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Lake Legal News A Quarterly Magazine

Issue No. 21

SPECIAL REPORT: No Longer Tinkering With The Machinery Of Death... Also: The Milton Chronicles

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Me e t A Court Reporter:

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Tina Bussiere spent three years becoming a court reporter, with a f lexible schedule that she loves.

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Fe at ure: Find out why written letters to

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Fe at ure:

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L ega l Blott er:

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Humor's Last Stand: Some hand-

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Legal News jail inmates around the country—including here in Lake County—are once again able to f ly. Now-retired Judge William A. “Bill” Milton Jr. opened his treasure-trove of photos and clippings for the “Milton Chronicles.” Newsworthy happenings from the civil and criminal arena, with a local emphasis. picked humor from the finest batch of cartoons available. (Licensed, by the way, not stolen!)

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David W. Nor r is, J. D. Circa 1989

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Teen Court Report: Get

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At t orney Di rec t or y: A

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Community Cork Boa rd: A

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Last Rol l Of Fi lm: ‘Around town’

What possible connection could exist between Circuit Judge Mary P. Hatcher's recent investiture and Elvis Presley?

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“[E]ntirely discredited and unreliable scientific evidence” (concludes the Florida Supreme Court), kept a man entangled in the “machinery of death” for more than 25 years.

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updates and an insider's perspective on local Teen Court events from teenage-reporter Connor Jenkins. helpful directory of attorneys listed by their main area of practice.

PHOTO: James Hope, J.D.

Author, radio talk show host and syndicated book reviewer Gary S. Roen shares his book reviews with Lake Legal News.

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Lake

Legal News

Publisher / Executive Editor James Hope, J.D. Website:

www.AttorneyJamesHope.com

Associate Editor Marilyn M. Aciego Contact:

LakeLegalMarilyn@Gmail.com

Official Photographer Bonnie Whicher Website:

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Advertising James Hope, J.D.

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Contact: Contact:

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Cover Photo Thinkstock / Stockbyte Contributing Authors Howard H. “Skip” Babb Jr., J.D. William A. “Bill” Milton Jr., J.D. Mary Ellen Griffith Gary S. Roen Connor Jenkins

All contents © 2015 by James Hope D/B/A Lake Legal News. All rights reserved. Printed in the United States of America. Nothing may be reproduced in whole or in part without written permission from the publisher. Lake Legal News is not responsible for the contents, products, or services represented in any advertisements. Statements and opinions expressed in this publication are those of the authors and are not necessarily those of Lake Legal News or its staff. Any advice contained within this publication is general in nature, and is not intended to be relied upon in lieu of an actual consultation with a licensed attorney concerning the specific facts of your own situation and the most current state of the law. Unless pursuant to prior written arrangements with Lake Legal News, all submitted materials, whether written, photographic, or in other form will become the permanent property of Lake Legal News and shall be treated as unconditionally licensed and assigned to Lake Legal News for publication in print, via the internet, or through other medium, however logos and other legal marks as well as original copyrights remain the property of their respective owners. All submissions grant a right to Lake Legal News to edit said materials for accuracy, brevity, legality, or other concerns, and to title, caption, or make editorial comment upon such materials. Persons submitting materials agree to hold the publisher and staff of Lake Legal News harmless against claims of defamation, copyright infringement, invasion of privacy and unauthorized use of any person's name, photograph or personal information.

For advertising information and all other inquiries about this publication, contact the Publisher / Executive Editor: Write: Lake Legal News · Post Office Box 790 · Tavares, FL 32778 E-mail: LakeLegalNews@Gmail.com · Visit: www.LakeLegalNews.com Phone: 352-408-6338

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Lake Legal News Feb. 2015


Photo: Bonnie Whicher

James Hope, J.D. Publisher Executive Editor

prognostications pontifications platitudes prattle f r^om the Publisher FEBRUARY, 2015

Right out of the box I have two exciting things to report to all of you loyal readers out there in Magazine Land: First, beginning with our “5th Anniversary Issue” (published this past November) we implemented a vastly improved system for readers everywhere to enjoy the digital version of LLN. To-date, the main drawback with the archived Issues on the LLN web site (www.LakeLegalNews.com) has been that certain mobile devices—notably, iPhones and iPads—could not access the 3-D feature which allows one to flip through the ‘virtual’ magazine. Going forward, we are now using www.Issuu.com as an alternative, and you will find the overall user-experience (including mobile devices) to be vastly improved.

Lake Legal News A Quarterly Magazine

Issue No. 20

5

th Anniversary Issue! p. 30 Also: Our Album Of Lost & Forgotten Photos...

Second, being an utter glutton for punishment I have launched a second quarterly magazine, titled “ComedyWatch.” (We're not talking “Knock-Knock” jokes here.) To provide an inkling of the type of comedy the magazine will feature, let's just note that I threw Bill Cosby on the very first cover—because we can all agree that nothing says “comedy” better than a comedian embroiled in a scandal so bad that for a public mouthpiece he uses not just his lawyer, but also his wife. Shall we coin a new phrase? How about, “Stand by your stand-up comedian.”

We are now available on iPhones, iPads, and other mobile devices! Search us at: www.Issuu.com

Lake Legal News Feb. 2015

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meet C

u rt R ep o r t e R

A

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Tina Bussiere Court Reporter Although Court reporting is her career, Tina Bussiere's love of sports has never wavered, and though she isn't setting records at Evans High School in Orlando, Florida, anymore, she does enjoy attending the sporting events, dance recitals and plays of her five grandchildren. “I realized that if I don't spend time with them while they're young, they aren't going to want to hang out with me when they're older,” she tells Lake Legal News.

Writer: Marilyn M. Aciego Photo: Bonnie Whicher

ties as part of her work, Lake County is her favorite venue and close to home.

Other than the interesting things she sees and hears—once a witness fainted as she was taking the stand and nearly knocked over Bussiere's steno machine—her favorite part of the job is the flexibility. “I can work the job around my schedule. My husband and I like to travel and it makes it possible for us to go on a lot of trips.” “I've also had the opportunity to work with a Raised in Orlando, Bussiere played bas- wide variety of people; attorneys, judges, ketball and softball and ran track and doctors and interpreters to name a few.” cross-country in high school. She broke her left wrist once, and even though Being an integral part of the mechanics she was in a cast she still managed to of actual court proceedings, Bussiere isn't beat the school's high jump record! impressed by shows such as “CSI” and “Law & Order.” “I don’t think it's anything Bored with retail sales more than a decade close to what I see in court or how things ago, Bussiere decided she would enroll in are really done. They seem to have an court reporting school—an endeavor she investigator do it all, even get DNA results quite emphatically states is a three-year right away. That's not how it works at all.” program; most people seem to think it's only one year. She has spent her entire And if three grown children, five grandcareer at Kerr & Associates (in Tavares, Flor- children, a husband, two Shar-pei dogs, ida), and “really love[s] it there,” she says. full-time court reporting and travelling weren't enough to juggle, Bussiere While Bussiere travels to many coun- will soon be starting guitar lessons. 

“CSI” and “Law & Order” do not impress this professional court reporter. 8

Lake Legal News Feb. 2015


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www.LakeLegalNews.com Lake Legal News Feb. 2015

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by James Hope, J.D.

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Lake Legal News Feb. 2015


O

yez! Oyez! Oyez! Jails throughout the country—including the Lake County Detention Center in Tavares, Florida—have slowly but surely fallen victim to (of all things), the law. The oncepopular prohibition which mandated (via local administrative fiat) that inmates be limited to receiving only postcards has ground to a screeching halt. Let traditional letter writing resume in earnest! Giving credit where credit is due, it was a recent successful federal lawsuit against Washington's Lewis County Jail—spearheaded by Prison Legal News (published by the Human Rights Defense Center)— that likely did the most good in throwing jailers across the country off the postcardonly bandwagon once and for all. Main points from the case—as explained by the United States District Court issuing its September 10, 2014 injunction favoring PLN—are summarized below [numerous citations and exhibit-references omitted]: PLN publishes and distributes a monthly journal of corrections news and analysis, as well as books about

the criminal justice system and legal issues affecting prisoners, to prisoners, lawyers, courts, libraries, and the public throughout the country. From September 2013 through October 2013, PLN mailed to prisoners of Lewis County Jail personally addressed envelopes containing informational brochures about subscribing to PLN, copies of a catalog of books that PLN offers for sale, detailed book offers, and court opinions. The Jail rejected and returned the mail, totaling forty-five pieces of mail. On forty of the returned items, the Jail staff stamped “RETURN TO SENDER This facility accepts postcards only.” On three items Jail staff stamped “Returned to Sender REASON CHECKED BELOW” with “Unauthorized Mail” checked or circled. On two of the items, Jail staff stamped both “RETURN TO SENDER (Continued on next page)

Lake Legal News Feb. 2015

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(Continued from previous page)

