. We had problems in the downtown corridor, the Police Department was under orders to arrest offenders, our jail was full and there were no shelters available. Does any of this sound familiar? Has Sarasota really made any progress at all ? The biggest change that I have seen is that now, while homeless men are still arrested and fined and jailed, I am also aware of the ever growing population of homeless women and children. And despite the fact that I have worked for years for an agency whose mission is to end homelessness, there is still not a single family shelter that I can refer these families to.

      In 1986, I was promoted to the felony division and entered the front lines of the so called War on Drugs. It was in the 1980’s and 1990’s that the Florida legislature started passing increasingly harsh laws and building increasingly large prisons. Each year the penalties became worse, each year our law enforcement agencies became more militarized, each year the Department of Corrections took an ever increasing share of our State’s budget, and each year our Courts grew increasingly hostile to the rights of the individual citizen guaranteed by our Constitution.

    For the past quarter century I have gone to court nearly every day and seen thousands of our brothers and sisters, sons and daughters, shipped off to Florida penitentiaries. This exodus of mostly young men and women has decimated the heart of our community at an incalculable cost to us all. As I speak with you this afternoon more than 100,000 of our fellow citizens are incarcerated in the jails and penitentiaries of the State of Florida.

And when our citizens arrive at prison, they are not provided with treatment for their addiction, they are not provided with education or skills for their rehabilitation, and they are ultimately set up for failure by being releaed back to our area without the skills to succeed, but with the stigma of their incarceration which too often prevents any type of reentry and reintegration. As a society, what do we expect will happen to them? This phenomenon is described all too well in this book, FACING THE US PRISON PROBLEM

But meanwhile the grip of addiction has grown ever tighter because there is little or no treatment available, particularly to the indigent. Our laws remain so harsh that merely being in possession of a single pill bottle of pain killers can result in a 25 year minimum mandatory sentence, and not only is the Department of Corrections the largest share of our State’s budget, they have now announced that they are well over budget for this coming year.

The other consequence of this ongoing war on drugs is that it has necessarily become a war on our civil liberties. When we criminalize addiction, and when we prioritize enforcement of draconian laws, we incentivize lawless behavior by those who we entrust to protect us—our law enforcement officers, prosecutors and judges.

The ongoing struggle in the criminal justice system is between the rights of the individual and the power of the government. The reason we demand a bill of rights, the reason we think it is important to have a fair trial by an impartial jury, the reason we appoint counsel to those who cannot afford it, is because we believe in the dignity of each individual human and we believe in the promise that no one should have to sacrifice their liberty to the State unless the Government can lawfully establish beyond any reasonable doubt.

But day after day, as I go to Court, I am given reason to doubt these promises. Too often I have witnessed the powerless being targeted, too often I have witnessed prosecutorial discretion being abused, and too often, despite the fact that the law may be clearly on the side of my client, I have seen Judges ignore that law or completely disregard it.

   My poor wife has heard me complain on many occasions, “There is No Law!” But if we cannot depend upon those charged with enforcing our laws to follow those same laws, even when inconvenient, then it casts doubt upon our entire justice system

As my career continued, I began to defend the death penalty cases in this circuit. I have had the opportunity to go around the State and train attorneys and judges. I handled my first capital case in 1989 and I continue to work in this field to this day. This afternoon I am here to tell you that our death penalty laws are irretrievably broken. In saying this I want to acknowledge the pain and suffering that the surviving victims of homicide cases suffer. One reason we need to abolish the death penalty is to stop using that pain as political leverage, and to stop holding out the prospects of an execution date in the future as some sort of closure that may never occur.

       But this is the reality—there is no functional death penalty and there never can be, not as long as we understand that as human beings, we are incapable of making this decision in any type of fair and consistent manner, without making horrible mistakes along the way. In Florida right now we have over 400 people on Death Row, the second highest total in the nation. Just to have a Death Row is costing us, at a minimum, an extra 50 million dollars a year above and beyond the cost of life imprisonment. Florida leads the nation in exhonerations. We have had more innocent people sentenced to death in this state then any other, and we make more mistakes then any other. 

