Death row inmate freed after 9 years in Texas prison – CNN.com

 

Death row inmate freed after nine years in Texas prison

LINK:  Death row inmate freed after 9 years in Texas prison – CNN.com.

Credit to:

By Michael Martinez, CNN

updated 8:03 PM EDT, Wed October 8, 2014
Reposted by Caryn S. Fennell, Attorney at LAW:  [Someday we will properly advocate and litigate all criminal cases for the right reasons, not for self-satisfaction or public accolades.  The more we draw attention to the injustices then the more likely attorneys and their investigative teams will discern between persecution and prosecution.]
Manuel Velez, who the ACLU says is

Manuel Velez, who the ACLU says is “far from the only innocent person to receive a death sentence”

 

Velez’s initial court-appointed attorneys failed to discover that evidence, and “after his conviction, Manuel received the death penalty, largely because a state prison expert presented false testimony to persuade the jury that Manuel would pose a danger to society if given life without parole instead,” the ACLU said.(CNN) — An intellectually disabled construction worker was freed Wednesday after nine years in a Texas prison, including four of them on death row, after his initial conviction for murdering a year-old infant was overturned.  Manuel Velez, whose IQ is 65 and who is functionally illiterate in his native Spanish as well as English, was convicted in Brownsville in 2008 for murdering the year-old son of his then-girlfriend. But the American Civil Liberties Union, which represented Velez in his appeal, said Velez was 1,000 miles away working construction in Tennessee when the child was injured.

 

On Wednesday, an ACLU attorney described Velez, now 49, as an innocent man who was put on death row for a crime he didn’t commit. “Manuel never belonged in prison, let alone on death row waiting to be executed. He is indisputably innocent,” Brian Stull of the American Civil Liberties Union’s Capital Punishment Project said in a statement. “My joy for him and his family today is tinged with sadness for the years our criminal justice system stole from him, all because he was too poor to afford better counsel than the lawyer the state appointed to him. “We should be ashamed of the errors that put Manuel on the brink of execution. He is far from the only innocent person to receive a death sentence,” Stull said. Cameron County District Attorney Luis V. Saenz called Stull’s statement “factually inaccurate and full of half-truths.”

 

“Nowhere near the child”

Attorneys for the ACLU contended that prosecutor’s medical expert’s records showed “clear proof that the head injuries the baby sustained occurred when Velez was nowhere near the child,” the ACLU said. During the trial, Velez’s court-appointed lawyer also failed to “discover and present the testimony of the many witnesses who said the girlfriend threw, hit, and dropped the baby and abused her children, while Manuel was never physically rough and always peaceful,” the ACLU said.

Velez’s attorney also “bungled his challenge to the typewritten statement that police persuaded Velez to sign, which said he had mistreated the child,” the ACLU said. In fact, Velez was unable to read the statement, written in English, as he is functionally illiterate in both English and Spanish, the ACLU said. Also, Velez’ primary language is Spanish, and he is a seventh-grade dropout, the ACLU said.

 

Child’s mother pleaded guilty

The child’s mother, Acela Moreno, also was indicted for intentionally or knowingly causing the death of her son, Angel, by striking the boy’s head with a hand or unknown object or against a hard surface in October 2005, according to court papers provided by the ACLU. Moreno accepted “a plea bargain offer” and pleaded guilty to a lesser charge of intentionally or knowingly causing bodily injury to her son, and she was sentenced to 10 years in prison, the court papers said.

In exchange for the reduced charge, Moreno agreed to testify against Velez, but stated that Velez didn’t strike her son on the day he was rushed to the hospital, where the child died two days later, the documents said.  A jury convicted Velez of capital murder and sentenced him to death. An appeals court reversed the death sentence but affirmed the conviction in 2012, the court papers said. Saenz, the district attorney, said the Texas Court of Criminal Appeals rejected all but one of the Velez legal team’s claims of 45 points of errors in the conviction. That one point of error was the testimony by A.P. Merillat, a prosecution expert on the death penalty.

 

‘Ineffective’ defense attorneys

Merillat, a former police officer, was condemned by Texas’ highest criminal court in 2012 for giving false testimony, the New York Times reported.  “In October 2008…Mr. Merillat testified that after 10 years of serving life without parole for Capital Murder, an inmate could gain a less restrictive classification from the Texas Department of Justice Institutional Division,” Saenz said in a statement.

