Defendant was charged with trafficking in over 200 grams of cocaine in a police "reverse sting" operation in St. Lucie County. Evidence consisted of multiple eye witnesses (all law enforcement) testifying that Defendant took approximately one (1) kilo of cocaine from an underocver law enforcement officer, and walk from the officer's truck to the Defendant's vehicle.
Defendant then opened the container containing the cocaine and examined it. Both Mikel and his co-defendant then were promptly arresed.
At trial, the Court refused to grant an "entrapment" jury instruction as to Mikel, though allowing the co-defendant to receive the benefit of the instruction. This is because all of the communicatioins leading up to the arrest were between law enforcement and the co-defendant, and not with Mikel.
The challenge therefore was to persuade the jury that Mikel was not guilty, without using entrapment as a defense.
The mission was accomplished by equating "possession" of the elicit drug with "owndership". By arguing to the jury that the real issue in the case was ownership of the contraband, Kirschner was able to persuade the jury that since there was no evidence that Mikel "owned" the drugs, he could therefore not be convicted of possessing them.
The jury agreed. After approximately 90 minutes of deliberation, they returned a verdict of not guity. Had Mikel been convicted, the judge would have been to sentence him to mandatory minimum term of imprsonment of seven (7) years, up to a maximum sentence of thirty (30) years in the state penitentiary.
State of Florida vs. Marlon Morgan
Jan 25, 2007
Nine Felony Charges Dismissed
On December 19, 2006, Detectives at the Port St. Lucie Police Department sought nine (9) arrest warrants against M.M. in case numbers 2006 CF 6055 through 2006 CF 6063. The issuing magistrate signed the warrants, with bond amounts totalling $275,000.00. M.M. was arrested, and was required to post the bond.
M.M. was charged with one (1) count of First Degree Grand Theft, four (4) counts of forgery, and (4) counts of uttering a forged instrument. The Grand Theft charge alone could result in a sentence of thirty (30) years prison, and the eight (8) remaining counts could place M.M behind bars for an additional forty (40) years.
The allegations leading to M.M.'s arrest were completely false.
M.M. was in the midst of a difficult divorce proceeding and custody fight. During the extended, acrimonious litigation, M.M.'s girlfried refinanced her house, and as a gift, placed M.M.'s name on the deed. In order to accomplish the refinancing, M.M.'s wife had to "sign off" on the refinancing papers (because she and M.M. were still married).
The closing occurred uneventfully---with one (1) exception. M.M.'s wife refused to sit in the same room with M.M., insisting instead that she sign the closing documents in another room of the land title office.
Four months later, in the midst of the ongoing contentious divorce lawsuit, M.M.'s wife filed a complaint with PSLPD, claiming she never signed her name to any of the documents at the closing four (4) months earlier. (Interestingly, the wife's divorce lawyer told M.M.'s divorce lawyer, immediately preceding the arrest, that M.M. had participated in some "illegal" activity).
M.M. was arrested for Nine (9) felonies-------when he had not done anything wrong.
M.M. hired Board Certified Criminal Trial Lawyer Jay Kirschner, who quickly reacted by getting access to all of the closing documents, including a copy of the wife's driver's license, which was shown to the closing agent at the time of the closing. Jay immediately contacted the State's Attorney's Office, and advised them of the attempted deception being perpetrated by M.M.'s wife, merely to gain some perceived "advantage" in the dissolution and custody fight.
On January 25, 2007, the State of Florida filed it's No Information, dismissing all charges against M.M.
State of Florida vs. C.G.
May 04, 2007
DUI Reduced to Traffic Ticket
In State v. C.G. 2207MM400, the Defendant was charged with DUI while riding his motorcycle home in the early morning hours of January 28, 2007. The defendant hired Kirschner & Garland, P.A., to represent him.
