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June 2013 Archives

Attorney Tim Zerillo Talks About the Importance of Increasing Your Uninsured Motorist Coverage to Protect Yourself From Under-Insured Motorists

For more on Zerillo Law, LLC and Tim Zerillo, click here.Timothy E. Zerillo has been included in every edition New England Super Lawyers since 2010, for his Super Lawyers page click here.Timothy E. Zerillo has a 10 out of 10 rating from AVVO.com, for his ratings page, click here

How to Assert Your Right to Silence - Attorney Tim Zerillo Offers a Keychain to Help You Assert Your Right to Silence

Here is a YouTube link to the Video:
http://youtu.be/TKEJEZMVgs8For more on Zerillo Law, LLC and Tim Zerillo, click here.Timothy E. Zerillo has been included in New England Super Lawyers since 2010, for his Super Lawyers page click here.Timothy E. Zerillo has a 10 out of 10 rating from AVVO.com, for his ratings page, click here

3 Car Crash With 2 Fatalities on Route 3 in Augusta - Condolences for Those Who Lost Loved Ones

From www.pressherald.com

Police identify drivers killed in three-car crash on Route 3 in Augusta

From staff reports
AUGUSTA -- Two people are dead after a head-on crash on Route 3 early Monday morning that closed the busy east-west road for several hours.

Augusta Police Deputy Chief Jared Mills said in a news release that both people were alone in their cars when the crash occurred around 7:15 a.m., just east of Fairview Estates on Route 3.
That section of Route 3 had been closed since 7:30 a.m., as police investigated the crash. It was reopened about noon.Mills said an eastbound vehicle apparently crossed into the oncoming lane and hit the rear section of a westbound Togus Police cruiser, then caromed off and hit a second westbound vehicle head-on.
The operator of the vehicle traveling eastbound, Dean James, 45, of China, was transported to Maine General Medical Center in Augusta where he died from his injuries.The driver of the third vehicle heading westbound that was struck head-on, Laura Hall, 46, of Liberty, died at the scene of the crash.The driver of the police cruiser was not injured, Mills said.For more on Zerillo Law, LLC and Tim Zerillo, click here.Timothy E. Zerillo has been included in New England Super Lawyers since 2010, for his Super Lawyers page click here.Timothy E. Zerillo has a 10 out of 10 rating from AVVO.com, for his ratings page, click here

Another Brutal U.S. Supreme Court Decision on the Right to Silence in the Face of Police Interrogation - Salinas v. Texas

Full credit to Tejinder Singh, Details: Salinas v. Texas (Updated 1:30 PM), SCOTUSblog (Jun. 17, 2013, 12:32 PM), http://www.scotusblog.com/2013/06/details-salinas-v-texas/

Salinas v. Texas - decided today.
As almost all Americans who have ever watched television or gone to a movie know, the Supreme Court held in a case called Miranda v. Arizona that a criminal suspect who is in police custody must be advised of his right to remain silent; if the suspect chooses to remain silent, that silence cannot be used against him in a trial.  The question before the Court in this case was whether this protection of silence applies before a suspect is actually arrested.  The defendant in this case, Genevevo Salinas, voluntarily went to the police station, where officers interviewed him about a pair of 1992 murders.  When asked whether a shotgun given to police by his father would match shell casings found at the crime scene, Salinas did not answer.  At his trial for the murders, prosecutors used Salinas's silence as evidence of his guilt; Salinas was convicted and sentenced to twenty years in prison.
Over the years, the lower courts had been divided on whether prosecutors can point to the "precustodial" silence of suspects.  Today the Court resolved that conflict, holding that because Salinas failed to invoke his right to remain silent in response to the officers' questions, his silence was fair game at his trial. The Court reasoned that the privilege against self-incrimination applies only when it is asserted, and that merely remaining silent in response to questions is not enough.
The Court's decision was fractured. Justice Alito wrote for a plurality of the Justices (himself, Chief Justice Roberts, and Justice Kennedy), setting forth the rule that the right to remain silent must be expressly invoked. Justices Thomas (joined by Justice Scalia) concurred only in the result, arguing that even if Salinas had invoked his right to remain silent, he still would have lost because the prosecutor's comments regarding his silence did not compel him to give self-incriminating testimony. These five votes, together, added up to a loss for Salinas, and the rule in Justice Alito's opinion is the controlling rule going forward. Justice Breyer, joined by the remaining three Justices, dissented, arguing that a defendant need not expressly invoke the privilege against self-incrimination.
For more on Zerillo Law, LLC and Tim Zerillo, click here.Timothy E. Zerillo has been included in New England Super Lawyers since 2010, for his Super Lawyers page click here.Timothy E. Zerillo has a 10 out of 10 rating from AVVO.com, for his ratings page, click here.

