Criminal Defense Attorney | Criminal Defense Law

Blog Published By Kenneth Padowitz, P.A.

‘Criminal Procedure’

The Connection Between Expert Witness and Ineffective Assistance

Effective Assistance One of the primary appeals of the United States of America and its Constitution is the protection of the fundamental rights of citizens. The Sixth Amendment guarantees certain fundamental rights of all citizens. A few of these rights include fair and impartial trials, a speedy trial without undue delay, a jury of peers, and effective assistance from counsel. No doubt, the right to effective assistance from counsel is crucial. However, it is subject to significant debate. Apparently, the debate shows no sign of abating soon owing to the widespread nature of the debate. For example, the core of the debate—‘What is Effective Assistance’—affects the primary aspect of the effective assistance right. Nevertheless, case law has established tent pegs that help determine agreeable limitations of the vaguely defined right: specifically to ascertain whether or not an attorney provided effective assistance to his or her client. Ineffective Assistance under Florida Rule of Criminal Procedure Due to the nature of the law, an individual can only bring up a case for ineffective assistance by making a post-conviction appeal. The Florida Rule of Criminal Procedure 3.850 supports… Read More

Why DNA is not Foolproof

dna evidence

DNA Evidence To be fair, DNA evidence would go down in history as one the most influential technologies by the criminal justice system. However, its much-touted “infallibility” is falling like a pack of cards in the face of growing technological scrutiny. DNA Evidence is Fallible For the layman, the premise of using DNA evidence is fail-safe. Our DNA is one of a limited number of biological signatures—another being our fingerprints. Considering that on average we shed 30,000 and 40,000 skin cells per hour, it is overwhelmingly possible for a suspect to leave a bio-trail at the scene of a crime that makes identifying him or her remarkably easy. However, that explanation is also the bedrock of the opposing viewpoint held by professionals—that DNA evidence is easily transferable. Especially in instances where the DNA evidence is culled from skin cells, then the ability of skin cells to move easily can be a limiting factor to the reliability of the technique. Take this illuminating scenario for example. The murder of a multimillionaire was pinned on a homeless man. Unfortunately, this was a false allegation. The paramedics that… Read More

Financial Bail: How It Distorts Legal Fairness

financial bail in the criminal justice system

Introduction A healthy legal system is one that carries out regular reforms to reflect existing values of the society. Over the last decade, a major issue plaguing the criminal justice system has been the high population of incarcerated individuals, which has led to an overpopulation of the jails and prisons. This is in sharp contrast to countries like Sweden and Netherlands that are closing their prisons for opposite reasons. The fact is that for virtually every year from 1993 to 2012, crime rate has been falling. So, why is the incarcerated population increasing then?Among a myriad of reasons, perhaps the most plausible is the number of outdated practices that put more people in jail, while the rate of the clearance remains fairly steady. One of these outdated practices generating a lot of discourse is financial bail. Financial Bail Financial bail refers to the practice of courts temporarily holding onto a deposit of money or property as collateral. This is to ensure that the defendant will return when trial commences to claim their assets, and guard against the possibility of the defendant being a flight risk.… Read More

Florida’s Death Penalty Sentencing System is Unconstitutional as per US Supreme Court Rule

capital punishment in florida | Broward criminal lawyer Kenneth Padowitz

The State of Florida has one of the highest death penalty rates in the country. This comes to no surprise as many of its citizens are some of the strongest proponents of capital punishment. However, the state is now facing a significant issue regarding death penalty, which may eventually lead to major amendments in their judicial system, after the United States Supreme Court ruled that the state’s death penalty sentencing system is unconstitutional. The Supreme Court is of the opinion that Florida’s current death penalty sentencing system is a direct violation of The Sixth Amendment, which proclaims that defendants have the right to a speedy and fair trial, and that the jury for said trial is impartial. The jury shall weigh the aggravating and mitigating circumstances and ultimately determine what sentence shall be given to the criminal. Florida’s current system, however, is different and is considered an outlier compared to the rest of the country as it gives more weight to a judge’s independent judgment instead of a jury’s decision, which could either be unanimous or non-unanimous, another outlier compared to most states. This means… Read More

Consumer Rights

wearable technology and consumer rights | Broward criminal lawyer | Kenneth Padowitz, P.A.