Although the client had one previous DUI conviction occurring over twenty (20) years earlier, the previous conviction was the least of his problems. Of critical importance was the fact that C.G. currently was serving a probationary sentence, from another Florida County, for Cocaine Trafficking. Because DUI is a â€œcriminalâ€ offense, if convicted of the DUI, his probation could be â€œrevokedâ€, and the client could then be sentenced up to a maximum of thirty (30) years in prison. To avoid that result, the DUI had to be won.
Attorney Jay Kirschner noted there was no videotape taken at the scene of the traffic stop that would controvert the arresting officerâ€™s claim that the Defendant appeared intoxicated. The arresting officer insisted that the Defendantâ€™s behaviors when transported to the jail clearly indicated that the defendant was drunk, claiming Defendant â€œstumbledâ€ while leaving the â€œholding cellâ€, that he used the jail hallway walls to help maintain his balance while walking, and that he had difficulty taking off his boots when requested to do so.
Kirschner forwarded a demand to the Sheriffâ€™s department under Floridaâ€™s Public Records Law, requesting the Corrections Division to provide copies of all â€œsurveillanceâ€ videos taken of the Defendant, while he was at the jail, on the night of his arrest. Although those tapes are routinely destroyed after thirty (30) days, the quick response by the law firm resulted in the Sheriffâ€™s Office retaining the videotapes, and they ultimately provided the digital imagery to the Defense.
The surveillance video directly and clearly demonstrated that the arresting officerâ€™s description of C.G.â€™s behavior while at the jail was gratuitous and a figment of the deputyâ€™s imagination.
After providing a copy of the surveillance video to the prosecutor, and announcing that the Defense was â€œready for trialâ€, the Government offered to allow the Defendant to plead to the lesser (though still â€˜criminalâ€™) charge of â€œReckless Drivingâ€. Knowing that such a plea could lead to a thirty (30) year â€œprobation violationâ€----- the Defendant and his lawyer refused the offer, and again announced â€œReady for Trialâ€.
The government, facing the reality of exposing the officerâ€™s embellishments and prevarications, elected to dismiss the DUI charge, and the Defendant entered a nolo contendere plea to the â€œcivil infractionâ€ (CI) of Aggressive Careless Driving. (A â€œCIâ€ is a â€œtraffic ticketâ€, and cannot be used to violate a personâ€™s probationary terms.) The Court fined C.G. 0.00.
On May 4, 2007, the Government was forced to dismiss the Probation Violation of Case, and CGâ€™s probation was reinstated.
State of Florida vs. Juan Jose' Farias
Apr 30, 2010
15 Year Sentence and Conviction Reversed on Appeal
Mr. Farias was charged with one (1) count of Lewd and Lascivious Molestation, a felony punishable by a maximum sentence of thirty (3) yeaars in the Department of Corrections.
He was represented at trial by another lawyer; he was convicted and sentenced to fifteen (15) years in prison.
He retained JJK/LLC to represent him on direct appeal, and on march 31, 2010, his conviction was reversed and his case remanded to the Circuit Court for a new trial.
The appeal was difficult in that there was really only one (1) serious trial error committed by the trial judge, which involved allowing the government to introduce into evidence a single irrelevant photograph, which Kirschner argued tainted the entire trial and therefore required the case to be reversed.
Admitting photographs is considered to be "within the broad discretion" of the trial court, and Kirschner had to persuade the three (3) judge appellate panel in Palm Beach county that the trial judge "abused" that discretion. (This is the highest standard to overcome in criminal Appeal cases.
Despite the many procedural and substantive roadblocks to prevailing in such situations, Kirschner was able to persuade the three (3) judge panel that the photograph indeed was profoundly prejudicial, and required reversal for new trial.
State of Florida vs. Traci DiGiorgio
Defendant charged with Grand Theft by contracting fraud, in that she retained possession of approximately eighty-thousand dollars ($80,000.00) in deposit moneys, and the home was never constructed. Defendant maintained she was entitled to keep the money, as the "victims" signed an agreement which allowed her to retain all deposit monies in the event the lot owners defaulted (breached) the agreement.
The case took a full week to try, and the defense put on testimony by the Defendant, as well as a construction litigation lawyer-expert.