Important United States Supreme Court Decision Alleyene Regarding Imposition of Mandatory Miniumums

Full credit to Mike Gottlieb, Details: Alleyne v. United States, SCOTUSblog (Jun. 17, 2013, 11:33 AM), http://www.scotusblog.com/2013/06/detailsalleyne-v-united-states/
Alleyne v. United States raised a longstanding controversy in criminal law regarding the method of proof that the Sixth Amendment requires to impose a mandatory minimum sentence.  It has been settled since the Court's 1996 decision in Apprendi v. New Jersey that any facts which increase a criminal defendant's maximum possible sentence are considered "elements" of the criminal offense that must be proved to a jury beyond a reasonable doubt.  In other words, if a statute makes it illegal to sell a drug and authorizes a ten-year maximum sentence for such an offense, but provides for a twenty-year maximum sentence for a sale of a larger quantity of the same drug, the jury rather than the judge must make a finding about the quantity before the twenty-year maximum may be imposed.
In 2002, the Court decided in Harris v. United States that Apprendi did not apply to facts that would increase a defendant's mandatory minimum sentence, and therefore that a judge could constitutionally decide to apply a mandatory minimum sentence on the basis of facts not proven to a jury.  Justice Breyer concurred in part in Harris not because he agreed that Apprendi could be distinguished, but rather because he continued to disagree with Apprendi as a whole and could not "yet accept its rule."
For years, commentators have wondered whether Harris could survive as Apprendi became increasingly settled, and Justice Breyer himself has in the past called into question his vote in Harris.
Alleyne answers this question by overruling Harris
At issue in Alleyne was a seven-year sentence imposed on a defendant for having "brandished" a firearm while "using or carrying [it] during and in relation to a crime of violence."  At trial, the jury found only that the defendant used or carried the firearm, which carries a five-year mandatory minimum sentence.  The judge, relying on Harris, found that the defendant had "brandished" the firearm, and thereby increased the defendant's mandatory minimum sentence to seven years.  In a five-to-four decision by Justice Thomas (joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan), the Court today held that the defendant's seven-year mandatory minimum sentence violated his Sixth Amendment right to trial by jury because the question of brandishing was never submitted to the jury.  The Court's opinion explains that the logic of Apprendi requires a jury to find all facts that fix the penalty range of a crime.  According to the Court, the mandatory minimum is just as important to the statutory range as is the statutory maximum.  The Court made clear that its holding was not designed to limit the discretion of the trial judge in imposing sentences within the range defined by the statutory maximum and mandatory minimum.  The Court therefore vacated Alleyne's sentence and remanded the case for resentencing in line with the jury's verdict.
Justice Breyer, who provided the pivotal fifth vote, concurred in part and in the judgment.  His concurrence reiterates his belief that Apprendi was wrongly decided, but explains that because "Apprendi has now defined the relevant legal regime for an additional decade... the law can no longer tolerate the anomaly that the Apprendi/Harris distinction creates."  Justice Sotomayor's concurrence (joined by Justices Ginsburg and Kagan), argues that overruling Harris is consistent with the principles of stare decisis.  The Chief Justice (joined by Justices Scalia and Kennedy) and Justice Alito each wrote dissents.

For more on Zerillo Law, LLC, click here.