This facility accepts postcards only” and “Returned to Sender REASON CHECKED BELOW” with “Unauthorized Mail” circled; and, on one of these double stamped items, Jail staff additionally stamped “RETURN TO SENDER. UNDELIVERABLE AS ADDRESSED.” The Jail also... rejects mail sent from family members and friends if not in postcard form. * * * Finally, PLN has framed its argument to address the allegedly overbroad nature of the mail policy's postcardonly restriction and lack of procedural due process safeguards while presenting specific alleged effects of the policy on prisoners and their correspondents in addition to the effect on PLN alone. PLN has demonstrated advocacy on behalf of prisoners and their other correspondents; and has demonstrated that it is able to represent adequately prisoners and their correspondents' interests in this litigation. Therefore, PLN has standing to assert the rights of the prisoners and other potential senders and recipients of prison mail. * * * The postcard-only policy, on its face, prevents PLN from sending materials that are not easily transferable to a postcard, such as court opinions and informational packets. PLN has shown that the information included in these mailings cannot be formatted to fit onto a postcard. For this reason and due to PLN's necessary reliance on such materials to secure new subscribers and its continued vitality, the 12

Lake Legal News Feb. 2015

barriers implicated by the policy are not an insubstantial hardship. * * * The postcard-only policy drastically reduces prisoners' and other correspondents' ability to communicate. It is more than a mere inconvenience and becomes a substantial barrier to First Amendment rights. Incarceration does not “form a barrier separating prison inmates [or free citizens] from the protections of the Constitution . . . . ” * * * Defendants state that the postcardonly policy reduces by half the time that staff members spend screening mail, but PLN aptly raises important questions concerning the actual amount of time that is saved. PLN questions the methods by which this figure was obtained. Also, PLN contends that the time necessary to review the mailing, mark the reason for its rejection, and attach a notice regarding an option to appeal the decision arguably would be no greater than the time necessary to open and inspect the contents of the envelope for contraband and send it on to the intended recipient. Defendants' assertion regarding the impact on its budget is simply not well documented. * * * Therefore, the Court preliminarily enjoins defendants from restricting incoming and outgoing prisoner mail to postcards only, and orders defendants not to refuse to deliver or process prisoner personal mail on the ground that it is in a form other than a postcard.


Here locally, according to both Chief Deputy Peyton Grinell and Major David Mass, of the Lake County Sheriff's Office, word spread some months ago through law enforcement channels regarding ‘postcard-only litigation,’ and the handwriting was more or less on the wall for jails and other penal institutions across the country. As noted at the outset of this article, the Lake County Detention Center no longer tries to impose an unconstitutional postcard-only restriction on mail sent to or from jail inmates. Remarkably, however, just as one fire burns down another wooded front seems ready to ignite: So-called “advertisement” mail. Currently, the Lake County Detention Center rejects attorney advertisements which have been reviewed in advance and approved by The Florida Bar, and which bear on the outer envelope in conspicuous red ink—as mandated by Bar Rules—

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the word “advertisement.” The rationale for this prohibition, according to attorney David Porter (Sheriff Gary S. Borders' general counsel), is that to allow such correspondence from an attorney to a potential client would necessitate an increase from the two persons who currently open the jail's mail, to more. (As if this would strain a multi-million dollar budget, or even go beyond a call for a civilian volunteer or two to assist with a hypothetically feared ‘onslaught’ of attorney-letters.) Given the fact that PLN has been found to have a legitimate, protectable First Amendment interest in mailing inmates “personally addressed envelopes containing informational brochures about subscribing... [and] copies of a catalog of books that PLN offers for sale,” it will be interesting to see whether Lake County can fend off similar constitutional challenges regarding Barapproved attorney correspondences. 

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PHOTO: Provided

The milton chronicles

LAKE LEGAL NEWS EDITOR'S PROLOGUE: Now-retired Judge William A. “Bill” Milton Jr. [standing, top left, above] began his two-dozen years on the bench in 1961, when he became county and juvenile judge of Lake County, Florida. As one may expect, times were different back then: Reading through Judge Milton's extensive collection of newspaper clippings and other historic memorabilia reveals, for example, the time he sentenced two parents convicted of child neglect to serve one-year of hard labor, each. (On the other hand, paying a mere $25 back in 1966 could act as a ‘swap’ for 10 days in jail.) Before his career as a jurist finally concluded, Judge Milton had ably handled a remarkable 8,633 cases involving children, and he remains to this day a man who is considered by all who know him to be gentle, kind, and giving.

Teaser p. 16 ... story p. 18 ... Lake Legal News Feb. 2015

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PHOTOS: Provided

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the milton chronicles

I

've known Bill Milton virtually all of my life. In reality, it was probably in the early 1960s that I first met him. I was a 16-year-old high school student in Umatilla, Florida, and served as president of the Key Club, a Kiwanis International high school program. Judge Milton and my father were friends and Kiwanis Club members, where I visited them at their weekly meetings, on numerous occasions.

Writer: Howard H. “Skip” Babb Jr., J.D.

Stetson Law School, just to mention a few.

The one I vividly remember was Attorney General Jim Smith. Smith graduated from Stetson Law about the same time as Mort Aulls, Judge “Buddy” Aulls' little brother. Mort introduced me to Smith I appeared in Judge Milton's court on a at a conference once saying, “This is not regular basis as a young lawyer after the real Jim Smith,” at which point Smith becoming a member of the Florida Bar. replied, “Yes, I am the real Jim Smith.” I'm probably one of the very few lawyers that appeared in his courtroom not only But on the occasion of our Monday noon as a lawyer, but also once as a defendant Law Day luncheon, where some 150 or in a juvenile case. (There are rumors that so people showed up, it was raining in there are others, but no one is talking.) Tallahassee. They advised us over the telephone that Smith could not get his Driving too fast and passing on a curve on State plane off the ground and would be a Sunday afternoon in the mid-60s, hurry- a no-show. (Play ‘thunder’ sound here.) ing to return home to ride to the Baptist So the solution to the predicament was Church with my parents, is what landed in to fax Smith's speech to us to be read by me in Milton's court. I will never forget the either the Chairman of the Law Day Comlooks on my parent's faces as they rode mittee (Judge Milton), or someone else. by seeing me in the highway patrolman's Well, that ‘someone else’ turned out to vehicle and their car right in front. (My par- be me—and it was one of the most stressents never stopped.) When my dad and I ful and humiliating Mondays that I've ever walked up to the Bench at the courthouse, spent. The Attorney General's speech was Judge Milton was shaking his head in dis- ripe with death penalty support rhetobelief. The experience was memorable. I ric being read by a Public Defender with imagine he threw the book at me, and I numerous death penalty cases pending never went back to court in that capacity. (and many, many clients on death row). I remember going off-script many times Judge Milton served as the chair of the Lake with ‘disclaimers’ of content as I muddled County Bar Law Day Committee for over through the text. And thank you, the 36 years. As a lawyer and Kiwanian, I was “real” Jim Smith. Law Day, early 1980s. asked to help him during some of that time to bring speakers to Umatilla each year All of the photos included in this Lake for the Law Day celebration. We had many Legal News chronicle came from Judge fine speakers; including Justice Ervin from Milton's numerous file folders of memothe Florida Supreme Court and the Dean of rabilia amassed over the last 50 years. 18

Lake Legal News Feb. 2015


During that time, I've appeared many times in the courthouses of our circuit, as a prosecutor and as a defense lawyer and as Public Defender. In the 1975 picture of the judges honoring Justice Ervin from the Supreme Court, I appeared in 5 of those judges' courtrooms. Jack Drawdy [bottom photo, p. 17, far left] was the county judge in Sumter County. As a prosecutor, I tried cases against defendants who didn't have a lawyer. Judge Drawdy would do his best to protect the poor soul during the trial from the “wrath of the State.” I would sometimes object to the questions asked by the court in front of the jury and Judge Drawdy would sustain the objections I made to his own questions. Next to Judge Drawdy is Judge Clyde Trammel [bottom photo, p. 17, second from left], long-time county judge in Marion County. He was my first full-time judge when State Attorney Gordon Oldham sent me off to Ocala to run a docket in county court. Judge Trammel would get very frustrated with defense lawyers and often held them in contempt, then withdraw that ruling when the jury returned with a “Not Guilty” verdict.

courtroom. It was always entertaining. Judge John McCormick [bottom photo, p. 16, far right] was a circuit judge and former prosecutor during those times. His office and courtroom (as was Milton's) was in the building that now serves as the Lake County Historical Museum—also known as ‘Lake County Courthouse number one.’ Another photo from the “Milton Chronicles” shows Judge Hall [photo, p. 15, seated in middle] presiding over a formal court function photo opportunity and includes Judge Aulls [top left] and Judge John Booth, [seated second from the left]. I represented a thief in Judge Aulls' court early in my career, who was being sentenced for stealing copper to sell to feed his family. I paraded the poor family in front of the court and made an impassioned plea for probation. Judge Aulls sent him to jail for a year. I was flabbergasted and was about to lash out at the absurdity of the sentence when I had a vision-from-onhigh that maybe I should hold my tongue and just be satisfied with the court's ruling. Judge Aulls told me later that I had

see the photo prelude Wallace Sturgis [bottom photo, p. 17, second from right] was the circuit judge in Marion County. In 1980, while running for circuit-wide office, I worked with Judge Sturgis handling mental health cases in a makeshift courtroom at the hospital—sometimes close to midnight, once a week. Judge Sturgis was full of stories about his experiences on the bench, and whenever a speaker would fail to show at the monthly Bar meeting they would ask him to fill in with stories of what he had been doing his last few weeks in his

pp. 14-17...

done a yeoman's job and he had intended to sentence my client to three years in jail—but cut the sentence due to my persuasion. He added, however, that had I said anything about the sentence itself, he would have sent me to jail with the client for a short period of time. Lesson learned. Judge Booth was a circuit judge sitting in Bushnell, Florida, in my early days as a lawyer. I was in court once with Judge Booth in the old Busnell courthouse's main court—which is still my favorite courtLake Legal News Feb. 2015