In the quest for a better and more comfortable life, man has various types of technological gadgets. This has opened up the tech age on which we are part of now. Even if the technological era has made our life simpler, it also brought some disadvantages. It appears that some of the technologies we are enjoying today are also violating our legal right to privacy. Wearable Data Technologies: Harvesting Our Personal Information The popularity of biometric gadgets that people are wearing today might not raise some red flags. The influx of such gadgets is seen by many as a blessing. This is because they can monitor everything about their bodies: pulse rate, metabolism, sleep patterns, and many other things. A lot of these data are stored up in the “cloud” where access can be enjoyed anytime. The alarming thing about this is that with the correct skill and resources, anybody can pry into such private data. Of course, there are also other wearable technologies out there that leave us craving for better levels of privacy. New Generation Television Units as Monitoring Devices Just a few… Read More

Tattoos and Rap

tattoos in court | Broward criminal lawyer Kenneth Padowitz

Several members of the Latin Kings gang were arrested in Florida for racketeering and other charges. 23 of its members were incriminated in the process of indictment, as associates of one of the biggest and most well organized gangs in the country. The trial sparked controversy and great surprise when the most powerful evidence presented for the case included gang-related tattoos, symbols, and handshakes. People asked, was this a violation of the First Amendment – the right to free speech? Criminal Procedures Guided by Federal Rules Courts are bound by Federal rules of criminal procedure when evaluating and determining when and how they can use evidence in a case. Some submitted evidences may bear insignificant probative value but the defendant may find it highly detrimental to his defense. One example is: a defendant that was arrested for beating up a neighbor does not immediately prove that he also stole a different neighbor’s car. While these two events were unrelated and does not necessarily have bearing for the defendant, the mere presence of sharing the first crime’s incidence with the jury will put the defendant at… Read More

How Far Can The Government Go In Freezing Untainted Assets of Individuals Charged With Crimes?

frozen assets | Broward criminal lawyer Kenneth Padowitz

The constitution basically provides protection for an individual who has been arrested for committing a crime. There are rights that remain effective even before court procedures commence. Because freedom is at stake in the process, the 5th and 6th Amendment ensures that an individual will have legal assistance. An accused can choose the attorney to represent him most especially if he has the financial capacity to do so. The close relationship between an accused and his attorney is important for the success of the defense. It has been proven over and over again that those who have no choice but to be contented with state-provided attorneys lose in court battles. This is due to the fact that such lawyers are often burdened by a lot of work brought by too many cases they are handling. How A Criminal Defendant’s Assets Are Frozen Asset freezing can be ordered by the government if the crime committed by an individual falls under the “white collar” category. The logic here is easy to see. Since white collar crimes involve money, the monetary assets of an accused are basically evidences… Read More

What Kinds of Testimonial Privileges Do We Have In a Criminal Case?

Fort Lauderdale DUI Attorney Kenneth Padowitz explores the various privileges against incriminating testimony when facing a criminal charge.

Do we have any privileges that will prevent people from testifying against us in a criminal case? While most people are aware of, or partially understand the rights afforded to them, including the protection from self-incrimination, it is less commonly known that there are laws that can aid an individual in preventing others from testifying against them. Different privileges are available under state and federal law, and are often recognized in both state and federal courts. Although we may have certain privileges available, it is usually up to the defendant or attorney to assert their intentions of using these protections. The defendant usually must knowingly object to any testimony that may potentially be protected by a recognized privilege. Attorney-Client Privilege This is one of the most commonly known, and exists to allow the attorney and client to be able to discuss all aspects of a case, without the client fearing that their attorney will end up using the information that was provided against them in trial. Religious Confession (Clergy Privilege) The Federal Rules of Evidence recognize the clergy privilege, protecting both the individual making the… Read More

Boynton Beach Police Officer Accused Of Rape | Seeking Pretrial Release

DUI | Sexual Battery| Police officer

Stephen Maiorino, a married Boynton Beach police officer and a father of two, has been accused of on-duty rape and is seeking pretrial release. The prosecutor called the officer a danger to the victim and the rest of the community. The defense attorney claims the sexual encounter was “consensual”. Maiorino is facing two counts of sexual battery by a law enforcement officer with a firearm, armed kidnapping, and a bribery-type offense; if convicted he faces a maximum sentence of life in prison. On October 15, police pursued an individual who was later arrested for DUI, fleeing and eluding, and resisting arrest without violence. The passenger of this vehicle, the accuser, was left stranded with no working cell phone after police towed the vehicle. According to court records, Maiorino was supposed to take the alleged victim back to the police station so she could call family for a ride. In her statement, the officer began to threaten her with arrest unless she performed oral sex on him upon arrival to the police station parking lot. Soon after, the officer drove her to an “abandoned field” to… Read More

Ineffective Assistance of Counsel | Florida Rule of Criminal Procedure 3.850

Attorney | Appeal

Ineffective Assistance of Counsel Florida Rule of Criminal Procedure 3.850 An appeal based on the Florida Rule of Criminal Procedure 3.850, is an appeal of last resort. It is used when all other appeals have been exhausted. This appeal is a claim of ineffective assistance of counsel, in which the defense attorney was unprepared, or incompetent in representing the client. An appeal of this type suggests that if it weren’t for the incompetent attorney, the end-result of the case would have been different; for this appeal to be effective, the appellant must substantiate this claim. The United States Supreme Court decision of Strickland v. Washington established the standard to determine the legitimacy of the claim of ineffective assistance: “First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is… Read More