 

“In September 2005, Texas Department of Justice Institutional Division changed its regulations and no longer allowed for a less restrictive classification for inmates serving life without the possibility of parole in Capital Murder cases. Based on that testimony, and based on that alone, the Texas Court of Criminal Appeals overturned the punishment of Manuel Velez,” Saenz said. In 2013, Judge Elia Cornejo Lopez granted Velez a new trial “on the grounds of ineffective assistance of counsel because of the actions and conduct by both Hector Villarreal and O. Rene Flores,” the court papers said.  Villarreal was deceased at the time of the ruling, and Flores wasn’t immediately available for comment Wednesday.

 

Prosecutor’s response

The ACLU continued to criticize prosecutors Wednesday, saying that “after Velez’s conviction was overturned, and in the face of overwhelming evidence of his innocence, the State refused to dismiss the murder charge against him unless he took a plea,” the ACLU said.

Velez pleaded no contest to a lesser charge of injury to a child “rather than face a new trial that could be plagued by the same injustices that sent him to death row,” the ACLU said.

But in his statement Wednesday, Saenz pointed out that “at no point did any court, trial or appellate, or any jury make any finding that Mr. Velez was actually innocent of murdering Angel Moreno.

“In fact, every time the issue was brought up, it was found to be without merit. It was and continues to be the position of the Cameron County District Attorney’s Office that Manuel Velez did contribute to the death of Angel Moreno, and he was and is being punished for that crime,” Saenz said.

D

Forsyth deputy shot, suspect dead, courthouse evacuated | www.ajc.com

Authored by:  Caryn S. Fennell, Attorney at Law

This is where I work.  It is where I go to stand up for those people who cannot stand up for themselves.  It is where we gather to unravel the legal woes that cause people hurt and sadness or that relieve their hurt and sadness.  It should be a place where we feel safe when making the types of arguments that require us as lawyers to reveal the depth of someone’s abuse, corruption, deception, manipulation, harm or other bad conduct.  It is where we negotiate, mediate, contemplate and mitigate on behalf of our clients and where we strive to encourage others to lay down their emotions and anger in order to find the middle ground.  This should be a safe place for all who enter, whether clients, members of law enforcement, Officers of the Court, Court Administrators, Clerks, Janitors, Judges, prosecutors, defenders,  tourists, bystanders, witnesses, and any other person who walks the halls.   Those who come here may not always agree with the outcomes, but our Judicial system is one of the greatest in the world and it should never be disgraced with such vile conduct as that displayed today in Forsyth County.  Thank you to the currently unnamed Deputy who was alert enough to hear the chaos and confront a man with enough bombs and ammunition to cause very serious consequential damage.  The next time I walk in those doors I will be sure thank every officer in that building for having the courage and willingness to act with pure selflessness, and always for the greater good of those who walk through those doors.  Today I appreciate every Law Enforcement Officer as they all have very difficult and often thankless jobs.  

Forsyth County Courthouse

For more information follow the one of these links:

AJC:  Forsyth deputy shot, suspect dead, courthouse evacuated | www.ajc.com.

CNN:  www.cnn.com/2014/06/06/justice/georgia-courthouse-shooting/index.html?hpt=hp_t1

 

 

 

 

 

Are the Contents on my Phone a Private Matter?

Author:  Caryn S. Fennell

The United States Supreme Court heard arguments last month about whether law enforcement officers shall be permitted to search the contents of an arrestee’s cellphone incident to their arrest.  The questions before the Court shall set the boundaries of warrantless searches and test the true parameters of the United States Constitution, particularly the Fourth Amendment, which guarantees protection against illegal searches and seizures.  The issues of searching cell phone incident to arrest are have proponents and opponents on both sides of the political aisle.  SCOTUS’s decision will likely turn on whether a cell phone is similar to a wallet or purse, thus subject to a standard inventory search upon arrest, or if the cellphone is tantamount to a person’s home or personal computer, with heightened expectations of privacy for the extensive contents and information contained therein, thus first requiring a law enforcement officer to obtain a warrant before performing a search.  

United States v. Wurie, the police arrested the defendant after they saw him sell drugs. They searched his flip phone, finding a phone number identified as “home.” They used the number to find his residence, which they subsequently searched, finding drugs and a gun. In Riley v. California, the defendant was stopped for driving with expired tags. A search of the car turned up two guns, and the defendant was arrested. The police search his phone, finding photographs and call records that helped to link the defendant to a shooting. In both cases, the defendants argue that the cell phone searches violated the Fourth Amendment.

