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Another Stand Your Ground Case In Florida Continues The Controversy

By David Ovalle, Miami Herald (TNS)

MIAMI — Tyrone Smith knew how to use his fists. Around his Miami Gardens neighborhood, the 19-year-old was known as the “Karate Kid” because he taught local children self-defense and how to stand up to bullies.

But when Smith felt insulted and began shouting at neighbor Jason Kinsey, the confrontation did not end in fisticuffs. Instead, Kinsey, 20, fatally shot the unarmed teenager — claiming he was defending himself against the martial arts expert.

A judge agreed. Miami-Dade Circuit Judge William Thomas last month ruled that Kinsey did act in self-defense, saying prosecutors are “discounting the enormity of Smith’s rage and the level of physical skill that Smith possessed as compared to Kinsey.”

The legal fight, however, is far from over. The state attorney’s office is now appealing the judge’s decision to dismiss the second-degree murder charge.

For prosecutors and Smith’s family, the case encapsulates all that is wrong with Florida’s Stand Your Ground law: Smith was unarmed, challenging Kinsey to an “old-school” fistfight only after being repeatedly provoked.

“People use that to get away with murder,” said Smith’s grandmother, Cynthia Hill. “The law needs to be modified.”

Travares Daniels, Smith’s uncle, said: “I know if a jury had heard this, he’d be going to jail.”

But for Kinsey and his defense team, the law worked exactly as lawmakers designed it. Kinsey was the bullied victim and had no duty to retreat. His fear of “great bodily harm” was real, even if Smith had no weapon in his hands, said attorney Richard Gregg.

“This case shows how the Stand Your Ground law is supposed to work and does work,” Gregg said. “It’s textbook.”

Smith is still facing an illegal firearm and evidence-tampering charge. He is under house arrest as prosecutors appeal.

Passed in 2005, Florida’s Stand Your Ground law eliminated a citizen’s duty to retreat in the face of a mortal threat. And more vexing for prosecutors, the law also gave judges more leeway to throw out criminal charges — before a jury trial — if they deem that someone acted in self-defense.

Critics say the law promotes a shoot-first vigilante mentality that allows criminals a pass on justice.

The law came under national scrutiny in the racially charged case of George Zimmerman, a Sanford man who claimed self-defense in killing unarmed Miami Gardens teenager Trayvon Martin in February 2012. The neighborhood watch member claimed he shot only after Martin attacked him first, repeatedly bashing his head on the ground.

Police initially cited the law in not charging Zimmerman. Prosecutors eventually charged him with second-degree murder. Jurors acquitted Zimmerman.

Zimmerman declined to ask a judge for immunity. Plenty of other defendants across Florida have gone straight to judges, with some successes.

In Miami-Dade, Kinsey’s was at least the fifth murder case to be thrown out directly by a judge.

The others:

–– Luis Martinez, who fatally shot a pipe-wielding, drug-addled attacker during a wild confrontation on a sidewalk in North Miami-Dade in September 2009.

––Dennis Sosa Palma, who fatally stabbed his brother after he said the man drunkenly attacked him with a knife in May 2010 inside their Little Havana efficiency.

––Alexander Lima-Lopez, who shot and killed an attacker who had beaten him at his Hialeah home in April 2011.

––Greyston Garcia, who chased down a thief who had broken into his truck and stolen his radio in Little Havana in January 2011. He felled the thief with one fatal knife thrust to the chest.

A judge ruled that Garcia acted in self-defense because the thief swung a bag filled with heavy car radios, citing a medical examiner’s testimony that “a 4-6 pound bag of metal being swung at one’s head would lead to serious bodily injury or death.”

Prosecutors wanted to appeal the decision but Garcia was killed by random gunfire outside a Liberty City convenience store.

The State Attorney’s Office hasn’t had success with self-defense appeals.

Last year, the 3rd District Court of Appeals granted immunity to Gabriel Mobley, an Opa-locka man who claimed self-defense after fatally shooting two unarmed attackers outside a Northwest Miami-Dade Chili’s restaurant. The court overturned a Miami-Dade judge’s refusal to throw out the case.