Probate Letters Saying They Are From Tim Zerillo Are Not From Me

Apparently, I have heard from several sources that there are inheritance letters flying around the world claiming they are from Timothy Zerillo.  I am a real lawyer in Portland, Maine USA, but the letters are not from me.  I am pleased to have an online presence, but not pleased that someone is trying to use my credentials to scam people.  I thought I would post this to my blog for anyone looking me up.  Best wishes, Tim Zerillo

Attorney Tim Zerillo Posts a Video Warning That Jail Calls From the Cumberland County Jail and Elsewhere Are Monitored and Recorded

For more on Zerillo Law, LLC and Tim Zerillo, click here.Timothy E. Zerillo has been included in New England Super Lawyers since 2010, for his Super Lawyers page click here.Timothy E. Zerillo has a 10 out of 10 rating from AVVO.com, for his ratings page, click here.

Attorney John Burke Gets Negotiating a Worthless Instrument Case Dismissed

Negotiating a Worthless Instrument Case can be difficult, because often the evidence is merely the bounced check. The mens rea, or mental state, of the person bouncing the check is an element the State must prove, however. The Negotiating a Worthless Instrument Statute states that "the person intentionally issues or negotiates a negotiable instrument knowing that it will not be honored by the maker or drawee." Attorney John Burke of Zerillo Law, LLC handled a felony Negotiating case in Knox County recently. There, the defense was that the bookkeeper actually issued our Client's checks, in which case Attorney Burke argued that there was no mens rea. Attorney Burke was able to negotiate a complete dismissal upon a small restitution repayment. For more on Zerillo Law, LLC, click here.

Supreme Court Upholds Law to Take DNA on Arrest Without Probable Cause

In a holding further eroding the Fourth Amendment, the United States Supreme Court today has upheld a law that allow the police to take your DNA if you are arrested without probable cause.  Here is a summary of the case from www.HuffingtonPost.com.  If you have a criminal case in Maine's Federal or State Courts, call Zerillo Law at 207.775.4255 or visit www.GetZerillo.com.

No. 12-207.
2013 U.S. LEXIS 4165
February 26, 2013, Argued 
June 3, 2013, Decided
Supreme Court: DNA Samples Can Be Taken From Arrestees Without Warrant
By JESSE J. HOLLAND 06/03/13 12:35 PM ET EDT 
WASHINGTON -- A sharply divided Supreme Court on Monday said police can routinely take DNA from people they arrest, equating a DNA cheek swab to other common jailhouse procedures like fingerprinting.
"Taking and analyzing a cheek swab of the arrestee DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment," Justice Anthony Kennedy wrote for the court's five-justice majority.But the four dissenting justices said that the court was allowing a major change in police powers."Make no mistake about it: because of today's decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason," conservative Justice Antonin Scalia said in a sharp dissent which he read aloud in the courtroom. "This will solve some extra crimes, to be sure. But so would taking your DNA when you fly on an airplane - surely the TSA must know the `identity' of the flying public. For that matter, so would taking your children's DNA when they start public school."Twenty-eight states and the federal government now take DNA swabs after arrests. But a Maryland court was one of the first to say that it was illegal for that state to take Alonzo King's DNA without approval from a judge, saying King had "a sufficiently weighty and reasonable expectation of privacy against warrantless, suspicionless searches" under the Fourth Amendment.But the high court's decision reverses that ruling and reinstates King's rape conviction, which came after police took his DNA during an unrelated arrest. Kennedy wrote the decision, and was joined by Chief Justice John Roberts and Justices Samuel Alito, Clarence Thomas and Stephen Breyer. Scalia was joined in his dissent by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.Maryland's DNA collection law only allows police to take DNA from those arrested for serious crimes like murder, rape, assault, burglary and other crimes of violence. In his ruling, Kennedy did not say whether the court's decision limits DNA only to those crimes, but he did note that other states' DNA collection laws differ from Maryland's.Scalia saw that as a flaw. "If you believe that a DNA search will identify someone arrested for bank robbery, you must believe that it will identify someone arrested for running a red light," he said.Getting DNA swabs from criminals is common. All 50 states and the federal government take cheek swabs from convicted criminals to check against federal and state databanks, with the court's blessing. The fight at the Supreme Court was over whether that DNA collection could come before conviction and without a judge issuing a warrant.