Legal Blogs of Brian Silber Esq - Attorney & TV Legal Analyst

Abusive Judge Berates then Jails 9 Year Old Girl

July 10, 2015 By Brian Silber

I want to be clear about something. I HATE judges like this lady. She acted like a bully, she was utterly biased toward one side to the point where she should have been recused, and she abused her position of authority to beat up on three children – one as young as 9. Courtroom experiences like this make lawyers hate the practice of law, hate judges, hate the judicial system and dream of walking out on their practices to sell flip flops in Costa Rica (thats for you Danny Rosenberg… hehe!).

Unfortunately for the judge at the center of this debacle, she was dealing with tough Israeli kids who aren’t going to let themselves be bullied – especially when they know they didn’t do anything wrong.

Specifically, I’m talking about Judge Lisa Gorcyca, of Oakland County, Michigan, in the matter of Maya Tsimhoni v. Omer Tsimhoni… which is a bitter divorce case riddled with allegations of parental kidnapping, domestic violence by the father against the mother, and three children ages 15, 10, and 9 who have been caught in the middle for the past five years.

What Happened to the Tsimhoni Children?

In her own words, Judge Gorcyca ordered the Tsimhoni children – Liam 15, Rowi 10, Natalie 9, to “have a relationship” with their father and “to talk” to their father. To be clear, this wasn’t a suggestion or some friendly advice. It was an actual order from the judge.

Except that these kids are completely estranged from their father. According to 15 year old Liam, he does not want anything to do with his father because he claims his father is violent and he has seen his father hit his mother.

On June 24, Judge Gorcyca brought these three children into her courtroom – because they haven’t been through enough after 5 years of acrimonious divorce – and literally GRILLED them like they were criminals testifying in a murder trial. Here are some excerpts from the transcript of the Tsimhoni hearing:

LIAM TSIMHONI (Age 15): Okay, so I — I do apologize if I — I didn’t understand that the rules of the — like the — with — with — like apologize to whatever I did to you, but I do not apologize for — for not talking to him because I have a reason for that and that’s because he’s violent and he — I saw him hit my mom and I’m not gonna talk to him.

JUDGE GORCYCA: All right. Well, the court finds you in direct contempt. I ordered you to have a healthy relationship with your father… I’m ordering you to spend the rest of the summer — and we’ll review it when school starts, and you may be going to school there. So you’re going to be — I’m ordering you to Children’s Village. Is there anything you’d like to say about that?

LIAM TSIMHONI (Age 15): I didn’t do anything wrong.

JUDGE GORCYCA: No, you did. I ordered you to talk to your father. You chose not to talk to your father. You defied a direct court order. It’s direct contempt to I’m finding you guilty of civil contempt.

LIAM TSIMHONI (Age 15): But he was the one that… How come — I thought there was like rules when — rules for like not, you know, not hitting someone, why am I going to the —

JUDGE GORCYCA: I ordered you — I will say this again, and apparently you’re — you’re suppose to have a high IQ, which I’m doubting right now because of the way you act, you’re very defiant, you have no manners, I ordered you to have a relationship with your dadder — with your dad… Your father is well liked and loved by the community, his co-workers, his family, his colleagues. You, young man, have it wrong. I think your father is a great man who has gone through hoops for you you have a relationship with you. You are in contempt and are going to live in Children’s Village… You may stay there until you graduate from high school.

So much can be said about this interaction. First of all, the judge’s job is to make rulings about custody and child support. Not act as relationship police for the Tsimhoni family. This is especially so when a child reports to the court that he has witnessed domestic violence in the home. I don’t know about you, but he seems to have verbalized a pretty good reason for not wanting to talk to his father.

At the same time, it is clear from her comments, that Judge Gorcyca is clearly biased in favor of the Dad. She believes he’s a great man, that he’s loved by the community, and that he has done wonderful things.

But it gets worse. Here are some more brief excerpts where Judge Gorcyca continues to berate and mentally mess with this kid:

JUDGE GORCYCA (to Liam Tsimhoni): …you need to do research on Charlie Manson and the cult that he has… you have bought yourself living in Children’s Village, going to the bathroom in public, and maybe summer school.

Who talks to children like that? Especially when you are not the parent?

Judge Gorcyca then ordered that Liam is not allowed to have any contact with his mother or any member of her family while he is incarcerated. The only visitation he can have is from his father, his therapist, his attorney, and anyone his dad chooses to bring in. Clearly, this is a very one-sided ruling in favor of the father.

Judge Gorcyca then turned her attention to Rowie, age 10.

During this encounter, the poor kid was forced to apologize for his behavior and regurgitate a prepared script to his dad to the effect of “Dad, the Judge wanted me to talk to you so here is something about myself. I enjoy soccer and I hope to be on the soccer team.”

When I read that, I felt like he was some POW marched in front of a “court” and forced to confess his crimes against the People’s Communist Republic of Whatever and read from a prepared script about how great he’s being treated while in captivity and why America is this great satan.

Of course the circumstances and the words are different, but what this judge doesn’t realize is that marching a 10 year old before a court to confess his sins and read off some bullshit to his dad, after 5 years of hellish divorce, is absolutely traumatizing.

After holding off on a decision about Rowie, Judge Gorcyca turned her attention to 9 year old Natalie.