The state attorney’s office says the Mobley ruling has hampered prosecutors’ ability to even file charges in the first place against people who have fatally shot unarmed people. That was the case in at least three killings here in recent months.

“The Stand Your Ground law and the appellate decisions have cheapened human life,” said Miami-Dade Chief Assistant State Attorney Kathleen Hoague. “The law encourages people to arm themselves and settle differences with deadly force. You can set up a confrontation, arm yourself and legally get away with murder these days.”

Kinsey had graduated from high school but was not working in order to care of his cancer-stricken brother, according to his lawyer. Though he was looking for a job, Kinsey mostly played video games and hung out with friends outside his home.

Smith was an avid skateboarder and artist who was studying to be an electrician, according to relatives. He has also studied karate and volunteered to work with local children at nearby Rainbow Park.

“I have never seen him raise his voice. I have never seen him get upset,” neighbor Valisha Robinson said in a deposition. “The only thing I’ve ever seen this boy do was, you know, play with the little kids, teach the little kids how to defend themselves.”

He was also new to the neighborhood, having just moved into his sister’s house. The week before the shooting, he complained to his grandmother that Kinsey and his friends had been heckling him as he walked by on his way to the park.

“He wasn’t a person who liked to argue with people,” Hill said. “He said, ‘There’s these boys always bothering me.'”

On Aug. 24, 2013, Smith was walking past Kinsey’s home, where he was hanging out with a pal when somebody said something “vulgar” to him. Whatever the comment, it set Smith off and he “prodded the defendant to exit his property and fight him,” prosecutor Denise Georges wrote in a court filing.

Smith eventually walked away. Moments later, Kinsey said, he called a friend, who brought him a handgun, and then opened the house’s gate “to entice Smith to enter his property.”

Later, Smith walked past again, this time accompanied by several children, including his 5-year-old nephew, carrying mats and other karate equipment. Smith, in a rage and using profanity, repeatedly challenged Kinsey to fight.

“Bring your ass right here,” Smith hollered to the armed man. “I’m in college, what the f — you doing … you sitting there all day, every day … when can I get my one-on-one.”

According to prosecutors’ account, a neighbor implored Kinsey: “Take it to the old school. He just want to fight. Put down your gun and fight like a man.”

Smith shouted that he also had a “rifle at my crib.” He refused to go onto Kinsey’s property. “I know my legal rights … sidewalk is government property.”

Nothing happened at that moment. Smith left to take his nephew home. But he returned to the front of Kinsey’s house several minutes later.

Witnesses differed on exactly what happened next. One neighbor said Smith just had his hands balled up and took two steps before the gunfire erupted. But Kinsey testified that Smith — shirtless, and brandishing no weapon — charged at him.

Kinsey fired two bullets, felling him at a range of just a few feet. His body fell on the sidewalk, never having been on the property.

But Kinsey said he fired because he was defending his home. Judge Thomas decided that video — which included Smith saying he would spread Kinsey’s “blood all over the street” — showed “Smith’s relentless determination to violently harm Kinsey.”

He also noted that Kinsey never once attacked Smith. “It was Smith who got violent. It was Smith who became uncontrollably enraged,” the judge said.

The judge also noted that several neighbors “had the opportunity to stop this madness. But rather than intervening to end the violent encounter, the continued to encourage the young men to fight. … During this time, no one called the police. No one said stop!”

Photo:  LaDawna’s pics via Flickr

Cop Gets Job Back After Blaming Failed Cocaine Test On Sex-Aid Cream

By David Ovalle, The Miami Herald

MIAMI — After Miami Beach Police Detective Reinaldo Casas tested positive for cocaine, he insisted that the drug had been unwittingly absorbed into his blood through an erection-enhancing cream he applied to his genitals.

His defense worked.

An arbitrator this week ordered Casas, who was fired last year because of this positive drug test, be reinstated with complete back pay.

“There is no evidence in the record to show that (Casas) was aware the cream contained a controlled substance,” according to the arbitrator’s report released Thursday.

