Sunday, August 29, 2010

Kobe (mistakenly) props Heat: 3 Kings = Voltron

Via Land O' Lakers (Brian/Andy Kamenetzky):
The best, however, was Kobe's take on the new Miami Heat. After confirming he'd personally never have joined forces with two other superstars (not that there's anything wrong with that), there was a classic description of the South Beach trio: "They basically formed Voltron."

No doubt, a fantastic line and a clever reference. But for the sake of accuracy, I'm gonna have to correct The Mamba. As the animated introduction notes, Voltron is "loved by good and feared by evil," which is basically the Bizarro-version of the NBA's newest black hats. There is a reason I only refer to the Heat as the "evil super team." I'm not biased enough to claim the Lakers are necessarily the consensus "loved by good" squad. ("Loved by those with good taste," sure, but that's another story.) But I absolutely know which team ain't BFF's with "good."

Mikhail Torrance - He's ALIVE!

Former Heat prospect Mikhail Torrance is, according to his agent Happy Walters, conscious, ambulatory and improving.

August 28: Great news on Mikhail Torrance. He walked today! He had assistance, but he followed commands! He knows his right from his left, and he is starting to focus on objects. Doctors pinched him and he grimaced, an improvement from a few days ago when he showed no [response]. Tomorrow he will be able to leave ICU and go to a private room. All your prayers and good wishes are working! Myself and family thank everyone so much.

August 27: [Mikhail Torrance] is opening his eyes. Trying to focus. Starting to recognize some things. This is great news and everyone is excited. We hope that he will be able to follow some commands soon!

Friday, August 20, 2010

UD update: Talking points

Eric Schwartzreich, the attorney representing Udonis Haslem, said (today) Friday he is hopeful of the felony possession marijuana case against the Miami Heat forward being dropped as early as next week.

According to Schwartzreich, a meeting with the arresting Florida Highway Patrol trooper and state attorney's office is scheduled for Tuesday. "I think there's a good chance that they'll "no action" the case," Schwartzreich said. "There is a chance that, maybe, by next week the case is resolved."

Good: Do not plea to possession of any kind, at any level. Last resort: take it to trial.

Bad: Don't box Prosecutors/LEAs into corners by publicly predicting resolutions before they're resolved.

There are enough contestable elements in Haslem's and/or Fleming's arrest reports to challenge on one or more of the following grounds.

Talking points.

1. Search and seizure

Excerpted from Donet, McMillan & Trontz, P.A. (Miami)

The best defense to a drug possession, drug sale or drug trafficking charge is challenging how the evidence was obtained by the police. Law enforcement authorities and prosecutors build their possession, sale and trafficking cases based on evidence obtained through search and seizures. Law enforcement must comply with the 4th Amendment to the United States Constitution and well-established search and seizure laws to legally obtain evidence.

Evidence obtained by an illegal search and seizure, which violate an individual's rights is inadmissible and will be suppressed. In a nutshell, any illegally obtained evidence can not be used to convict you of the drug charge for which you were arrested. The Miami criminal defense lawyers at DMT are experts in challenging illegal searches and seizures by filing motions to suppress. If the judge grants the motion to suppress, the evidence is inadmissible against you, the prosecutor cannot proceed and we win your case.

One of the most common examples of how law enforcement authorities violate an individual's rights is obtaining an involuntary consent to search an automobile or home. Always remember, you have the right not to consent to the search of your property. Make the police get a warrant. If the police threaten you in away to get your consent, i.e. taking your child away or having you deported, the consent is not voluntary and the search is illegal. Any drugs found as a result of an illegal search are inadmissible.

2. Constructive possession.

Excerpted from Richard E. Hornsby, P.A. (Orlando)

The law of constructive possession in Florida requires the prosecutor to prove 3 distinct elements to convict:

Knowledge of the marijuana's presence;
Knowledge the substance was marijuana; and
Dominion and control over the marijuana.

Martoral v. State of FLorida: As the marijuana was not found on appellant’s person, this case is one of constructive possession. In order to establish constructive possession, the State must prove that the defendant had knowledge of the presence of the drug and the ability to exercise dominion and control over the same. “When a vehicle is jointly occupied, a defendant’s [m]ere proximity to contraband is insufficient to establish constructive possession.’” Hargrove v. State, 928 So. 2d 1254, 1256 (Fla. 2d DCA 2006) (quoting Skelton v. State, 609 So. 2d 716, 717 (Fla. 2d DCA 1992)). “Knowledge of and ability to control the contraband cannot be inferred solely from the defendant’s proximity to the contraband in a jointly-occupied vehicle; rather, the State must present independent proof of the defendant’s knowledge and ability to control the contraband.”