The Supreme Court has long held that law enforcement officers may search arrestees incident to their arrest without a warrant. This is permitted so that officers can prevent the destruction of evidence and uncover weapons, and the search authority extends to items within an arrestee’s immediate control.   See, e.g., Chimel v. California, 395 U.S. 752 (1969). The issue in the two cases before the court is whether cellular phones – and by extension, other portable electronic devices like tablets and laptops – may be searched pursuant to this rule, or whether they should be treated differently because they can contain mountains of personal information, far more than can be wedged into a wallet or a purse.

 The Court will likely render a decision before in August, 2014

Jury rules in favor of ex-ethics chief; awards $700,000 judgment | www.ajc.com

By Aaron Gould Sheinin , The Atlanta Journal-Constitution

 

Stacey Kalberman was unfairly forced from office as retribution for investigating Gov. Nathan Deal’s 2010 campaign, a Fulton County jury ruled Friday.  The jury, after deliberating 2 1/2 hours ordered the state to pay the former ethics commission director $700,000.  Jurors began deliberations midday Friday.

See more here:  Jury rules in favor of ex-ethics chief; awards $700,000 judgment | www.ajc.com.

 

 

Georgia law goes after left-lane lingerers, we cheer – Autoblog

 

Georgia drivers are going to face a new law on the Peach State’s roads, as a bill aimed at left-lane hogs has received near unanimous approval in the state’s House of Representatives, passing 162 to nine.

The bill, colloquially called the “slow-poke” bill but officially known as House Bill 459, makes it a misdemeanor to hold up faster moving traffic by sitting in the inside lane of a freeway. Yes, a misdemeanor. The bill was introduced by Representative Bill Hitchens, a former state trooper.

Reposted from www.autoblog.com.

“My reason for doing this is more for an educational opportunity for people who don’t understand you’re not supposed to ride 55, 60 mph in that left lane when you’ve got 15, 16, 17 people lined up behind you,” Hitchens told The Atlanta Journal-Constitution‘s website.

According to The Athens Banner-Herald, drivers spotted by police slowing up traffic could face ‘stiff penalties, with up to a $1,000 in fines and 12 months in prison. “I always say it’s the manners your momma should have taught you; if someone pulls up behind you, you move to the right and let them by,” Hitchens toldMyFox Atlanta.

The bill still needs to pass the state senate before it can be signed into law by the governor.

see the full story below.

Georgia law goes after left-lane lingerers, we cheer – Autoblog.

Student’s lawsuit against parents for support loses 1st round in court – CNN.com

Author:  Caryn S. Fennell, Attorney at Law:  Caryn S. Fennell & Associates

It is unbelievable what our family law courts have become.  And, the lawyers that lend such incredibility to our practice with these suits are a large part of the problem.  This adult’s suit  against her parents should have been dismissed  as it sets bad precedent.  This permits children to be unruly at home, truant at school, run away from home and then return to the cash well for financial support because they have not graduated high school.  This is a classic issue of children wanting to live like adults but not wanting to act like adults.  Parents should be allowed to emancipate children who leave home without substantiated allegations of harm  and deprivation first.

 

Student’s lawsuit against parents for support loses 1st round in court – CNN.com.

Felony Frankfurter Thief: A story that is only newsworthy because it is so ridiculous!

Author:  Caryn S. Fennell, Attorney at Law:  Caryn S. Fennell & Associates

Need I say more than I did in the the title?  When a man is charged with a felony, punishable by a year or more in prison for an offense for a $1.49 piece of meat.  He has a $4,000.00 bond, has likely cost the county $73.00 per day to house him, and has cost the County even more money to book and process him.  Of course he will probably need an attorney appointed to him on the County’s dime as he is likely indigent.  SCORE = $2,500.00 + to the county and $1.49 in restitution to the convenience store.

GENIUS!

Read more: http://www.upi.com/Odd_News/Blog/2014/02/21/Indiana-man-faces-felony-theft-charge-for-allegedly-stealing-hot-dog/1001393017410/#ixzz2uB1r0RQ9

 

 

 

 

 

Affluenza Defense: Creative or Conniving?

Author:  Caryn S. Fennell, Attorney at Law:  Caryn S. Fennell & Associates

Just when we thought we heard it all comes the Affluenza Defense.  Some say this is creative, other say it is conniving.  I say it is an example of how money buys influence and results.  Obviously, only the uber wealthy are privileged enough to muster a creative defense as it is not exactly a fitting for the impoverished.  The real questions are whether this defense creative or conniving and does it prevent accountability or promote the proper administration of criminal justice?