     In 2009, Maryland instituted new “reforms” that were supposed to fix the system. Instead, the reforms made the system even more dysfunctional and costly. It proved what we already know – the death penalty cannot be fixed. In fact, the lead architect of the reforms, Sen. Bobby Zirkin, reversed his opinion and voted FOR repeal, saying "We could execute an innocent person, and that weighs on my conscience too heavily not to cast a [yes] vote. Maryland therefore became the Sixth State in six years to abolish capital punishment. It is time for Florida to join this movement, and to reallocate the resources we are using on the death penalty towards overall improvement of our criminal justice system.

Apart from abolition of the Death Penalty, are there other solutions? Do they exist? How do we bring sanity to our criminal justice system?  And how do we do this in an age where resources are limited?

We start by asking some simple questions

–     What is that we are trying to accomplish?

–     What resources do we have?

–     How do we best allocate those resources?

So for instance, let’s take the issue of homelessness?

What is it that we are trying to accomplish?

It seems to me that what we are trying to accomplish is a safe and secure shelter for those who need one, which would then reduce the impact of homeless citizens upon the downtown corridor.

  In Pinellas County the Sheriff told the County Commission that they could spend millions of dollars to expand his jail, or they could help him open a shelter that is now known as Pinellas Safe Harbor: “The Harbor” came into being as a result of a series of partnerships involving the Pinellas County Sheriff’s Office, the City of St. Petersburg, Pinellas County Government and numerous homeless service providers in Pinellas County.  This group saw the need to better serve the chronically homeless, keep them out of the county jail and the criminal justice system, and the Harbor also operates as a portal of re-entry for inmates coming out of jail or prison.

With drugs, it seems to me that what we want to accomplish is to prevent addiction and provide treatment to those who are in its grips. Over the past 40 years we have demonstrated beyond any doubt that the criminal justice system is not getting this done. I am not the first one to say this but it bears repeating at every juncture—we need to treat drugs as a public health problem, not a criminal justice problem, and shift our resources into treatment and away from incarceration.

We are not going to accomplish this overnight, and meanwhile we are faced with our present system of laws that has removed all discretion in sentencing from our judiciary and placed it in the hands of prosecutors. There is a bill in the legislature this year that could be an important first step, we call it the “safety valve” bill.

   This bill is part of a movement towards “Smart Justice.” And the proponents of Smart Justice are both liberal and Conservative, Democrat and Republican.

But what do we do about our civil liberties? How do we turn our rights from words on paper into power? We do it through accountability.

This year, actually on March 18, we celebrate the 50^th anniversary of perhaps the most important of all of the United States Supreme Court decisions. An inmate in a Florida jail, perhaps one of the most powerless people in our society, read the words of the Sixth Amendment to the United States Constitution. And he saw these words: In all criminal prosecutions, the accused shall enjoy the right to have the Assistance of Counsel for his defense.”

This inmate appeared in Court and told the Judge he was too poor to afford counsel,

The COURT: replied: I am sorry, but I cannot appoint Counsel to represent you in this case. Under the laws of the State of Florida, the only time the Court can appoint Counsel to represent a Defendant is when that person is charged with a capital offense. I am sorry, but I will have to deny your request to appoint Counsel to defend you in this case.

The inmate replied: The Constitution says I am entitled to be represented by Counsel.

    From his prison cell, this inmate took up a pencil and prepared a handwritten petition to the United States Supreme Court. And as Robert Kennedy later said, “if Clarence Gideon had not prepared this petition the vast machinery of American law would have gone on functioning undisturbed. But Gideon did write that letter; the court did look into his case; he was re-tried with the help of competent defense counsel; found not guilty and released from prison after two years of punishment for a crime he did not commit. And the whole course of legal history has been changed.”

The course of legal history changed because every day, criminal defense attorneys are in the courtrooms of our State, fighting to protect the constitutional rights that we all share.

 But we need to hold the players in the criminal justice system accountable

The last vestige is our juries, our citizens, and our voters.

Let our legislators know that we want a different approach, that from this point forward we want to be smart on crime and use our resources not only to protect our communities but to strengthen and improve them.

Demand accountability from our judiciary—ask them if they will uphold our constitution, and ask them what that means to them.

Demand from our prosecutors assurances that they will seek justice, not convictions, that they will be fair in all their dealings, and that they will hold Government accountable to the same degree they hold citizens accountable.

And finally—be engaged citizens. Pay attention. Vote. Show up for jury duty, and when you do, hold the Government accountable, make sure you are satisfied with their work, make sure that the Citizen receives all of the protections that he or she is entitled to.

When we demand this type of engagement from all the players, truly we can restore sanity to our criminal justice system.