19


room in our judicial circuit. A prisoner tried to escape during a court appearance and ran out of the courtroom and down some stairs in the rear of the building. We heard gunfire and all of us hit the floor, including the judge, who we learned later was armed and prepared for just such an occasion. (I ended up under the counsel table, being the brave soul that I am.) The prisoner survived but ended up with another charge of escape, which sentence would be served consecutively.

and on my way up to the bench I sensed that something was terribly awry and that the judge was blaming me. Come to find out, the pleadings in the style of the case erroneously and improperly referred to the judge as if he were President Abraham Lincoln's assassinator; it read, “John Wilkes Booth, III ” instead of simply, “John W. Booth,” as it should have been. I apologized profusely and promised an immediate correction, and pled my own case of ‘lack of knowledge.’ The crisis was averted. And so now, you at least have a few stoOne of my first serious case assignments ries from the vast “Milton Chronicles.”  as Public Defender was a case involving the death of a law enforcement officer— always the hardest of all the cases heard Like us? Check us at the Bar. We were seeking relief from out on Facebook! a death sentence and had received briefing help from an out of state appellate specialist. Immediately upon taking the LAKE LEGAL NEWS bench Judge Booth asked me to approach,

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BONUS! Judge milton recalls ... “Beginning in July, 1965 (and for 35 years thereafter) I was chair of the annual Law Day USA program for the 9th Division, Florida Kiwanis and the Lake County Bar Association. I ended my leadership role after the James W. Durden Memorial Law Day Program in May, 2000. (The Lake County Bar Association hosted a similar program in 2014.) I was extremely proud of that program in 2000—which honored my his old and dear friend, James W. Durden.”

t

“One of the most successful Umatilla Law Day programs that I ever chaired was this one in 1985, honoring 50-year members of the Florida Bar. We had 140 members of the judiciary, Bar and Kiwanis in attendance, and had to send out for more tables, chairs and food at the last minute. These were five of the greatest lawyers that I have ever known, and they easily could have taught civility to new lawyers today.”

t

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PHOTOS: Provided

“I recall many stories that Justice Roberts and Governor Warren told at this dinner in 1962. Some years later I remarked to Justice Roberts that I remembered that evening very well, because there was a severe freeze that destroyed much of the citrus in the area. Justice Roberts responded, “Well, brother Milton, I hope that sometime in the future I will be remembered for something other than bringing a killer freeze to Lake County.” Lake Legal News Feb. 2015

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Civil Blotter

● In Appel v. Bard, 40 Fla. L. Weekly, D238a (Fla. App. 4th Dist., January 21, 2015), the appellate court held that the trial court departed from the essential requirements of law by ordering Appel to respond to deposition questions regarding whether he filed tax returns for years 2005-2010; moreover, “[w]e disagree with [the] contention that because the IRS is already aware of [Appel's] filing status he should be compelled to answer.”

© iStockphoto.com / James Benet

When presented with a Fifth Amendment privilege objection, the court “must exercise its discretion and determine whether it is reasonably possible that answers to either interrogatories or deposition questions could evoke a response ‘forming a link in the chain of evidence which might lead to criminal prosecution.'” DeLisi v. Bankers Ins. Co., 436 So. 2d 1099, 1101 (Fla. 4th DCA 1983) (quoting DeLisi, 423 So. 2d at 938).

Criminal Blotter 22

Lake Legal News Feb. 2015

A witness is generally entitled to invoke the Fifth Amendment privilege against self-incrimination whenever there is a realistic possibility that his answer to a question can be used in any way to convict him of a crime. It need not be probable that a criminal prosecution will be brought or

● Because circumstantial evidence cases often rely upon fingerprints, rather than eye-witness, the case of L.A.R. v. State, 40 Fla. L. Weekly, D219a (Fla. App. 2nd Dist., January 16, 2015), may be of interest: L.A.R. contends that the trial court erred in denying his motion for dismissal because the fingerprint evidence was insufficient to establish that he committed [burglary of a conveyance]. We agree. Since the only evidence implicating L.A.R. [in burglary of a conveyance] were his fingerprints found on a bag containing a newspaper that was left in the vehicle by someone other than the victim and the State failed to show that the fingerprints could only have been made at the time of the crime, reversal is appropriate. See Hill v. State, 973 So. 2d 655, 656 (Fla. 2d DCA 2008) (reversing

that the witness's answer will be introduced in a later prosecution; the witness need only show a realistic possibility that his answer will be used against him. Moreover, the Fifth Amendment forbids not only the compulsion of testimony that would itself be admissible in a criminal prosecution, but also the compulsion of testimony, whether or not itself admissible, that may aid in the development of other incriminating evidence that can be used at trial. See Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951). The privilege is inapplicable only “if the testimony sought cannot possibly be used as a basis for, or in aid of, a criminal prosecution against the witness.” Brown v. Walker, 161 U.S. 591, 597, 16 S.Ct. 644, 647, 40 L.Ed. 819 (1896). Pillsbury Co. v. U.S. 248, 267

Conboy, 459 n.1 (1983).

● In Laserinko v. Gerhardt, et al., 40 Fla. L. Weekly, D214b (Fla. App. 5th Dist., January 16, 2015), a final judgment of injunction for

burglary conviction where “the only evidence implicating [the appellant] were the fingerprints, and the State failed to show that the prints could only have been made at the time of the crime”); Seneca v. State, 760 So. 2d 995, 995-6 (Fla. 4th DCA 2000) (holding that “where the only evidence linking appellant to the burglary were his fingerprints on a car battery apparently thrown through the window of the burgled structure” and “the state failed to prove that the fingerprints could only have been made at the time the crime was committed, the trial court erred in denying the motion for judgment of acquittal”); Shores v. State, 756 So. 2d 114, 115-16 (Fla. 4th DCA 2000) (holding that where “[t]he only evidence linking [the appellant] to the burglary was one of his fingerprints on a box of ammunition in a drawer which had


protection against stalking was overturned: Laserinko and Gerhardt reacquainted through social media after some 20 years. In early January 2014, Laserinko emailed Gerhardt, expressing a desire that their relationship become more than just a friendship. Gerhardt emailed back, indicating that he was a great friend, but that she did not consider Laserinko in a romantic way. Laserinko then sent two e-mails, one apologizing for making things awkward and the second to explain why he thought, based upon their interactions, that the relationship had been developing into more than just a friendship. Gerhardt responded the following day by e-mail, stating that this was a “lot to digest,” she needed “some space,” to stop “putting this all on her,” and that she would be back in touch with him. On February 1, 2014, On February 1, 2014, Gerhardt attended a concert at Sea World with a friend and his daughters. Laserinko separately attended the same concert with his mother and others. Laserinko saw Gerhardt but did not approach her. She did not see him. There was no competent evidence at trial that La-

been ransacked by the burglar,” the evidence was insufficient to sustain a conviction because the ammunition box was accessible to the public at the sporting goods store before being purchased there by the victim). ● One is sometimes left to wonder what prosecutors are actually taught at ‘prosecutor school,’ in light of cases such as this: In rebuttal, the prosecutor responded to the “lack of evidence” argument as follows: You didn't really expect the other police officer's testimony would have been any different than what you've already heard? * * * Do you expect that testimony

serinko knew Gerhardt would be at the concert. On February 3, 2014, and then on February 10, 2014, Laserinko sent two innocuous e-mails, wishing Gerhardt and her son a “good morning.” Two days before Valentine's Day, Laserinko sent Gerhardt and her son Valentine's Day cards and also sent her a box that contained a small stuffed teddy bear, chocolates, and a compact disc (“CD”). Gerhardt did not respond. Thereafter, on March 11, 2014, Laserinko e-mailed Gerhardt, asking that she contact him, reminding her that in her January e-mail to him, she had indicated that she would call him. Five days later, Laserinko again e-mailed, apologizing for his efforts to make their relationship more than just friends and expressing hope that they could go back to the way they were. On April 20, 2014, Laserinko emailed Gerhardt wishing her and her son a happy Easter. Two days later, on April 22, 2014, Laserinko e-mailed Gerhardt a two-and-one-half page letter, which, due to its tone, prompted Gerhardt to e-mail Laserinko the next day, directing him to stop having any further contact with her and advising that if he failed to do so, she would contact law enforcement. Ger-

to be any different? Of course not. I have too much respect for your time to waste your time to call ten people to tell you the exact thing over and over again. Defense counsel's objection to both statements was overruled. * * * A time-honored defense argument in a criminal case is the lack of evidence, with one source of the deficiency being missing witnesses. A prosecutor cannot respond to this argument by suggesting “during closing argument that there are other witnesses who would corroborate the state's case had they been called to testify.” Hazelwood v. State, 658 So. 2d 1241, 1244 (Fla. 4th DCA 1995) (citation

hardt's petition for injunction for protection against stalking followed... * * * In determining whether each incident of harassment causing “substantial emotional distress” has been established to support a finding of stalking, “courts use a reasonable person standard, not a subjective standard.” [Citations omitted.] We have no trouble concluding that the April 22, 2014 e-mail from Laserinko to Gerhardt would cause a reasonable person to suffer the “substantial emotional distress” required by section 784.048. However, based upon our careful review of the record, we conclude that none of the other contacts from Laserinko during this approximate four-month period [footnote omitted] were such that a reasonable person would have suffered “substantial emotional distress.” Accordingly, due to the lack of competent, substantial evidence to establish the requisite second incident to support the issuance of a final judgment of injunction for protection against stalking, we reverse and remand with instructions to dismiss Gerhardt's petition. 