In the instant case, the State met its burden with respect to the knowledge element of the offense. The officers testified that appellant was in the driver’s seat of the truck and the marijuana was in a compartment in the dash in plain view. The fact that the drugs were openly within appellant’s line of sight is evidence from which appellant’s knowledge of the presence of the marijuana may be inferred.

This, then, brings us to the matter of dominion and control. Knowledge of the presence of the drugs and the ability to exercise dominion and control over the drugs are not the same. See Jean v. State, 638 So. 2d 995, 996 (Fla. 4th DCA 1994) "[I]t is conceivable that an accused might be well aware of the presence of the substance but have no ability to maintain control over it”. In the case law, the concepts of “dominion” and “control” involve more than the mere ability of the defendant to reach out and touch the item of contraband. Thus, even where drugs are found in plain view, the evidence will be insufficient to establish constructive possession unless there is evidence that the defendant exercised dominion and control over the drugs.

Because the State’s proof in this case relies on the theory of constructive, joint possession, we are obliged to reverse [conviction] since there was no independent evidence of appellant’s dominion and control over the marijuana.

Monday, August 16, 2010

Haslem, Beasley et al.: Tread carefully


Advice to Eric Schwartzreich, Haslem attorney: "Aggressive" representation in the right dosage at the right time and place can help. However, the 1st rule of medicine also = the 1st rule of law: Primum non nocere, do no harm. Specifically and in your case, do not defend your client in the press until or unless you have a full, complete grasp of the facts.

Example. Schwartzreich to Herald: "The marijuana found in the vehicle was found in a duffel bag. Inside the duffel, there were documents belonging to the passenger of the vehicle [Antwain Fleming], and the passenger admitted to possession of that marijuana." Police to AP: "Marijuana was eventually found in two places, first in a black case under the driver's seat, then later in a blue nylon bag." Translation: In his comments to the Herald, Schwartzreich declares "the marijuana," i.e., all discovered marijuana, was confined to "a duffel bag." Yet, nowhere in the Herald article does Schwartzreich mention a "black case under the driver's seat" where police reportedly discovered a 2nd cache separate and apart from Fleming's "blue nylon" duffel bag. Was Schwartzreich unaware of the 2nd cache? Did he not complete an inventory of incident facts & details? Is his seeming lack of evidentiary due diligence part of a plan? A strategy? A clumsy, overeager, miscalculated feint to shape public opinion by cherry picking facts for media distribution? Where the public is concerned, explain everything, else save your explanations for chambers and/or trial.

Advice to Haslem: Change and/or expand your legal team to include media and forensic expertise as well as criminal defense representation with exemplary success defending your specific charges and/or representation with deep, reciprocal ties to the local law enforcement agencies, district attorneys & potential trial courts (judges) involved.

Tim Reynolds for the Associated Press:
Udonis Haslem of the Miami Heat released a statement Monday night expressing confidence that he'll be vindicated, one day after he was charged with possession of marijuana following a traffic stop. "I am confident that once the judicial process runs its course, I will be cleared," Haslem said.

A passenger in Haslem's 2008 Mercedes sedan told the Florida Highway Patrol that marijuana found in the car Sunday afternoon after the Heat forward was pulled over for speeding on a South Florida highway was his - and Haslem's attorney insisted that's enough reason for the third-degree felony charge to be dropped. Eric Schwartzreich, Haslem's attorney, said the State Attorney's Office is reviewing the arrest paperwork, a process that should be completed in the coming days. Haslem is accused of possessing more than 20 grams of marijuana, a third-degree felony, along with four misdemeanor counts of having drug paraphernalia. "He's a little rattled," Schwartzreich said. "He's upset. He doesn't know how he can be charged with this."

A hearing in Haslem's case has been scheduled for Sept. 14 in Miami-Dade County court.

Haslem was freed from custody late Sunday night, about seven hours after a trooper pulled him over for driving 78 mph in a 60 mph zone on the Gratigny Parkway. Haslem's car was searched multiple times and marijuana was eventually found in two places, first in a black case under the driver's seat, then later in a blue nylon bag. Antwain Fleming, Haslem's passenger [and reportedly longtime friend], told troopers that all the marijuana in the car belonged to him. Both were transported into police custody. Court records show Fleming faces a charge of possessing less than 20 grams of marijuana, a first-degree misdemeanor, along with another misdemeanor charge related to paraphernalia.

"We are confident Udonis Haslem will be vindicated," Schwartzreich said. "We have a situation where the passenger admits the marijuana was his and Mr. Haslem tells police nothing was in the vehicle. "I think the police report speaks for itself," Schwartzreich added. "I am hopeful that Udonis Haslem will not be charged."

Haslem's car, worth more than $100,000, may face forfeiture, according to court records. The speeding ticket brings a $269 fine, and FHP spokesman Sgt. Mark Wysocky said Haslem was also cited for having illegal window tint.

