What Are The Potential Defenses Used In These Cases?

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

One of the most common things you look for as a defense attorney are ways to keep out evidence, and that is one of the most important types of defenses. We have other types of defenses. One is called the SODDIT Defense. A SODDIT defense simply means some other dude did it and that’s a potential defense. My client didn’t do it, somebody else did it. Another potential defense is that the decedent is not dead but has merely just disappeared for a longer period of time than would be normal. Going back to the most common area to look for defenses that would be in the area of evidence and evidence exclusion for what is known as a motion to suppress. For example, I had an extremely serious case involving someone charged with killing for other people. During the interrogation, the police officers used an illegal technique of interrogation known as the Christian Burial Technique.

There are lots of reasons for it but it’s considered inherently coercive and improper and illegal so sure enough I filed a motion to suppress. The judge ended up suppressing all of the material after a certain page in the transcript of record, I believe it was after 97 pages of statement had been given, everything after that was suppressed. Because of that suppression of part of the evidence, the state pretty much figured out that I might want to potentially enter the other half of the statement after getting it suppressed during the defense case in order to make them look bad, so quite wisely, the prosecutor who was prosecuting that case decided not to enter that evidence into evidence at all. This is an example where a motion to suppress striking part of a statement was actually effective for trial purposes for eliminating the statement entirely.

This is one of the most important defenses that lawyers can look at. Those defenses related to evidence, whether they are statements, scientific evidence, or eyewitness observations. It is critically important to examine each piece of evidence for its admissibility. This is something that people really don’t see and really don’t understand about defenses to legal cases generally. Sometimes, it strangely enough happens that the prosecutor will charge somebody for a case where it gives rise to a motion to dismiss. That’s pretty hard to do in Florida but there have been scenarios where someone was charged with first degree murder when in fact it would have been more appropriate based upon the law and the facts to charge that person with second degree murder and that person was overcharged. So that can potentially be a defense to murder.

Generally speaking though, with your murder, manslaughter and homicide types of charges, they are going to be very fact specific. If you have a vehicular homicide, that’s a very different thing than a non-vehicular homicide. So when you have a vehicular homicide, you may have other defenses that apply entirely. One must not forget about the law of principles in Florida. The law of principles has bit many a defendant. For example, someone may drive another person up to an auto parts store, as happened in Pensacola, two people got out of the vehicle, went into the store and to the utter horror of one of them, both of them had planned to rob the place, but one of them had a gun the other guy didn’t know about and shot the guy working behind the counter and killed him. They both ran out of the store, jumped in the car and to get away, driver drove away going “What happened, what happened”.

He honestly had no clue that a murder had just occurred until later, yet when all three of them were arrested, he was charged as if he had pulled the trigger. He was specifically found not guilty of death penalty murder but he was found guilty of murder as a principle and sentenced accordingly. So we look at defenses to principle charges as well which frankly could be a seminar in and of itself.

Do Most Of These Cases Go To Trial Or Do They Plead Out?

When you have death penalty cases and the only plea offer is death, those cases are always going to trial because there is no incentive for the defendant to enter a plea of no contest or guilty at all. So if it’s the death penalty case, it is almost certain to go to trial unless some unusual fact arises that results in a reduction of charge or there is some need for the prosecutor to cut a deal because they need certain information that only the defendant has. Generally speaking, death cases almost always go to trial. Other cases that are non-death in nature, as long as the maximum sentence is not the plea offer, they often will end up with plea bargains. The reason for that is simply because generally speaking, about 99% of all cases do not go to trial. They end up with some kind of negotiated settlement.

A lot of people don’t understand that when they hire a criminal defense lawyer, the negotiating skill of that particular lawyer is going to be tied directly to the fear factor that lawyer can produce when it comes to going to trial. A lawyer who is not known to be very skilled at trial is not going to produce the same plea bargain as a lawyer that is known to be very skilled at trial. This is true generally and this is true with these types of serious cases as well.

Why Is It Critical To Hire An Experienced Attorney To Handle Murder Or Manslaughter Cases?

The Florida Bar has petition the Supreme Court for a rule of criminal procedure and the petition was granted regarding minimum standards of skills on death penalty cases. When it comes to death penalty cases, there are actual bar rules and rules of criminal procedure that pretty much limit who can litigate a death penalty case and who cannot. The general rule now is that very few lawyers can litigate a death penalty case. When I started my career, if you had virtually any amount of criminal defense experience and were breathing, you could get appointed to a death penalty case and this actually happened to me as an assistant public defender. However, what I have learned is there are just some things that you have to know from experience, you have to know what it’s like to try and use the acumen their testimony theory, you so often hear from South Florida Rambo Litigators with the county medical examiner only to find out that he is going to do back flips after being well coached by the state attorney and changed his testimony completely when it comes to the bond hearing.

This actually happened to me. I would not be prepared for something like that now had that not happened then. At the same time, you certainly don’t want somebody learning when your life is on the line or your family member’s life is on the line. This is an area of the law that requires the highest degree of skills results in the largest number of legal motions by far. I would guesstimate that easily 40% of all of the appeals that are in the appellate system in Florida – and this is just a number off the top of my head based on what I read when I keep up on cases – are death penalty related cases and the rest are everything else. So it’s one of the toughest areas of litigation, it’s one of the most serious areas of litigation, and this is an area of law where you start to see the skill differentiators.

When you start getting into your major felonies, your sexual battery cases, your capital sexual battery cases, your capital murder cases, that’s when you really start to see the skill differential between lawyers. When people go to court and observe lawyers, most of the time it’s not in the trial setting. Most trials in Florida tend to be very short. In contrast, murder cases are almost always going to last a week. I know that some lawyers have had trials that did not last nearly as long but in my entire career, I have never had a murder, manslaughter or homicide case that lasted less than 5 full days and most of them have lasted more than 5 work days. So you have to have a certain level of training to have the stamina to continue operating at a very high level when you are tired because I can assure you on the fifth day of the murder trial everybody on both sides is exhausted.

It’s very important to plan for that and to know to plan for that. Someone who hasn’t handled major felony litigation on a very high level is going to be surprised by that, it can affect their performance greatly, they are not going to have the protocols necessary to get around that and their performance can suffer. So this is an area where your question to any perspective lawyer that you are considering for hiring for a murder, manslaughter or homicide case is “How much experience do you have and are you certified by the Florida Bar as a specialist in criminal trial law?”

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

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