omitted); see also Tillman v. State, 647 So. 2d 1015, 1015-16 (Fla. 4th DCA 1994); Landry v. State, 620 So. 2d 1099, 1102 (Fla. 4th DCA 1993). We wrote in Williams v. State, 548 So. 2d 898 (Fla. 4th DCA 1989), that [t]he rule is well established that it is perfectly permissible for the defense to comment on the paucity of incriminating evidence adduced by the state, and the state is entitled to respond. However, the response cannot suggest there are other witnesses who would corroborate the state's case had they been called to testify. [Citations omitted.] * * * The trial court abused its discretion. [Reversed and remanded.]  Lake Legal News Feb. 2015

23


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No Longer Tinkering With

The Machinery

I

n one sudden, unexpected jolt, I found my mind running to the 1994 words of U.S. Supreme Court Justice Harry Blackmun who famously expressed himself by saying, “[f]rom this day forward, I no longer shall tinker with the machinery of death.” Of course, a little background information is necessary to understand what prompted my thoughts.

an assistant state attorney) I played some small role in opposing Hildwin's post-conviction relief efforts. Ask me today what I did in behalf of the State of Florida and I couldn't tell you—other than to assume the obvious—that I helped to keep Hildwin on death row. (I have somewhat better recall for my post-conviction prosecution work in Daniel Remeta's case—executed by electrocution in 1998—and my postJust last summer the Florida Supreme conviction work in Ian Lightbourne's Court ordered a new trial for Paul Chris- case, who has been housed on Florida's topher Hildwin, who has been sitting as a death row for more than 30 years now.) man condemned to die for more than 25 years. Many years ago (during my time as Keep in mind that it was only by reading

[f]rom this day forward, I no longer shall tinker with the machinery of death.

Justice Harry Blackmun

30

Lake Legal News Feb. 2015


of Death

by James Hope, J.D.

was premised on the trial prosecutor's affirmative use of this patently false scientific evidence. Hence the new trial. The Hildwin murder case involved a female victim who was found naked in the trunk of her car, apparently having been raped and choked to death. At his trial, Hildwin testified that the victim and her boyfriend (a man named Haverty) gave him a ride, and that during the course of the ride the couple began to fight. Hildwin testified that the couple exited the car and that the last time he (Hildwin) saw the victim, Haverty had his hands around her neck, choking

Š Thinkstock.com / Elenarts

ART: Thinkstock / Elenarts

the most recent opinion (Hildwin v. State, 141 So.3d 1178 (Fla. 2014)) that any of the facts surrounding the murder began to even faintly trigger my memory. To this moment I am as far away as the next person from knowing whether Hildwin is truth-in-fact guilty of a crime. But what does cut like a hot knife through Hildwin's case is the fact—now forcefully demonstrated in the written opinion overturning Hildwin's conviction and granting an entirely new trial—that Hildwin's jury was lured to its unanimous verdict by means of impugned science. Worse, actually. Hildwin's first degree murder conviction

{Part One}

Lake Legal News Feb. 2015

31


her. (Hildwin testified he was unsuccessful in separating the couple and so he fled.) Significantly, in a statement to law enforcement Hildwin said that he saw the murderer wipe his head on a “white rag” (also referred to during the trial as a “washcloth”) which Hidwin said the killer threw to the ground after he had choked the victim. As to any evidence of rape, Hildwin's defense theory was that the victim may have had consensual sex with a man other than Haverty—presumably sparking the couple's deadly argument. Indeed, Haverty testified at trial that the victim had gone out with other men while he and the victim were living together, and that he “didn't like it a whole lot.” Moreover: [T]he State heavily relied on the scientific evidence at trial that pointed to Hildwin as the person who murdered the victim and also excluded Haverty, the person that Hildwin alleged was the actual murderer. The State presented evidence at trial that the victim was found naked in the trunk of her car, with her T-shirt tied around her neck, her blue jean shorts and underwear missing, and her torn bra and shoes found in the woods. A pair of blue jean shorts, with underwear inside of them, was found on the top of a bag of dirty laundry inside the victim's car. Near the shorts and underwear was a white washcloth. The State presented evidence pertaining both to the biological material on the underwear that the victim likely wore on the day she disappeared and to the biological material on a white washcloth found in the same location. Specifically, the scientific testing revealed that both the semen on the underwear and the saliva on the washcloth belonged to a nonsecretor—a subgroup of the population to which only eleven percent of the overall male population belonged. 32

Lake Legal News Feb. 2015

In addition, the State further presented evidence that the victim's live-in boyfriend, Haverty, could not have been the producer of the biological material found on these items because he was a secretor. Hildwin, however, was a nonsecretor, which matched the State's theory of the case and discredited Hildwin's. * * * In closing argument, after introducing the scientific evidence to point to Hildwin as the source of the semen, the State argued: What's interesting about that is that on these panties that were found—these panties were found in the car on top of the laundry, Sergeant Haygood testified to, not in the laundry, on top of the laundry. These panties contained semen that is consistent with the non-secretor 11 percent of the white male population, consistent with the defendant in this case and not consistent with Bill Haverty. This wash rag had saliva from a non-secretor consistent with Paul Hildwin, the defendant, not consistent with Bill Haverty. * * * Now, these two pieces of evidence, ladies and gentlemen, I'm not asking you in any way, shape, or form to convict the defendant, Paul Hildwin, based on those panties and that wash rag. What I am telling you is that it is one more block. It is one more piece of evidence that leads to Paul Hildwin, and it is one more piece of evidence that eliminates Bill Haverty. While that 11 percent of the population are non-secretors, remember it would have to be a non-secretor like the defendant in the same place at the same time with the same opportunity to be the same because it makes those odds look high for


someone other than the defendant.

win's conviction [with emphasis added]:

In considering the strong circumstantial evidence (as buttressed by compelling science), what could possibly be the problem with Hildwin's first degree murder conviction? It is the fact that the scientific evidence presented to the jury was the diametrical opposite of the truth. Recall that the prosecution told the jury that Hildwin was part of a small fraction (just 11 percent) of the white male population who are non-secretors—forensically tying Hildwin (and not Haverty) to the underwear and wash rag. And yet, as the Florida Supreme Court's decision now succinctly explains: “[T]he newly discovered DNA evidence now establishing Haverty as the source of the semen and saliva would have supported Hildwin's testimony that Haverty killed the victim during an argument over her seeing other men.” [Emphasis added.]

Based on the fact that this case rested on circumstantial evidence that relied on now-entirely discredited and unreliable scientific evidence, which now identifies Haverty as the donor of the biological material found on items at the crime scene, the newly discovered evidence identifying the donor of the DNA left on these items changes the entire character of the case originally presented to the jury, particularly in light of the fact that additional evidence discovered in postconviction proceedings casts further doubt on Hildwin's guilt. In reviewing the evidence in this case, we conclude that the cumulative effect of the newly discovered evidence weakens the case against Hildwin to such an extent that it gives rise to a reasonable doubt as to his culpability.

Not to go unmentioned is the fact that in addition to de-bunking the foundational scientific aspects of the prosecution's case, other newly-discovered facts came to light regarding Haverty during post-conviction proceedings. For example: Haverty testified that the victim left around 9 a.m. on September 9 to wash clothes; however he did not report her missing until the victim's sister arrived in town on September 13 looking for her. Moreover, post-conviction evidence came to light that Haverty acted suspiciously when he helped to file the missing person's report. (In fact, law enforcement found a note from the home the couple shared wherein Haverty had written to the victim, “[Expletive] off and die”—a piece of evidence that supported Hildwin's story that the couple was fighting at the time that the victim disappeared.) Additionally, the victim's nephew also provided a postconviction statement that corroborated that there was a rift between the couple.

For all the reasons set forth in this opinion, we vacate Hildwin's conviction for first-degree murder, vacate the sentence of death, and remand for a new trial.

