The Charges - Why Not First Degree?

[KateB]

It does appear that there is another way to levy 1st degree murder charges without a grand jury. I've been meaning to go back to this transcript & review what SMS told us when he was talking with Tricia the first time. I think this direct file may be the exception to the requirement of a grand jury but I'm guessing.

http://www.websleuths.com/forums/sh...Interview-with-Sheriff-Mike-Scott-on-9-9-2015

10:05
SMS: That is a possibility in Florida, speaking generally. Now, not so much specific to this case, in terms of what I think may or may not happen. Obiously there are two steps of very strict responsibility. One is the law enforcement's obligation to investigate crime, reach a level of what we call probable cause. And then, of course, make arrests. The second critical phase is obviously the prosecution. Their burden is, of course even higher than probable cause, it's beyond a reasonable doubt. And the prosecution, we call it the state attorney here, state attorney's office, district attorney in many places. But the prosecuting authorities ultimately would make a decision like that. In terms, in whether or not A case, again, generally speaking, A case in Florida, goes before the grand jury or whether or not they file directly. Direct file on these specific charges and immediately put the person through the prosecutorial stage. I can't speculate on what might happen with this case other to say generally, that that is a possibility.

 

[Eileen730]

Maybe the 2nd degree w/o premeditation charges ARE the charges.

 

[creepingskills]

It does appear that there is another way to levy 1st degree murder charges without a grand jury. I've been meaning to go back to this transcript & review what SMS told us when he was talking with Tricia the first time. I think this direct file may be the exception to the requirement of a grand jury but I'm guessing.

http://www.websleuths.com/forums/sh...Interview-with-Sheriff-Mike-Scott-on-9-9-2015

10:05
SMS: That is a possibility in Florida, speaking generally. Now, not so much specific to this case, in terms of what I think may or may not happen. Obiously there are two steps of very strict responsibility. One is the law enforcement's obligation to investigate crime, reach a level of what we call probable cause. And then, of course, make arrests. The second critical phase is obviously the prosecution. Their burden is, of course even higher than probable cause, it's beyond a reasonable doubt. And the prosecution, we call it the state attorney here, state attorney's office, district attorney in many places. But the prosecuting authorities ultimately would make a decision like that. In terms, in whether or not A case, again, generally speaking, A case in Florida, goes before the grand jury or whether or not they file directly. Direct file on these specific charges and immediately put the person through the prosecutorial stage. I can't speculate on what might happen with this case other to say generally, that that is a possibility.

Hate to be the bearer of (possible) bad news, but I think SMS was making a general comment that in Florida, it is up to the prosecution to impanel a grand jury to review the evidence with the hope an indictment is returned.

Florida GJ Instructions, Paragraph 2.8
"Our state constitution provides that no person may be tried for a capital crime except on presentment and indictment by a grand jury. A capital crime is one that is punishable by death. Although you have the authority to do so, the court recommends that a grand jury not investigate criminal matters other than capital cases unless they are of such public importance that they justify the additional time and expense of investigation by the grand jury." http://www.floridasupremecourt.org/jury_instructions/chapters/chapter31/flgrandjuryinstructions.rtf

 

[Wyle_E_Coyote]

Hate to be the bearer of (possible) bad news, but I think SMS was making a general comment that in Florida, it is up to the prosecution to impanel a grand jury to review the evidence with the hope an indictment is returned.

Florida GJ Instructions, Paragraph 2.8
"Our state constitution provides that no person may be tried for a capital crime except on presentment and indictment by a grand jury. A capital crime is one that is punishable by death. Although you have the authority to do so, the court recommends that a grand jury not investigate criminal matters other than capital cases unless they are of such public importance that they justify the additional time and expense of investigation by the grand jury." http://www.floridasupremecourt.org/jury_instructions/chapters/chapter31/flgrandjuryinstructions.rtf

BBM.

Hmmm... if the prosecutor decides not to seek the death penalty, would 1st degree murder then not be a capital offense requiring a grand jury?

Sent from my SM-G900V using Tapatalk

 

[Satchie]

Maybe the 2nd degree w/o premeditation charges ARE the charges

Perhaps. But in the Baby Chance case, a document was released detailing exactly how the crime was committed/by whom. I think in the Sievers case there is a lot of maneuvering that is primarily intended to keep the evidence hidden from whomever has yet to be arrested.

 

[Satchie]

Hmmm... if the prosecutor decides not to seek the death penalty, would 1st degree murder then not be a capital offense requiring a grand jury?

A capital felony is one where the death sentence is possible, it doesn't automatically result in the death sentence, since sentencing follows conviction. Once the judge & jury bring in a conviction of 1st degree murder, they can then decide not to apply the death penalty, in which case the sentence will be life in prison without parole.

Upon conviction or adjudication of guilt of a defendant of a capital felony, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment as authorized by s. 775.082. The proceeding shall be conducted by the trial judge before the trial jury as soon as practicable.

http://www.flsenate.gov/Laws/Statutes/2011/921.141

 

[Maxine2U]

No mention of needing a grand jury indictment as the reason for the murder 2 charges, which is how folks are explaining it in this thread.