By law, Miami Beach police must comply with the ruling. The decision caps an embarrassing saga for Casas, who was a respected homicide investigator when he was fired in February 2013. Casas had failed a random drug test administered by the police department.

“Having never knowingly used cocaine, I was baffled, perplexed, and confused,” Casas wrote in his grievance.

At a grievance hearing, Casas testified that a buddy, Idilio Godinez, gave him the cream “with the advice that it would help him in his sexual liaisons.”

Godinez testified that he got the sex-enhancement cream from “an old Cuban guy” as a gift for giving him some political campaign signs. Godinez claimed he did not know what was in the cream, but had tried it himself and it worked.

The substance, which resembled Vaseline, was contained in a series of unmarked purple containers and appeared to be homemade.

The city insisted that Casas’ story was “incredible” and he should have known what he was ingesting his body. The arbitrator disagreed and ordered Casas returned to duty with back pay — he earns $74,745.84 a year.

Photo via WikiCommons

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Ex-Miami Beach Cop Gets 18 Months In ATV Joyride Case

By David Ovalle, The Miami Herald

MIAMI — Derick Kuilan, the ex-Miami Beach cop convicted of running over two beach-goers during a joyride on a police all-terrain vehicle, was sentenced to 18 months in prison on Thursday.

“Many people will have to live with the consequences of your actions,” Miami-Dade Circuit Judge Marisa Tinkler Mendez told him. “No one is above the law.”

The fired police officer, who has been jailed since his conviction last month, had faced up to five years in prison.

Kuilan, 33, made national news when he took a bride-to-be on a joyride in July 2011. Just before the accident, Kuilan — mugging for the camera with a too-cool sneer — took a photo with a bachelorette party at the Clevelander hotel nightclub, an image that became notorious.

Prosecutors said Kuilan was drunk as he recklessly rocketed down the South Beach sand with the woman, his headlights off. The heavy vehicle ran ran over Kitzie Nicanor and Luis Almonte, friends who had walked out on the sand to watch the sunrise.

The episode proved to be a major embarrassment for a police department already marred by controversial shootings and officer misconduct.

Almonte suffered a broken femur and now has a metal rod in his leg. Nicanor lost her spleen, suffered a hip injury, and suffered brain trauma.

Both are suing the police department. Jurors acquitted Kuilan of driving while intoxicated, despite evidence that he was legally drunk five hours after the crash.

But he was convicted of reckless driving with serious bodily injury, a third-degree felony punishable by up to five years prison.

Photo via WikiCommons

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Trial Date Set For Justin Bieber DUI Case

By David Ovalle, The Miami Herald

MIAMI — Pop singer Justin Bieber will go to trial on May 5 for driving under the influence, and so far, prosecutors have not offered a plea deal.

Lawyers agreed on the trial date during a brief hearing on Tuesday at Miami-Dade’s criminal courthouse.

Police arrested Bieber onJan. 23after officers said he was drag racing a Lamborghini on a South Beach residential street. His pal, Khalil Sharieff, also a recording artist, was also arrested and is awaiting trial.

Officers said Bieber admitted to smoking marijuana and taking prescription medication, while a urine test showed he had the drugs in his system. A breath test showed Bieber was not legally drunk.

Miami-Dade prosecutor Daniel Diaz-Balart told Miami-Dade County Judge William Altfield that no plea deal has been offered to the Canadian pop star. Defense attorney Roy Black said he will depose witnesses in the case.

The hearing came one day after the celebrity news website TMZ released video of Bieber’s deposition in a South Florida civil case in which he is accused of sending his bodyguard to rough up a photographer.

In the widely viewed video, the troubled singer — who has made headline after headline for his recent antics — appears petulant and standoffish as he answers questions from the plaintiff’s lawyer.

In the criminal case, prosecutors released more than 10 hours of video clips, including Bieber wobbling as he undergoes a sobriety test in the police station, doing push-ups in a cell and urinating for a drug test.