All of this considered—with Hildwin's murder conviction having been upheld for more than a quarter of a century (at least, that is, until June of last year)—and me having played some modicum role as a prosecutor in a tragically flawed process—it should now be little wonder why I began this article as I did: “In one sudden, unexpected jolt, I found my mind running to the 1994 words of U.S. Supreme Court Justice Harry Blackmun who famously expressed himself by saying, ‘[f]rom this day forward, I no longer shall tinker with the machinery of death.’ ” I certainly cannot say that Paul Christopher Hildwin is not a murderer; but I certainly can say (with regard to his conviction) that confidence in the outcome has been shaken In all, it is far from surprising that the and doubts that a reasonable person majority opinion in Hildwin's case con- could reasonably maintain do exist.  cludes this way in overturning HildLake Legal News Feb. 2015

33


No Longer Tinkering With

The Machinery

I

n 1989, Leo Schofield Jr. stood at a defense table in the Polk County Courthouse with a bad haircut, wearing one of the two oversized suits he had borrowed from his father. At 24 years of age he faced the death penalty in the brutal stabbing of his eighteen-yearold wife, Michelle. Standing next to him was his defense counsel, Jack Edmund, a seasoned and overly confident attorney who did no pretrial preparation; Edmund told Schofield not to worry, the case was a “no brainer.” Had Schofield retained adequate counsel there might not have been a reason to worry. There were no

eyewitnesses to the crime, and the prosecution had no physical evidence. Zero. So, when the jury foreman read the decision, “Guilty as charged,” Schofield was stunned. During sentencing he said, “I am telling you, you are making a mistake, a big mistake. I'm not guilty, I didn't kill my wife. I can prove it to you. I don't even know what to say to you. I really don't.” For Schofield, it had been a two week judicial ordeal that he says seemed surreal. He didn't know at the time it was only the beginning of a decades-long nightmare. Schofield narrowly avoided the death

If wrongful convictions continue, at some point in the system is fair and whether the judgments The Innocence Commission,

34

Lake Legal News Feb. 2015


of Death He explains that he and his wife Michelle were married less than a year the morning she took the couple's 1981 orange Mazda to her job at Tom's Restaurant in Lakeland,

by Mary Ellen Griffith

Florida. Michelle didn't have her license, so he was already wary about her taking the car. He admits to being more annoyed than worried when he didn't hear from her until 90 minutes after her shift ended. But she called, and he got over it. “She told me she had put gas in the car, and gone home to fold laundry, feed the dogs, and let them out. I was cool with that.” They made arrangements to meet at a friend's house where she would pick him up. They planned to go grab a bite to eat at McDonald's, then visit Schofield's parents who were packing to move back up

time it will cause the citizens to wonder whether of our juries and courts should be respected. convened by the Florida Supreme Court, 2012

Lake Legal News Feb. 2015

ART: Thinkstock / Elenarts

penalty. Twenty-seven years after the guilty verdict he recounted his story to me from across a wooden partition in the visitor's room at Hardee Correctional Institute. He sported a prison blue uniform—the only clothes he has worn for more than half his life. Many of his friends have gone on to marry, have children, and some grandchildren, while Schofield remains in an indeterminate state.

{Part Two}

35


North. Schofield claims he and Michelle both said “I love you” and hung up. That was around 9:45 p.m. At 11:00 p.m. Michelle still hadn't shown. By midnight, he started to worry. In hindsight he says, “When I think about it, there was no reason for her not to show. I am telling you something had to have happened within fifteen minutes after she made that call, or she would have been there.” That was February 24, 1987. It was the last time Schofield would ever hear from his wife. February of 1987 was a chaotic time for Polk County law enforcement. Sheriff Dan Daniels had resigned during a grand jury investigation into his questionable hiring practices and misuse use of funding. While Daniels and State Attorney Jerry Hill continued to spar back and forth over the matter via local papers, newly appointed Sheriff Lawrence Crow began damage control. He fired 21 people and reassigned many others. The most significant reform came when he combined the special investigations and criminal investigations units, (a restructuring that may have substantially impacted the investigation into Michelle's murder). Crow announced the changes in a press conference the day Michelle Schofield's body was found in a Lakeland canal off of Old Combee Road. She was face down in the water, a board strategically placed over her back to keep her from floating to the surface. It was a brutal crime scene. Michelle's blood soaked jacket was on the ground just feet from the canal. Blood was cast everywhere, there were splatters and small puddles of blood along the grass and path leading to the water. Yet investigators would later end up identifying the couple's trailer—where their own investigators could not conclusively establish that there was any human blood— as the site of the murders. Tire tracks and foot prints were clearly discernible, but no casts were taken. Strands of hair found on Michelle, and also stuck in the rear panel molding of the Mazda were never tested. 36

Lake Legal News Feb. 2015

Neither were fingerprints or the minute amount blood also found in the car. All parties agreed the clothes Schofield wore that night were in evidence. No blood was found on them either. In spite of all the indications to the contrary, investigators still insisted that Schofield killed his wife and she was murdered in their trailer. To exacerbate the questionable nature of the investigation, there is record of a document dated November 12, 1987, addressed to “Det. Robert A. Weeks” which lists the exhibits in the case. Under the heading “Disposition” it says, “Based on information from your agency the examination of this case is no longer necessary and the exhibits are being returned.” Thus, if there was any evidence that could have supported Schofield's innocence, it wasn't tested. No one would know—until more than a decade later— that fingerprints belonged to a convicted felon who lived one mile from the canal. What authorities lacked in physical evidence they tried to make up for with circumstantial evidence. For sixteen months, Detective Robert Weeks, Detective Richard Putnell, and State Attorney John Aguero questioned as many individuals they could find who knew Schofield. A friend of Schofield's, David Collins, complained that Weeks didn't just question friends and family, but he was dropping hints that police had “evidence” that Schofield had committed the murder. Collins said the same “friends” comforting Schofield after Michelle's death would buy the authorities' implications and eventually turn on him. He says it only took one person to believe Weeks, and soon “they all got on the band wagon… they gossiped and talked among themselves.” The Honorable Scott Cupp, who would assist with some of Schofield's later appeals, was interviewed, prior to taking a seat as County judge in Hendry County. “It is clear from a cursory view of the trial transcript that the theme was to find as


many civilian witnesses to destroy Leo's he took the advice of his fellow prisoners character, and hope the jury ignored the and contacted the office of Jack Edmund. fact that there was zero physical evidence pointing toward Leo as the killer—zero.” Edmund came highly recommended and had a reputation for presenting a strong Regardless of a lack of evidence, eighteen defense. A 1988 Orlando Sentinel article months after the murder Schofield was extolled Edmund's “out of the ordinary” arrested. He had moved back to his parents tactics and quoted him saying he rarely Massachusetts home to recover from a car took depositions. He insisted they enabled accident—the fault of the other driver. the State to better its case—something Assistant District Attorney John Aguero he wished to avoid. He preferred “a trial and Detective Robert Weeks had flown by ambush in which the state itself is there with the intention of extraditing surprised.” Even the prosecutor in the Schofield to Florida. Schofield immediately Schofield case, John Aguero, appreciated conceded to turn himself in and both par- Edmund's accomplishments: “Jack Edmund ties agreed to meet at his father's attor- is truly one of the best trial lawyers I ever ney's office. However, Aguero and Weeks met. He could prepare in a short amount would enlist a swat team to surround the of time… he knew everything that was in building and take Schofield into custody. every police report, and he could charm a jury faster than any man I ever saw.” The morning of the extradition hearing, the judge presiding let Schofield know he But to some, his “ambush” strategy was had no obligation to return with Aguero more like sloppy litigation. Marshall Frank, and Weeks since they had no indict- a fiction writer and former homicide ment. But Schofield says he wanted to detective, was in the process of researchface the charges and get it over with. ing the case of Kenneth Duckett, a police He firmly believed they would have to officer in Mascotte, Florida, who is curlet him go once they learned there was rently on death row for the rape and murno way he could have, or would have, der of a twelve-year-old girl. In 2003, the killed his wife. But on the return flight Lakeland Ledger interviewed Frank about to Florida, Schofield noticed Aguero the appeal in the Duckett case. When was wearing a tie clip—it was engraved asked about Edmund, he said, “He winged with an electric-chair. Schofield looked it… sometimes I thought Jack Edmund down and shook his head at the irony, was working for the other side.” Further“That was when I knew I was in trouble.” more, when referring to Edmund, the Sentinel quoted one prosecutor as saying, After their arrival, Aguero and Weeks “I have no respect for his tactics at all.” “…roughed me up pretty decent.” It sounded to Schofield like they were Edmund sent private investigator Bob trying to get him to say his father was Nipper to meet with Schofield at the involved in the crime. “You can believe Polk County Jail. Nipper said if Schofield this: If they were trying to scare me, it agreed to hire Edmund to sue the other worked, and if I had something to give driver in the July 1987 auto accident, them, I would have,” Schofield states. Schofield could use those proceeds to pay for Edmund to defend him in the For nine months, Schofield sat in jail, murder case. Additionally, Nipper said scared of what was on the horizon, with if he signed the retainer right then and little contact or information from his pub- there, he would have him bailed out by lic defender. Inmates warned him about the weekend. Schofield signed. Nipper the risks of having a so-called “Public never showed to bail him out. Edmund Pretender” in a capital murder case, so filed an alibi defense and Schofield sat in Lake Legal News Feb. 2015

37


jail another six months with no word from Edmund or Nipper. “Had I stayed with the public defender's office, I wouldn't be sitting here today,” recounted Schofield. Schofield met Edmund for the first time when he showed up at the County jail the night before the trial. He brought with him a yellow legal pad, and a pack of Camels—a gift for Schofield. He sported a gray goatee, wore cowboy boots, and smoked incessantly. That was when he told Schofield the case was a “no brainer.” Except, in this case, it apparently wasn't. Jack Edmund would miss even the most rudimentary maneuvers. The prosecution presented witness after witness in an attempt to assassinate Schofield's character, but none of them could claim any actual knowledge of the murder. Nevertheless, Edmund rarely objected. The State was allowed to paint Schofield as wild and violent. Neighbors would testify they had seen Michelle scratch and slap Schofield and that he had, on more than one occasion, retaliated, pulling her hair and smacking her back. Ironically, according to the trial transcripts, not one witness stated they felt Michelle was in fear of Schofield, none of them claimed to ever have seen any bruising on Michelle, and not one of the witnesses ever contacted the police to report Schofield's alleged “attacks.” Scott Cupp confirmed that “much of the testimony should have been objected to in pretrial motions.” But Edmund didn't believe in pretrial motions. Collins, Schofield's band mate, was taken aback by the testimony as reported in the newspapers. He and his wife called it “silly.” As Collins viewed it, “Their testimony was just ridiculous.” Although Edmund called a few witnesses, such as Schofield's family, he never had Collins testify, nor any of Schofield's other friends who, like Collins, were willing to refute the State's witnesses' fabrications and exaggerations. The State's star witness, Alice Scott, claimed she saw Schofield carrying some38