“According to police, the defendant’s “blood-alcohol level was three times the Texas legal limit when his pickup slammed into a group of people who were helping a woman with a stalled car last June. The driver, Breanna Mitchell, and bystanders Brian Jennings, Hollie Boyes and daughter Shelby, were killed. Nine others were injured.”

See more about the 10 year probated sentence handed down this young man:

http://www.usatoday.com/story/news/nation/2014/02/05/no-jail-for-teen/5242173/

 

Fourth Amendment Overview: Protections Against Unlawful Search and Seizure

Author:  Caryn S. Fennell, Attorney at Law:  Caryn S. Fennell & Associates

Search and seizure is a process used by law enforcement to search a person or the confines of their property (automobile, residence, business, cell phone, etc.) in connection with a crime, and then confiscate all evidence in support of that particular crime.   The general rule of thumb in the United States is that a law enforcement office or their agents must obtain a warrant before engaging in a search or seizure, unless one of the many exceptions applies to the circumstances. 

 THE FOURTH AMENDMENT PROVISION

Specifically, the Fourth Amendment of the Constitution provides that:

“it is the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

 SEARCH AND SEIZURE DEFINED

Searches occur when an individual’s reasonable expectation of privacy is breached.  Reasonable expectation of privacy can be subjective or objective.  A subjective expectation of privacy is based in the individual’s opinion about their privacy.  An objective expectation of privacy is based in what is generally recognized by society as being private.   The Fourth Amendment only applies where there an individual has a subjective expectation of privacy but there must also be an objective expectation as not all individuals have reasonable, subjective opinions about what should be considered as private.  Some examples of where the Fourth Amendment applies are residences, hotel rooms,  private sector businesses buildings, public restrooms, phone booths, etc.  However, it is important to note that there is no expectation of privacy where things are held out for public consumption or view, such as garbage left on the street, or marijuana growing in the front window of a home that can be easily viewed from the sidewalk or that is not only viewed by enhanced surveying equipment or in places considered “open fields” such as barns and other outbuildings.

Seizures occur when there is a reasonable interference with an individual’s rightful ownership interests in the property occurs.   Seizures can include a wide array of property, such as cell phones, bodily fluid, clothing, wallets, weapons, or other possessions not abandoned by the owner.

 THE MYTHS ABOUT THE FOURTH AMENDMENT

One myth about the Fourth Amendment is that law enforcement can never conduct a search without a warrant and if they do then the evidence obtained is inadmissible.  Another myth about the Fourth Amendment is that if incriminating evidence is obtained in violation of the Fourth Amendment, then the case against the defendant must be dismissed.

 THE TRUTH ABOUT THE FOURTH AMENDMENT

The truth about the Fourth Amendment is that searches and seizures may be conducted without a law enforcement officer first obtaining a warrant providing a valid exception to the warrant requirement applies.  Furthermore, even if an officer violates the Fourth Amendment, the evidence collected that is subject to the violation must be deemed “poisonous” by a Court of competent jurisdiction upon the motion of defendant or the defendant’s attorney.  If the Court deems the evidence poisoned, then all evidence that arose as a result of that illegal search and seizure shall also be suppressed.  This is the “fruit of the poisonous tree” theory.  However, just because evidence is suppressed does not mean the case shall be dismissed.  If the prosecutor can prove their case against a defendant without the evidence that was suppressed, then the case will likely proceed against the defendant under the alternate evidence.

If you feel your Fourth Amendment Rights were violated then seek legal counsel immediately to ensure your rights to challenge the evidence against you is preserved.

 

 

Contested Versus Uncontested Divorce: A General Overview

Author:  Caryn S. Fennell, Attorney at Law:  Caryn S. Fennell & Associates

In Georgia, there are two types of divorces, uncontested and contested. The main difference between the two is whether the parties are able to reach a Settlement Agreement resolving all issues related to the marriage, including Custody, Division of Debts and Assets, Alimony and Child Support.

UNCONTESTED DIVORCES

In a truly uncontested divorce, the parties agree on all elements of the dissolution of the marriage and do not require a court to intervene. This agreement can come at any stage of the divorce process, including before the divorce litigation is filed.

More often, the parties do not reach an agreement until after litigation is filed and sometimes require mediation before they reach a full and complete agreement. Once the agreement is reached, then it is memorialized in a Settlement Agreement that is signed by the parties and filed with the Court. Once signed by the parties, the Settlement Agreement is fully enforceable and un-appealable unless under very extreme circumstances that shall not be reviewed in this Guide.