OK I'm new and don't know what I'm talking about so be gentle with me - Isn't this info from a sort of "analyst", random defense attorney in FL? I mean, he doesn't have insider knowledge to the Sievers case is my point, so... I don't know, it seems to me like there's still a good chance a grand jury could be called and they'll file first degree. Especially since they are hopefully not done arresting folks.

 

[Satchie]

I just looked into the baby Chance case, and both parents have been charged with first degree felony murder, not 1st degree premeditated murder. As discussed above, the 1st degree felony murder does not imply premeditation, only commission of a crime, in this case probably assault.

So I agree, the lawyer consulted by Wink news was not sufficiently familiar with either case to be making any comments!

Detectives with the Sarasota County Sheriff’s Office have charged Joseph Walsh, 36, of North Port, with first-degree felony murder

Read more here: http://www.bradenton.com/news/local/crime/article40483293.html#storylink=cpy

 

[Satchie]

It's also occurred to me, it seems very unlikely CWW would be charged with only 2nd degree murder in Florida, unless it can be proved TS invited him into her house, and they were getting along well until they got into an argument, which got out of hand and CWW killed her.

As long as it was CWW who broke into the house, and in the course of the break-in, intentionally or not, TS was killed, under Florida law he will be charged with 1st degree felony murder.

 

[atthelake]

:waiting: for AZL... OR... is Richard Hornsby still a member and posting here as he is a verified Florida Atty.

:couch: :lurk: :sweep:

:escape: to another thread in the meantime...

:daisy:

ETA: Mentioning Richard Hornsby

 

[creepingskills]

No mention of needing a grand jury indictment as the reason for the murder 2 charges, which is how folks are explaining it in this thread.

I hope everyone here understands that CWW & JR were charged are second degree and no indictment was issued. A grand jury indictment is required to upgrade the charges to first degree.

BBM.

Hmmm... if the prosecutor decides not to seek the death penalty, would 1st degree murder then not be a capital offense requiring a grand jury?

Sent from my SM-G900V using Tapatalk

JMO
First degree murder charge would still be a capital offense requiring GJ indictment, even with the death penalty off the table.

 

[creepingskills]

Here's a case where the hitman was charged with second degree murder, and testified against the person ordering the hit who was charged with first degree murder.:thinking:

"For prosecutors, hired gunman Kopp was the key witness. He previously pleaded guilty to second-degree murder and accepted a 30-year prison term.

On the stand, Kopp told how he committed the shootings and said he was hired by Sutton, who gave him a gun, showed him how to break into the house and gave the green-light on Aug. 22, 2004.

Mitchell Kopp, his father, who was key in convincing his son to cooperate with prosecutors, stayed for the verdict Wednesday and tearfully shook Melissa Sutton's hand after the verdict."
http://articles.sun-sentinel.com/2010-07-22/news/fl-gables-son-killing-20100715_1_melissa-sutton-christopher-sutton-garrett-kopp

 

[KateB]

Curtis Wayne Wright charged with murder of Dr. Teresa Sievers
8:34 a.m. EST November 17, 2015
http://www.news-press.com/story/new...-charges-postponement-granted-state/75879260/
LATEST UPDATE

The state has filed second-degree murder charges against Curtis Wayne Wright Jr. for the killing of Dr. Teresa Sievers.

The charges were filed late Monday, said State Attorney Samantha Syoen.

She added "The delay in filing charges was because the office needed the weekend to go through all the evidence."

Suspect in Sievers case charged with murder
Posted: 9:17 AM, Nov 17, 2015 Updated: 2:15 PM, Nov 17, 2015
http://www.fox4now.com/news/suspect-in-sievers-case-charged-with-murder

According to The State Attorney's Office, they filed charges against Wright Monday afternoon for second degree murder, which is punishable by up to life in prison.

The filing states that "between June 28, 2015 and June 29, 2015, Curtis Wayne Wright did kill and murder Teresa Sievers by bludgeoning or inflicting severe, blunt force trauma."

 

[KateB]

Man held in homicide of Teresa Sievers officially charged with second-degree murder
November 17, 2015
http://www.naplesnews.com/news/crim...degree-murder-24be2341-5b60-21-351015581.html

State Attorney's Office Spokeswoman Samantha Syoen declined to comment on whether prosecutors brought the case to a grand jury for a possible first-degree murder indictment. Grand jury proceedings are secret under Florida law.

Prosecutors could still seek a first-degree murder indictment after an arraignment. In the recent Southwest Florida murder cases of Jacob Cherry and Jose Suazo, who were charged in separate killings, the grand jury indicted each defendant six months after their arrest. In the Lee County case of Dustin Jaye, who was arrested in July 2012 on a murder charge, an indictment was returned in October 2012.

more at link.