Lake Legal News Feb. 2015

thing out to his car the night of Michelle's disappearance. Aguero was standing only a few feet in front of the witness stand when he asked her, “How far is the Schofield's trailer in relation to your bathroom window?” Scott did not hesitate to reply: “From me to you.” In fact, the Scott trailer was approximately 150 feet away from the Schofield's residence. Also, it was caddycorner and Scott's view was blocked by a line of trees. When Cupp, one of Schofield's post-conviction attorneys was asked if he believed Scott could see the Schofield trailer from her bathroom window he replied, “Sure, if she was a circus contortionist.” (Years after the trial, Scott's husband told the St. Pete Times that there was “no way Alice could have seen and heard...what she said she saw and heard.”) Additionally, during her testimony, Scott told the jury the medication she took for back pain was keeping her awake. She claimed that between 2:30 and 3:00 a.m. she saw Schofield carry something out to his car; however, David Saum, Michelle's own father, told police that Schofield showed up at his home between 2:20 and 2:30 a.m. He stated under oath that Schofield stayed for about fifteen minutes. Furthermore, records show that shortly thereafter, at 3:00 a.m., Schofield and his Mother had stopped by a gas station and reported to a police officer parked there that Michelle was missing. It would have been virtually impossible for Schofield to have been at the residence in accordance with Scott's testimony. Although Edmund addressed the timeline issue in his cross, he never bothered to question Alice Scott's credibility. In fact, she is referred to throughout the police reports in this case as a “confidential informant.” Given that when asked why Schofield had become a suspect, Detective Weeks answered, “Based on Mrs. Scott’s testimony,” it would have been significant information for the jury to consider in their decision. Had Edmund even scratched the surface of


this case, he could have discredited two of the police officers' testimony also. Florida authorities from Polk County and Hillsborough County testified at trial that there were no other murders in the area resembling that of Michelle's. In fact, there were six other brutal homicides in the months leading to Michelle's murder—all of them were within 35 miles of where Michelle's body was found, two in the same area. They were all young women between the ages of seventeen and twenty-eight. The facts of those slayings come eerily close to the circumstances surrounding Michelle's. (Oscar Bolin has been convicted of three of those murders and is currently incarcerated. The other three remain unsolved.) In a section of Edmund's closing argument, where he talks to the jury about the nature of Michelle's death, he seems about to address the other murders, but then digresses into a bizarre, off color monologue, “…maybe she was on an altar and they're stabbing her and killing her ritually. It has all the earmarks of a ritual killing…” In spite of all the rational areas of reasonable doubt, Edmund tried to convince the jury it was a satanic ritual. It is highly likely as a result of that rant, along with other numerous oversights, he lost. In Schofield's subsequent appeal for ineffective assistance of counsel, Edmund admitted that he “dropped the ball.” The reviewing judge, however, apparently disagreed. He said in his opinion that hindsight isn't always clear. He remarked that Edmund probably did a better job than he thought he did when looking back at the trial. Schofield, when addressing the judge's decision, remarked, “I thought hind-sight was 20/20.” In 1991, Schofield was assigned to assist a social worker, Crissie Carter, who worked teaching a job-skills class at Hendry Correctional Institute. They developed a friendship and through their correspondence Schofield began to unveil the series of events that led to his incarceration. To Cris-

sie it played out like a bad Frank Darabont flick. “He brought the case up to me in a letter. Before that I had never asked him what he was in for… I was sure he hadn't done anything that serious.” Carter began to look into his case, reading the police reports and appellate briefs. Carter states that not only was everything she found consistent with the story Schofield told, but the more she researched, the more she believed Schofield had been railroaded. Carter had a friend, Synda Williams, who worked for the Hendry County Sherriff's Department. Synda was married to Scott Cupp, a lawyer with experience as a prosecutor who was practicing as a defense attorney. Williams got Cupp to read Schofield's trial transcript. Initially cynical, Cupp told Carter “...I would only agree to look at the transcript and give her my opinion if she formally retained me. I viewed my purpose to be to tell her if I thought there was anything that legally could be done for him. Crissie was my client, not Leo; I fully expected that would be the end of it.” But it wasn't the end of it. The more Cupp read the more he became incensed. He was convinced Leo couldn't have done it and set out to help him. Most of the evidence was destroyed by the State, but Cupp noted “reports that talked about prints being recovered from the car that did not belong to Michelle, Leo, or his dad.” In one phone call, Cupp was able to get the prints from the FDLE lab in Tallahassee. Williams was captain in charge of investigations. Cupp gave her the fingerprints and Williams got them tested. He says, “How exactly she did it and what she said to whom I don't know. I only know she told me that a detective she was speaking to misunderstood her” and mistakenly submitted them. Regardless, the results were staggering. They belonged to a convicted felon, with a long history of violence, serving life for murder, Jeremy Scott (no relation to the State's star witness, Alice Scott). He lived only a mile and a half Lake Legal News Feb. 2015

39


from where Michelle's body was found. that “they” were “coming back with an arrest warrant” for him and they had In 2002, shortly after the prints were proof: Prints. He believed Aguero was discovered, Cupp was offered a job run- going to arrest him. Additionally, he ning the felony division in Lee County and thought if they charged him he would couldn't stay on Schofield's case. Cupp end up back on death row, and said to his recollects a conversation with Carter that grandmother, “I just talked to this Dude still bothers him today. “I remember tell- who works in the other library, right, ing her to give it six months… I told her explained the situation to him… He said if they are smart they can take credit for ‘they could charge you… take you to trial, righting the injustice, blah, blah, blah and find you guilty, they going to put you back if Leo's smart he'll let them take credit on death row and you won't come off.’” for it even though it's [expletive].” He recommended Crissie work with appeals Additionally, Aguero claimed in a subattorney Richard Barton. “I told her if sequent deposition transcript that there nothing happens in six months Richard was a Detective Giampavolo (Detective can start filing documents. Boy was I G.) present during his questioning of wrong. And it bothers me to this day.” Scott. In his deposition, Cupp asked “Do Sometime later, when Cupp left pros- you remember Detective G. being presecution for good, he immediately became ent?,” and Aguero answered, “I'm sure re-involved with the Schofield case. he was because he was the one that went and talked to him first, yeah. He ended up The original prosecutor, John Aguero, writing a report….” In that same report to caught wind that the prints belonged to which Aguero refers, Detective G. wrote, Jeremy Scott. The integrity of his sub- “On Friday, February 18, 2005, I met with sequent inquiry is similar to that of the ASA Aguero. ASA Aguero advised that he initial investigation—questionable. Pri- had Scott brought to his office while I marily, Cupp found his involvement dis- was on vacation.” Aguero met with Scott turbing: “In a completely circumstantial alone. There are no transcripts of this evidence murder case, fingerprint com- meeting and although Aguero claimed to parisons come back from inside the car of have taken notes, none were available. the murder victim and they come back not just to anyone, they match somebody like In 2011, with the help of the Innocence Jeremy Scott. [State Attorney] Jerry Hill Project, Bartmon and Cupp filed an appeal doesn't personally get involved, or even based on newly discovered evidence in look at anything in regards to the facts the Schofield case. In addition to the finof the case… this to me is inexcusable.” gerprints, they located a former girlfriend of Scott's, Jami Nelams. Nelams showed Aguero had Jeremy Scott brought back Judge Keith Spoto, her crooked jaw where to the Polk County jail. In a recent 2013 over a decade earlier Scott “…hit me in interview Aguero maintained that if the face with a baseball bat.” She testiScott murdered Michelle, he wanted fied that Scott would take her to the to know. Aguero stated he told Scott same canal where Michelle was found, he couldn't leave an innocent guy in and if she wouldn't have sex with him, prison if someone else had actually mur- he would choke her until she passed out. dered Michelle, and offered him a deal; however, that wasn't how Scott saw it. Jeremy Scott also testified at the same hearing. He claimed his fingerprints were In taped conversations Scott had with his probably found in the car because he used grandmother while at the Polk County to drive up and down the same stretch of Jail, he pleads for her help and stresses I-4 where Michelle's car was found. When 40

Lake Legal News Feb. 2015


he spotted an abandon car he would break into it and steal the stereo. Scott owned no car, nor did he have a license. Cupp prepared a motion to set bail. He was convinced they had enough evidence for Spoto to set aside the verdict. The opportunity never came. Spoto ruled against Schofield. He referred to Scott's prints being in the car as “serendipity.” He stated, “Mr. Scott may not be an entirely credible witness… but the Court found his explanation of why his fingerprints were found in the victim's car to be credible.” (Not that Spoto was a former prosecutor working in the same office as Aguero, prior to becoming a judge.) In the summer of 2014, The Innocence Project wrote a letter in support of Schofield's innocent. They vehemently stated: “We gladly entered the case because it was clear to us that Leo was innocent and had evidence to prove it—fingerprints in the victim's car matching those of a convicted first-degree murderer who frequented the area where the victim's car was found and often took his girlfriends to the same spot where the victim's body was recovered. Unfortunately, the courts in Florida compounded the injustice of Leo Schofield's more than two decades of wrongful incarceration by conveniently believing the excuses of a convicted murderer while rejecting undisputed forensic evidence linking this murderer to the crime. Just weeks ago, Schofield was again denied parole—likely considered remorseless by maintaining his innocence. He is now represented by J. Andrew Crawford, who is currently working on an appeal. Schofield believes that one day he will be exonerated. He is understandably wary, but has still not lost all hope in the system. The same system that put him away for life, while another man got away with murder. 