If the parties have minor children, then they must also file 1) Financial Affidavits, with supporting income documentation, 2) a Parenting Plan that is also signed by the parties, 3) a Child Support Worksheet that complies with the Georgia Guidelines for Child Support, 4) certificates of completion for of the Divorcing Parents Seminar, and; 5) if required by the venue, then the parties must also file a Child Support Addendum.

After the agreement is reached, the parties may ask the Court to grant them a final decree of divorce either through a hearing or by motion of the Court, depending on the preference of the Court. If the documents are in proper form, then the Court shall grant the decree of divorce. One of the major benefits of this strategy is cost. However, it is not unusual for even an uncontested divorce to be costly to the parties, but it is not nearly as expensive as full litigation and the expenses of trial.

CONTESTED DIVORCES

Logically, the opposite of an uncontested divorce is a contested divorce. A divorce can be either fully contested or contested in part. A fully contested divorce is one where the parties are incapable of agreeing on anything without judicial intervention.  Divorces contested in part are those where the parties may settle certain aspects of the divorce, but the balance of issues are litigated through to trial and determined by a Judge or Jury.

Uncontested can be very costly, damaging and highly emotional due to the nature of the conflict between the parties. They usually take months, if not years to complete and result in neither party being truly happy with the outcome.  In the end, the Judge decides how to split up the assets, how much alimony is to be paid, if any, who shall have primary custody of the children and how legal custodial rights shall be shared, if at all. More often than not, most people who pursue a divorce all the way through to a trial are never pleased with the results, which makes the idea of an uncontested divorce a far more attractive option.

CONSEQUENCES AND BENEFITS OF UNCONTESTED DIVORCES

Any good attorney will advise their client to never settle on a deal that is patently unfair to their client.   However, if they are worth the retainer paid and are truly client-centered versus money-centered lawyers, the same attorney will never advise a client to litigate a case that can or should be settled prior to trial. The benefits of settlement or an uncontested divorce are immeasurable. They are best explained through a discussion of the consequences of contested divorces.

One main consequence is the harm to any children of the marriage. Children are often wedged between feuding parents and used as pawns to punish each other.  Even those parents who try to keep their children out of the middle of litigation do not fully succeed. Publicly airing each other’s dirty laundry, falsely accusing each other of misconduct, or fighting about the minutia can leave children scarred for life.  Another consequence, aside from the extraordinary costs of litigation, is that it is always a gamble to leave the decisions about custody, assets, and other matters to a Judge to decide.

More often than not, after months of years of fighting and thousands of dollars on legal expenses, neither party is happy with the decision of the Judge. Thus it is better to settle on your terms than to be forced to accept those of the Judge. There is no doubt that there are rare occasions when it is worth fighting over issues of a divorce. But is it best to choose those fights wisely, as more often than not, being right is not nearly as important as doing the right thing for everyone involved.

Author:  Caryn S. Fennell

Huge Win for Father’s Rights in Fulton County – $195,000 Attorney Fee Award

Author:  Caryn S. Fennell, Attorney at Law:  Caryn S. Fennell & Associates

A Fulton County Judge, the Honorable John J. Goger,  oversaw a child custody battle over an 11-year old child, righted a profound wrong on December 19, 2013 when he boldly awarded the child’s Father and Defendant in the action over $195,000.00 in attorney fees.  The Court issued his Order against the mother for what he stated to be a horrendous abuse of process by the mother for making and pursuing false child-abuse and molestation allegations against the Father.

The court wrote, “While this Court notes that efforts to level the playing field are generally viewed favorably in the context of domestic cases, there never should have been a playing field to begin with in this case.”

False allegations of child molestation, child abuse and domestic violence are becoming more prevalent in child custody cases as a tool to win custody and other benefits.  Such allegations are very difficult to defeat and require the skills of a very tenacious and knowledgeable lawyer who is not afraid of aggressively taking on the accuser.  Such allegations are all to easy to make as they are nearly impossible to disprove and there are very little, if no consequences or accountability for the accuser.  Unfortunately, the fear of possibly punishing someone who makes a valid claim of abuse controls how society handles false accusers.   Until the pendulum swings back to center, and more Judges like Judge Goger start holding false accuser accountable, then such claims will continue to saturate Georgia Courts.

Kudos to Judge Goger for forcing the pendulum back to center!

 

For more information see the following media report: ” title=”Mom Must Pay $195,000 in Fees for Custody Battle in Fulton County” target=”_blank”>