His defense lawyers fought the release of the urinating videos clips. After the media objected, Altfield ordered a black box be placed over his genitalia before the videos were released to the media.

On Tuesday, Black decried the celebrity paparazzi culture — and the public records laws in Florida — that have made Bieber’s life miserable under the scrutiny.

“There is no protection for someone like Justin,” Black told a gaggle of reporters after Tuesday’s hearing.

AFP Photo/Joe Raedle

Public Can See Bieber Urinating, But With Blacked-Out Parts

By David Ovalle, The Miami Herald

MIAMI — The public can see the last of the videos of Justin Bieber at the Miami Beach police station — but not without some creative editing.

Two video clips, which show Bieber urinating while in a holding cell following his arrest for DUI, will be redacted to “shade or blacken” out images of his private parts, a Miami-Dade judge ruled Tuesday.

Bieber, though a worldwide celebrity whose every move is followed by the media, still enjoys a right to privacy while in police custody, he said.

“He has not lost his expectation of dignity, and that’s what’s most important here,” Miami-Dade County Judge Bill Altfield told lawyers in court Tuesday.

Three other clips reviewed by the judge will be released to the media in the coming days, while a judge will work with a technician to redact images that “depict or appear” to depict Bieber’s privates in the two others.

Bieber, 20, was arrested in January for DUI after officers said he was drag racing a Lamborghini on a residential road in South Beach. He admitted to smoking marijuana and taking prescription pain killers, according to police.

Last week, more than 10 hours of police station videos were released by prosecutors, including clips of the troubled singer wobbling while walking a white line during a sobriety test inside the police station.

But his defense team has argued that five of the clips were inappropriate for release, even under Florida’s liberal public records law that makes more evidence in a criminal case open to the media.

Lawyers for the media, including the Miami Herald, said that Bieber’s genitalia can be blacked out but the videos must be released under the law.

Also on Tuesday, the judge scheduled another hearing for next week, when lawyers will set a possible trial date. Bieber’s attorney, Roy Black, waived the singer’s right to a speedy trial.

AFP Photo/Joe Raedle

Police Video Shows Justin Bieber Stumbling Slightly After DUI Arrest

By David Ovalle, The Miami Herald

MIAMI — One of the surveillance videos of Justin Bieber released Wednesday shows the singer slightly stumbling as he tries to walk a white line at the Miami Beach police station shortly after his arrest for driving under the influence.

The clip was one of more than 10 hours of footage, released by prosecutors as part of the criminal case against the Canadian bad-boy pop singer.

The video shows Bieber, in a black-hooded sweatshirt, wobbling a bit as he walks a white line as part of a sobriety test inside a detention area of Miami Beach police headquarters. Seated nearby, also in a hooded sweatshirt, appears to be Khalil Sharieff, a 19-year-old recording artist who was arrested along with Bieber last month.

Prosecutors released the videos, on nine CDs, to a line of reporters who paid $135 each for the evidence. The release of the videos came one day after Bieber’s defense team said it would not object to prosecutors releasing more than 10-plus hours of video footage — with the exception of five video clips that may show Bieber urinating at the Miami Beach police station.

Officers arrested Bieber on Jan. 23 on a charge of driving under the influence. Officers accuse Bieber, 19, of drag racing in a high-powered Lamborghini on a street closed off by his security team.

According to police, the pop star admitted to smoking marijuana and taking prescription medication, and a urine analysis showed he tested positive for marijuana and Xanax.

Under Florida’s liberal public records law, most evidence in a criminal case can be released to the media once it has been turned over to the defense team.

At a hearing last week, Bieber’s legal team insisted that several clips, which showed Bieber urinating for a drug test, should be exempt from public view.

“No reason why the media should make a spectacle of that event, even if it happens to be someone who is high profile,” said one of his attorneys, Howard Srebnick.

Lawyers for the media, including the Miami Herald, insist that reporters aren’t out to air Bieber’s genitalia, but simply to protect the public’s right to evidence under Florida law.

Judge William Altfield will view the disputed videos, and review more court filings, before making a decision on March 4.

AFP Photo/Joe Raedle