Candace A. Hawthorne, Esq. Trials & Appeals CRIMINAL LAW FAMILY LAW MEDIATION ( Fla. S.Ct. Cert. Circuit Civil)

Hawthorne Law Firm, P.A. 319 E. Main St., Tavares FL 32778 Phone: 352-742-5200 Email: AlawyerCH@gmail.com www. Hawthorne-Law-Firm .com

Lake Legal News Feb. 2015

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Lake Getty Images

Legal News: Photo Essay

By: James Hope, J.D.

I

easily demonstrate why she captured the people's vote: “In family court oftentimes you have good people on their worst day. These people and their children should expect—in fact they deserve—nothing less than my best efforts on their worst day. Fairness, respect, patience and compassion are the pillars of justice here in Citrus Addressing the packed crowd assembled County and I promise nothing less to every for her February 6th investiture proceed- person that enters into my courtroom.”  ing, Judge Hatcher's soft-spoken words

t's almost too poetically fitting to mention, but in the same historic courthouse where Elvis Presley appeared in the 1962 film release, “Follow That Dream,” attorney Mary P. Hatcher appeared in 2015 following her dream—to be sworn in as a circuit judge for Florida's Fifth Judicial Circuit.

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Lake Legal News Feb. 2015

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Lake Legal Book

News: Briefs

Getty Images

By: Gary S. Roen

• Reflecting On Domestic Violence: Understanding the Emotional Aftermath

tise as a counselor to give hope to women who have been abused. “Reflecting on Domestic Violence” is different from other books on the subject because Makarov By: Karen Robards uses her own poetry and by women she Publisher: Ballantine Press has encountered to convey the feelings of a victim and becoming a survivor. “Reflecting on Domestic Violence: UnderIn the last few months domestic violence standing the Emotional Aftermath” should has been ruled an epidemic. Pick up a be used by men and women as a rallying paper and there is a story every day about cry to say, “We have no use for abuse.” domestic violence ranging from the Baltimore Ravens player (Rice) and the way the NFL deals with domestic violence to • Keep Quiet charges of rape by quarterbacks of the Florida Gators and Florida State Semi- By: Lisa Scottoline noles. These are some of the famous ones Publisher: St. Martin's Press but we are made aware of the non-famous people's cases as well. This adult bullying must be stopped. “Reflecting on Domes- A cover-up of a tragic situation that tic Violence” is a book that addresses the involves Jake Bucman and his sixteen issue with solid information to women year old son Ryan soon mushrooms out and men—from why it happens, to victims of control to include Jake's wife who is becoming survivors. Makarov uses her being considered for a federal judgepersonal experiences as well as her exper- ship. In “Keep Quiet” Scottoline takes a

Author, consultant and syndicated book reviewer Gary S. Roen has been writing his appraisals of books for over 35 years; his reviews have appeared in hundreds of daily and weekly newspapers and other periodicals. Over the years Roen has been the Promotion / Sales Representative for several publishing houses. He was a talk show host on the Rollins College radio station, was co-host on a weekly radio talk show on “Desperate and Dateless,” was the roving reporter for “The Tourist Breakfast Travel Show,” frequently appeared on The Michelle Valentine show on cable and was a monthly guest on the Bobbie Thomas show. Find him currently on the “My Home Town” show with Jim Turner (WBZW, Orlando) and the Larry Steele show (WPUL, Daytona Beach). Roen also works for numerous companies in the field of market research in the Central Florida area as an independent contractor. 44

Lake Legal News Feb. 2015


very simple situation and shows how so many people are affected by one act. She keeps the reader in suspense with many twists and turns to the very end. “Keep Quiet” is a grand tale of human nature as well as a great legal thriller. • Hope To Die By: James Patterson Publisher: Little Brown And Company

legal thriller that will have readers turning pages to its final surprising ending. • The Last Kiss Goodbye By: Karen Robards Publisher: Ballantine Books For me “The Last Kiss Goodbye” was a snail paced tale that was very boring all the way through. The story sounded interesting (about a psychiatrist who deals with serial killers), but there is something wrong from the first line where she encounters a dead man on her couch who just two or three paragraphs later opens his eyes to look at and talk to her. I found the writing to be very confusing and the characters were not believable. “The Last Kiss Goodbye” was very disappointing.

“Cross My Heart” (the last Alex Cross novel), left things in the air for his family that had been kidnapped. In “Hope to Die” Patterson ties up that story line with a nail biting tale of suspense as Alex Cross searches for the people who took his family hostage. He is more determined than ever before because this time it's personal. The novel moves along with plenty of twists and turns and brings in some new characters who • Dead Don't Lie help Cross on his mission to find his fam- ily. “Hope to Die” was worth waiting for. By: L. R. Nicoleolleo Publisher: Harlequin HQN • The Last Alibi By: David Ellis Publisher: Berkley Prime Crime Before “The Last Alibi” the only David Ellis novels I had read and reviewed were the ones he has co-authored with James Patterson. A man named James Drinker hires attorney Jason Kolarich to represent him. Simple enough but Drinker is not the name of the client and things get more complicated as the story unfolds to the point of Kolarcch being charged for the murder of a woman he was dating. “The Last Alibi” is an enjoyable tale of the dark side of attorneys and what they will do to win a case that is a fast paced well crafted

As “Dead Don't Lie” opens, Evelyn Maslin's family has been brutally murdered in Phoenix Arizona. Fifteen years later she has changed her name, is a police detective with the Seattle PD, and has put the past behind her. Now there is a killer on the loose that she and her department are determined to take down. As the murders continue to happen, the department begins to see certain similarities to the case of Maslin's butchered family. The novel races along like a runaway train to its climax with great writing and well fleshed out characters guaranteed to please suspense fan readers. “Dead Don't Lie” is the first of a new series that is off to a great start with this chilling thriller.  Lake Legal News Feb. 2015

45


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ensuring national referred justice should the criminal a document commonly al possibilities and I.C.E. may issue to a local jail or correction you citizen, then of an individual to as a “detainer” a non-U.S. is seeking custody you engage If you are facility when it instituting removal ing that if for purposes of should heed-warnof criminal activity—even known as an in that facility detainer is better traveling in any type proceedings. This A common practice in Florida g—or when simply be as simple as shopliftin n, it may cause you to immigration “hold.” immigration detainers against placed using and “hold” I.C.E. trial, on with another non-citize before involves an immigrati ‘without status’ process—because in a criminal arrested and have a defendant rial your case in resolved d. against you until legal status can be determine before any prosecuto not have grounds for often does of the court and/or your such person generally of the outcome U.S. regardless legal citizen, the scope remaining in the defendant within involving a U.S. Conversely, a violations is t Resident In a typical case criminal case. ces for criminal such as Legal Permanen to of possible consequen in jail, paying a fine and/or immigration status, not subject to a “hold” prior time . limited to serving other court-imposed conditions unless he/she status, is generally for , state criminal matter, fulfillment of some many cases, the law allows conclusion of the s rendering him/her removable in lly, remain at liberty When arrested, has prior conviction removal order. Additiona the accused to in bail so as to allow matter is pending. However, on holds) give and has a standing (i.e., immigrati allowed while the criminal undocumented ns, before being I.C.E. detainers detain to non-citize authority the law requires cases involving date, pending local jails the criminal custody their release whether The to bail out of immigrants beyond to immigration officials. to first determine (I.CE.) agency at ent the arresting on detainees transfer of custody Customs Enforcemviolation of immigration holds in the State of in Immigration and placement of d practice detainee a person once widesprea a Hence, placed is considers the jails local are illegally (and thus of interest). cases, the holds of the charges, Immigration laws judges, and Florida. In many is arrested, regardless and have the enforcement officials, the non-citizen immigrants are by local law s are notified undocumented arrested person. immigration authoritie jailers. As a result, unauthorized detentions even a “hold” on the and power to place subject to lengthy have been cleared. charges U.S. I.C.E. hold? though their criminal and what is an ent (I.C.E.) Who is I.C.E., on a jailed imCustoms Enforcem an I.C.E. hold is a request to directly under Immigration and Who can place investigative Agency Security. It’s immigration detainer an indiis the largest migrant? An nt of Homeland nt agency to detain the U.S. Departme to protect national security, a local law enforceme is U.S. page 38) primary mission integrity of the (Continued on (including the on. The public safety trade and immigrati encompass borders), customs, enforcement authority agency’s law in Spanish). is bilingual (fluent Florida, and in Leesburg, practices law Mr. Cardona

36

1012 West Main Street, Leesburg, FL 34748

Lake Legal News

Aug. 2010

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Lake Legal Teen Court Image: Jamesbin / iStock

News: Report

By: Connor Jenkins

R

ecently in Teen Court, I defended a 16-year-old juvenile who was in possession of another classmate's drugs on school property. According to the defendant she has never been in possession nor had she smoked marijuana before or after the incident. At a bus stop, a fellow student enticed the defendant to hold her marijuana before school. Later in the day the teenager forgot about the substance in her possession; administration asked to search the defendant and she complied—which led to the discovery of the marijuana. The offender then learned the owner of the marijuana was the individual who reported her to administration. Attaining knowledge about the ‘set up’ instigated a turning point for this teenager, realizing the decision was against her better judgment. The other female classmate was not charged nor punished since she was not in possession of the marijuana.

involveed in the JROTC program, with high anticipation to later join the army. Her educational plans and enthusiasm in extracurricular activities display motivation for an affluent future. In addition to her progressive plans, the defendant also is performing well in school academically, pushing her past the isolated crime.