"We are aware of the incident involving Udonis Haslem yesterday afternoon, and while we fully support our players, since this is a pending legal matter we will have no further comment at this time," Heat president Pat Riley said in a statement Monday evening.

Haslem has spent all seven of his NBA seasons with the Heat, and the South Florida native signed a new five-year contract to stay with the team last month. "He is our anchor, he is a true warrior and a great professional," Riley said in July, after Haslem announced he would forgo higher-paying offers elsewhere to stay in Miami and continue playing alongside Dwyane Wade, plus team up with marquee acquisitions LeBron James and Chris Bosh. During his NBA career, Haslem has averaged 10.0 points and 8.1 rebounds for Miami, helping the Heat win the 2006 NBA championship.

Israel Gutierrez for the Herald:
The attorney for Heat forward Udonis Haslem, who was arrested Sunday after a traffic stop and faces a charge of felony possession of marijuana, believes his client was wrongly arrested and is confident the charges could be dropped altogether.

Haslem's attorney, Eric Schwartzreich, said Monday that the marijuana found in Haslem's 2008 Mercedes sedan was inside the duffel bag of the passenger, Antwain Fleming [a longtime Haslem friend], and that Fleming admitted to police that it was his. Still, it was Haslem who [consented to the vehicle search which resulted in his arrest for felony possession while] Fleming faces a misdemeanor charge [for] possessing less than 20 grams of marijuana.

Schwartzreich said he is working with the state attorney's office, which is reviewing the arrest paperwork, and believes the charges could be dropped within the next couple of weeks.

Haslem was released from custody Sunday night, about seven hours after he was pulled over for driving 78 mph in a 60-mph zone on the Gratigny Parkway between Northwest 42nd and 57th avenues in Hialeah. According to a statement released by the Florida Highway Patrol, [the citing] trooper "smelled an odor of marijuana from within the vehicle." [T]hree containers of marijuana were [subsequently discovered] which Fleming [immediately claimed as his own].

"The marijuana found in the vehicle was found in a duffel bag," Schwartzreich said. "Inside the duffel, there were documents belonging to the passenger of the vehicle, and the passenger admitted to possession of that marijuana. The marijuana [belonged to the passenger, Antwain Fleming]. Udonis Haslem told the trooper that he could search his car ... Udonis Haslem [says he] did not know there was marijuana inside the vehicle."

Haslem might face forfeiture of the car, although that would require proof that the marijuana was his, according to Schwartzreich. Haslem also was cited for illegal window tinting.

In his seven-year career, all with the Heat, Haslem never has had any marijuana or drug-related incidents.


Ethan Skolnick: But here’s the question, and it’s one that all of us in the media should be asking ourselves: How different would the reaction have been if Michael Beasley had been in that driver’s seat, rather than Udonis Haslem? We all know, don’t we? We would have called him careless, immature, stupid even, before all the facts were in.

Uh. There's no no moral or objective dilemma here. Or even, as the above suggests, a double-standard.

Simple, factual, consistent.

"The media" could -- and perhaps should -- chide Haslem for an obviously "careless," "immature", "stupid even" episode of decision-making given:
  1. the alleged facts which Haslem's lawyer has not disputed: almost 20 mph over the speed limit on a [ed. Miami freeway], illegal vehicle tint, apparent though unattributed consumption of an illegal substance in Haslem's vehicle in Haslem's presence; the apparent felonious possession of an illegal substance (suggestively) attributed to a known Haslem aquaintance in Haslem's vehicle, in Haslem's presence.
  2. the recent passing of Haslem's mother, which Haslem dare not disgrace in any attempt to frame this incident as a form or byproduct of grief.
  3. Haslem's high visibility as a Heat spokesperson and community role model who counsels against drugs to schools & kids.

However, "the media" should also follow its objective duty by deferring broad, loud or protracted condemnation considering the preponderance of sound decision-making defining Haslem's history, character.

Simple, factual, consistent.

Men behaving badly?

Haslem, lapse, singular, episodic.

Beasley, lapses, plural, chronic.

Will Haslem be punished by the league? By the Heat?

Supposition: If Haslem isn't tried for felony possession and wasn't a consumer or co-consumer of said substance, probably not, or at worst, mildly. If Haslem consumed said substance without control or possession, standard league protocols could apply. Otherwise, it was still a worse-than-bad decision by Haslem to even allow consumption, much less storage or transport of an illegal substance in his vehicle, in his presence, as the vehicle's legal owner/operator. And Haslem should anticipate closer scrutiny of his acquaintances, choices, any past allegations previously overlooked. Less serious but related, the (presumably) legal possession and storage of a registered firearm along with traffic citations for speeding and illegal tint wouldn't normally, of themselves, trigger sanctions by team or league.