 

[atthelake]

Arraignment for Sievers killing suspect Wright delayed
November 16, 2015 Posted: 3:52 p.m
http://www.naplesnews.com/news/crim...killing-suspect-Wright-delayed-350701691.html

Prosecutors asked for an extension to file formal charges against Wright on Monday, which marked the 33rd day since Wright was taken into custody. Had the extension not been granted, Florida law would have required Wright be released on his own recognizance on his 33rd day of incarceration, meaning he wouldn’t have to post a bond.

Wright’s lawyer asked to have him released, though such an occurrence was highly unlikely given the violent and serious nature of the charges. In a request for a seven-day extension, prosecutors said they have been provided with “voluminous” documentation received for the first time on Oct. 30.

It’s still possible that prosecutors are seeking a first-degree murder charge against Wright. That would require an indictment by a grand jury, which adds another step to the process beyond a typical arraignment.

They received voluminous information on October 30th.. Hmmm question for AZL or for our newest member of the Florida Bar



Can they now pull people back in for subpoenas now that they have more information?

And how difficult would it have been to pull the people from Missouri to Florida for the subpoena grand jury testimony? it is my understanding that they have to ask the other state to issue the subpoenas and it takes much more time than if it was in their state ?

I do like that Florida maybe using grand jury ... That they can compel people against their will to testify for the grand jury... and then it locks in people to their testimonies, perhaps against their will .. which they cannot do in a court case iirc .

It is going to be very interesting to see what kind of information they have gotten within the past 3 months...

how much of it is through the secretive grand jury?

 

[AZlawyer]

They received voluminous information on October 30th.. Hmmm question for AZL or for our newest member of the Florida Bar



Can they now pull people back in for subpoenas now that they have more information?

And how difficult would it have been to pull the people from Missouri to Florida for the subpoena grand jury testimony? it is my understanding that they have to ask the other state to issue the subpoenas and it takes much more time than if it was in their state ?

I do like that Florida maybe using grand jury ... That they can compel people against their will to testify for the grand jury... and then it locks in people to their testimonies, perhaps against their will .. which they cannot do in a court case iirc .

It is going to be very interesting to see what kind of information they have gotten within the past 3 months...

how much of it is through the secretive grand jury?

IMO there is no way they convened a grand jury on this case and got a "no" result and had to wait for more information. I suppose having Missouri witnesses might have slowed things down. But the most likely delay is just the normal grand jury delay. They don't convene a new grand jury for every case--they convene ONE grand jury that serves for 6 months at a time. So sometimes there's a backlog if there's a lot of murdering and stuff going on.

And absolutely people can be compelled against their will to testify at trial as well.

 

[atthelake]

IMO there is no way they convened a grand jury on this case and got a "no" result and had to wait for more information. But I suppose having Missouri witnesses might have slowed things down. But the most likely delay is just the normal grand jury delay. They don't convene a new grand jury for every case--they convene ONE grand jury that serves for 6 months at a time. So sometimes there's a backlog if there's a lot of murdering and stuff going on.

And absolutely people can be compelled against their will to testify at trial as well.

Yes ..that was my thought .Not that they had a "no"..yet that the grand jury has not finished yet to meet the deadline and hasn't finished. perhaps they are in the middle of presentation to the sitting GJ and they can call more people from Missouri?

And as to compelling people to testify, I was thinking there was more latitude in a grand jury. For trial they have to have specific reasons/basis for testimony .. but with a grand jury, perhaps they can call them to lay basis /fish more than allowed at trial ? And the prosecutor can make better decision who to call at trial ?

 

[AZlawyer]

Yes ..that was my thought .Not that they had a "no"..yet that the grand jury has not finished yet to meet the deadline and hasn't finished. perhaps they are in the middle of presentation to the sitting GJ and they can call more people from Missouri?

And as to compelling people to testify, I was thinking there was more latitude in a grand jury. For trial they have to have specific reasons/basis for testimony .. but with a grand jury, perhaps they can call them to lay basis /fish more than allowed at trial ? And the prosecutor can make better decision who to call at trial ?

I mean, there's no opposing counsel, so in that sense it's easier for the prosecutor because there's no one around to object.

 

[lstiff]

When I read through the (mounds) of files on the Michael Brown case, I found the GJ process the most interesting. In MO (obviously not the same as FL) the GJ for his case did not meet unless all of them could be there. They all had to commit for a certain amount of time each time they met and they could only meet if all were there. I'm not sure if that is the case in FL but trying to get a group of people to be available at the same time for several days, is probably harder than it sounds. IMO.

 

[No it's not]

When I read through the (mounds) of files on the Michael Brown case, I found the GJ process the most interesting. In MO (obviously not the same as FL) the GJ for his case did not meet unless all of them could be there. They all had to commit for a certain amount of time each time they met and they could only meet if all were there. I'm not sure if that is the case in FL but trying to get a group of people to be available at the same time for several days, is probably harder than it sounds. IMO.

I can tell you, that they are very strict with GJ members here in Florida. If you are a selected member on the GJ and are late, they will call you and they will pick you up, if necessary! You have no transportation, they will pick you up! And the GJ will not commence, before all jurors are present ( unless there is a medical emergency of course or another fundamental excuse for not showing up. A cold or a headache will not do it. Take my word for it.
-Nin