Peer pressure inflicted on the defendant (and her eagerness to comply) displays the possibility of a comparable circumstance arising regarding another illegal activity. Teen prosecuting attorney, Brady Jenkins (14), states, “You have to consider the fact that this is her first encounter with marijuana. But, what happens when she has her first encounter with something else such as alcohol, or even cocaine? Will she make the same mistake as she had with marijuana?” The affidavit does not show evidence of relentless coaxing from the classmate, however, The defendant's lack of history with mari- the offender still caved to the inducejuana was demonstrated by her own tes- ment of a peer with an illegal substance. timony admitting, it was her first encounter with the substance. The defendant In another case, Florida's Fish and Wildlife stated, “I learned the hard way not to hold Conservation Commission (FWC) regulasomeone else's marijuana.” This exhibits tion references general gun hunting seathe message received from a debauched son to begin September 20th each year. choice made by the offender, display- Planning to only spot deer that night, a ing the transformation of judgment. In a 17-year-old defendant and the unrelated, positive light, the juvenile is dynamically adult co-defendant commenced driving 48

Lake Legal News Feb. 2015


around on August 21st of 2014. The two defendants spotted a 10 point deer when Editor's Note: Connor Jenkins the offender stated to the adult, “Man, I is a Eustis High School senior, wish I could shoot it.” Fulfilling his wishes, AP Honor's Student, Girl's the grown-up pulled a rifle from the back- State delegate, National Honor seat—enabling the defendant to shoot Society member, and Jefferson the deer during closed season. (Previ- Awards member. She has been ously to the co-defendant handing him involved with the Teen Court the weapon, the defendant stated he was Program in Lake County, Florida, since 2009. unaware of the rifle in the car. After the juvenile shot the deer, it was unable to be The Teen Court Program is a diversionary proretrieved until the twosome initiated the gram that holds first time juvenile offenders next day's pursuit.) The bloated deer was accountable for their actions while affording uncovered; however due to its condition them a second chance through the court system. the juvenile delinquent cut off its head and gave it to the adult. The animal's body was discovered by officials tracing the head ing the time and chose to shoot the deer to the co-defendant's freezer, which was anyway displays his guilt. By doing so later repossessed by the law enforcement. the juvenile deprived other hunters from obtaining the animal during open season, Enabling the teenage defen- when it is essentially legal to hunt. The dant to shoot the deer by providing the rifle was a main influence in the case, although the juvenile was responsible for the actual misconduct. Without the empowering of the defendant with the weapon, the situation would have been harmless and an arrest would not have transpired. The offender stated, “It was a stupid mistake, I wish I wouldn't have done it. This has taught me a lot about following the rules.” Due to the defendant's recognition of the consequences of his demeanor, he stated that he will not perform the same error again. In the future the defendant plans on willing knowledge of the defendant holds obtaining a hunting license and postpone him accountable for his actions as well as shooting another deer until open season. the fact that he does not possess a huntThe interest the offender shows to obtain ing license. There was no benefit for the a hunting license should inhibit him from defendant in the situation due to the fact committing another crime so he won't hin- that he did not acquire the deer head. der the probability of gaining the permit. Prosecuting attorney, Brandon Glisson (13), states, “Due to all the knowledge Prosecution's objective was to display the he previously held about hunting and defendant's familiarity with hunting laws the rules to abide by, there is no excuse and experiences due to his close hunting for shooting the deer. He knew better.” family members. The fact the defendant stated he knew it was closed season dur(Continued on next page) Lake Legal News Feb. 2015

49


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(Continued from previous page)

The female defendant in the first case received minimal sentencing including twenty community service hours and three jury duties to fulfill her punishment. The jury recognizes a mistake made once as her first encounter with any type of drug, and they considered the fact that she was ‘set up’ by a classmate. However, the male defendant in the second case received higher community service hours and jury duties due to the fact that he was fully aware of his actions recognizing it was closed season. He was also required to wrote an essay encompassing rules and regulations of FWC. The jury bases their consequences off of the crimes and the defendants' demeanor in court, contributing to the callousness or benevolence of their sentences. 

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? Need to be fingerprinted nts ide Free for Lake C'nty res at the L.C.S.O., M-F (8:30 o a.m. - 4:30 p.m). More inf at: www.LCSO.org

Wading River, N.Y. I miss my old back yard! —J.Hope

COMMUNITY CORK BOARD Sponsored by:

www.1884RestaurantAndBar.com • Eustis, FL

r ommissione C ty n u o C e Want to Lak ill be honicial Circuit'scludes d w e Ju n k th io 5 n p e o m h a T w mor Leslie C the Lak hedule in outs e Coun e about nual Boy Sc OLIDAY sc g dates: n H A e th t a d ty ore Hall of min Dinner, 6:00 Fame? Women's these upco C Golden Eagle 2015, at the W on endy Ta 12, 3, 2015 ylor: wt tact p.m., March riday, April 25, 2015 , F l b a a lu k y C e l & o c rt r o @ so u y nty Re Monday, Mapt. 7, 2015 Mission Inn 343-984 fl.gov or (352 L. F , ls il -H ) e 9 h . Monday, Se pt. 14, 2015 Howey-in-t Monday, Se Sept. 23, 2015 Wednesday,

Volunteers Needed: Gu ide and supervise first-time juvenile of fenders in the “W ork in Lieu of Arrest” program (Saturdays, 7:15 a.m. to 12:15 p.m. Info: (352) 34 39596 or jnelson@lakecou ntyf l.gov 54

Lake Legal News Feb. 2015

Now two ways! to view Lake Legal News online: www.LakeLegalNews.com (Archives, back to Issue #1) www.Issuu.com (Issue #20, forward) Great for mobile devices!

The law office of Merideth C. Nagel is seekin g the original Will of Marion Zimmerman. Please contact (352) 394-740 8 with any inform ation.


Assoounty Bar C e k a L e Th its Annual ld o h l il w rch ciation ent on Ma m a n r u o T Golf ton t the Arling a 5 1 0 2 , , 0 2 b (Leesburg lu C lf o G e Ridg FL)

Elvis poses with Judge Semento (the “King” of the courtroom!)

Congratulations to another proud set of Lake Tech graduates (2014)

's The Lake County Sheriff s ha Of fice Animal Services an “Amazon Wish List” ke for anyone desiring to ma at k a donation. Find a lin www.LCSO.org

The Argento family welcomed daughter Emory Grace, born 1-8-15

Submit your announcement or photo at www.LakeLegalNews.com — free! ...Space is limited

“A ll u d e " / “e lu d e ". .. h e re w e re W r: e h c a b n e s s ro G l B il my’ im ‘Z n e h w s e y e rp a those sh re a ll y n e e d e d t h e m !?

Lake Legal News Feb. 2015

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LAST Roll of Film . . . Police & Fire Chili Cook Off / Tug-of-War • Clermont, FL • February 15, 2015 ►

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Photos by Bonnie WHICHER photography • Tavares ►

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Fla. Bar Board Certified Criminal Trial Law Expert Qualifications: I have practiced criminal law in Tavares, Florida, for 27 years. I am a former Assistant State Attorney, with supervisory experience at the juvenile, misdemeanor, felony and postconviction relief levels, including a designation as Lake County's first sex battery and first careercriminal prosecutor. My actual jury trial experience ranges from shoplifting and DUI to capital sexual battery and first degree murder—and I have stood before a felony jury an average of twice-a-year for 27 years. In fact, I have quadruple the number of felony jury trials required for initial Board Certification.

Contact Info:

Available for a free consultation (“Of Counsel”) through the Law Office of Zachary J. McCormick, 210 N. Texas Ave., Tavares, Florida. To reach me:

(352) 742-7474 • www.ZJMlaw.com, or (352) 742-3488 • www.AttorneyJames Hope.com

James Hope, J.D.

u are serious “Call when yo fended.” about being de


Lennon E. Bowen, III

Derek A. Schroth

Zachary T. Broome

Todd J. Mazenko

James A. Myers

Morton D. Aulls (Of Counsel)

Welcomes to the firm: Brett T. Williams

Sasha O. Garcia

Firm Areas of Practice: • Litigation and Dispute Resolution • Real Estate • Business and Corporate Law • Family Law • Condominium and Homeowners • Intellectual Property Association Law

b

• Estate Planning and Probate • Land Use and Zoning • Government and Administrative Law

www.bowenschroth.com 600 Jennings Avenue Eustis, Florida 32726

(352) 589-1414

a


Lake Legal News #21  

Lake Legal News is a high-quality, quarterly magazine, blending current events with both topical and historical profiles of Lake County, Flo...

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