The jury deliberated approximately three (3) hours.
State of Florida vs. Anthony Maffia
Defendant was charged with two (2) counts of Capital Sexual Battery, and one (1) count of Lewd and Lascivious Assault on a child under the age of twelve (12) years old.
The MINIMUM MANDATORY sentence for a conviction as charged in the first two (2) counts is LIFE IMPRISONMENT, with no gain time, and no possibility of parole.
Case was tried with co-counsel, two (2) experts in the area of "false allegations of Child Abuse" (Kim Hart, and Ann Dell Duncan-Hively, Ph.D., J.D.).
The defenant testified, as did Dr. Duncan. Additionally, the defense called several STATE witnesses, including police officers, and introduced an audiotape of a threatening telephone call by the "victim's" mother's new boyfriend, wherein the Defendant was threatened with being placed in prison for a "long, long time." [the phone message occurred 6-8 weeks before the child made the allegations against the defendant].
The case took a full week to try, and the jury deliberated for twenty-nine (29) minutes.
Judge's ruling allows comedians to release video accusing Port St. Lucie man of molestation
Jan 07, 2013
By Tyler Treadway
Posted January 7, 2013 at 10:16 p.m.
FORT PIERCE — A judge's ruling Friday paves the way for two comedians to show their videotaped confrontation with a Port St. Lucie man one of the comics claims sexually molested him nearly 40 years ago.
Circuit Judge Dan Vaughn dissolved a temporary injunction he had previously granted to Stephen P. Spleen of Port St. Lucie to keep Andrew J. "Andy" Andrist of Eugene, Ore., and Doug S. Stanhope of Bisbee, Ariz., both standup comedians, from playing a tape of the pair's Nov. 4 interview with Spleen at a Port St. Lucie hotel.
According to a motion filed by Fort Pierce attorney Jonathan Jay Kirschner, Spleen admitted on the tape that he had abused Andrist.
A compliant filed by Spleen's attorney, J. Garry Rooney of Vero Beach, claims Andrist and Stanhope tried to obtain "money, possessions and/or notoriety to enhance their stand-up comedy careers by falsely accusing (Spleen) of committing disgraceful, deplorable and heinous acts."
Kirschner countered that Andrist wanted closure and to publicize Spleen's activities for the sake of any other past and potential victims.
Andrist claims he was molested by Spleen several times from June 1976 and 1981 when Andrist was between 11 and 13 years old. He said Spleen massaged him several times, and each time Spleen touched Andrist's penis.
Andrist also claims Spleen served him alcohol and showed him pornographic movies.
Kirschner's motion states Andrist at first suppressed memories of the encounters with Spleen; but when he became a comedian, he "incorporated elements of the child sexual abuse into his standup performances."
During a Jan. 9, 2009, performance for "Down and Dirty" on HBO, Andrist greets the audience and then abruptly says, "I got molested when I was 12" before making jokes about the encounters.
Kirschner wrote that Andrist learned two years ago that Spleen was living in Port St. Lucie.
According to a partial transcript of the Nov. 4 videotape cited in Kirshner's motion, Spleen replied "Uh-huh" when Andrist told him, "You were a sexual predator to me" and "You used that to ruin a portion of my life."
When Andrist asked "Are you sorry? Can you tell me that?" Spleen, according to the transcript, said, "Yes."
Rooney said Friday the transcript comes from an edited tape of the confrontation between Andrist and Spleen.
"We need to see an unedited version," he said, "one that hasn't been changed, modified and made to look different than it did in its original form."
Rooney said Spleen "denies the allegations 100 percent" and will pursue his claims of defamation and invasion of privacy against Andrist and Stanhope, adding that releasing the video would cause irreparable harm to his client.
"In this day and age," Rooney said, "(videos) can spread like wildfire. This case is about the fact that people shouldn't be able to say things about other people that aren't true and get away with it."
Andrist could not be reached Friday evening.
Stanhope said when and how the video is released "is up to Andy. This is all Andy's deal. ... It'll get out there, though. I guarantee that."