This lovely interaction kicked off with 9 year old Natalie’s lawyer throwing her under the bus before the judge interacted with Rowie. I couldn’t believe it when I read it. Here’s how the lawyer opened up:

MS. COOK: …Your Honor, I’ve had an opportunity to talk to Natalie and told her the consequences of not being respectful to the court and to court orders, and told her what Children’s Village was like, which I have a very good acquaintance with, and told her my best legal advice would be for her to apologize for whatever she did. I don’t have a complete narrative on everything she’s done, and shes absolutely refusing to cooperate even with me.

WTF? How is 9 year old Natalie even supposed to comprehend what is meant by the terms “my best legal advice.” Really, people? This child is supposed to know what that means and make an informed decision? Can she even dress herself in the morning? Would you trust her alone with matches? Or a gun? Or to drive you home from a bar?

What the hell is wrong with these people?

I am MORE disappointed with the shitty lawyering in this case than even the abusive judge. If I was representing these kids in court I would be standing on the table screaming at the top of my lungs.

In 25 pages of transcript I saw the word “objection” uttered ONE TIME by one lawyer. Not one of them argued in favor of their client. Not one of them stood up to that judge or fought back. They all gave in and fed those kids to the lion.

These people aren’t lawyers. They are cowards and it makes me sick.

I have fought hard in the courtroom for 15 years and I would rather go down as a hero who himself was held in contempt before I went home knowing my 9 year old little girl client was taken into custody.

Later in the transcript Judge Gorcyca took to berating Natalie, threatened her with jail, and even told her that she would have to use the toilet in front of other people.

As an aside, I’m wondering how this judge would sentence a sex offender who uttered the same words to a 9 year old girl.

The Real Issue

While the rulings in this case are unusual, the judge’s behavior is one I have seen countless times before. It happens mostly when judges are frustrated. It happens when judges get too close to a case and when their rational brain is overtaken by their emotional one.

This behavior patterns is best described as a toxic mix of ego, frustration, and the power to make people eat it – even kids.

I don’t know how they educate judges in Michigan, but in Florida judges are taught to take a self-imposed timeout when they feel that frustration begin to boil over. Its very simple – when you feel that pulse rise and know you are about to do or say something you might regret, you simply WALK OFF THE BENCH. Take ten, have a glass of water, pace in your chambers and curse outload. Then return to the lives you will be effecting in the courtroom once you have cooled off.

In this case, Judge Gorcyca failed in her duty by failing to control herself. This lead to a systemic breakdown when the lawyers failed to do their job too.

I have news for you… if you are a trial attorney who has never been threatened with contempt, then you are not doing your job. Our clients do not hire us to agree with the judge. Our clients do not hire us to play nice in court and apologize.

Obviously there is a place for manners and grace. When a lawyer does or says something wrong, he/she should own up to it. I have apologized in court to judges countless times. No one faults you for being human.

But in this case, the lawyers cowered to the judge and they didn’t fight for these kids… and that makes me sick.

Other Issues

It is clear from reading the transcript that Judge Gorcyca is biased toward the father in this case. While she berates the mother and describes her as brainwashing the children, she describes the father as a great man who is loved by the community. She then orders that 15 year old Liam cannot have contact with his mother or anyone in her family while he is locked up. Yet she orders that the dad and anyone in the dad’s family can have contact with him.

In other words, this judge lost her role as an impartial decision maker.

She took a side at some point in time. When that happens she needs to realize it and recuse herself… and if she doesn’t, for GODSAKES, the lawyers have got to stand up, open their mouths, and make a motion. If the motion to recuse is denied, then APPEAL it.

I also take issue with Judge Gorcyca’s role in all this. She isn’t the relationship police. While she is certainly there to rule on matters relating to custody and child support, if the kids do not want anything to do with their father, that is their prerogative. Additionally, if you are going to put the onus on any party to have a relationship, YOU PUT IT ON THE DAD – not the 9, 10, and 15 year old kids!

Has she considered that these kids are acting out because they are hurting real bad on the inside? Maybe dad needs to earn their trust again? Maybe dad needs to make amends in a manner that is satisfactory to them.

Divorce doesn’t end for children when they leave the courthouse. They live with it 24/7. It sits with them at the kitchen table. Its spoken in front of them in the living room. It is next to them in school and it runs with them on the playground. They can hear mom discuss “the divorce” with her family and friends and while they try to shut it out, they cant – because they are just kids.

I am so offended by what this judge did because she ignored their reality as children.

I will also add that I know I do not know every detail of this case and I am 100% sure these tough Israeli kids were more than mouthy to this judge. I am equally sure mom has done her job to sway them against the father.

What else is new in family court? This is what happens in divorce. While this may be an extreme case, it still must be handled the right way. Not the crazy way.

Finally, I will add that the judge seems to have made two overt legal errors, beyond an abuse of her discretion. First, she immediatley held the children in contempt and sentenced them without a formal contempt hearing where their attorneys had the opportunity to be prepared and mount a defense. Before a person can be held in contempt, they have the right to a Due Process hearing.

Second, I don’t know the law in Michigan, but in Florida, each act of contempt is punishable my a maximum of 180 days in the county jail. In the case of Liam, Judge Gorcyca threatened to incarcerate him at the juvenile facility for the next three years. He would have been better off getting arrested for a felony.

In other words, it appears as though she erred in the duration of the punishment for contempt and she did so in two ways. First, she articulated that it may last for years. Second, she never put a finite end to it. She left it open ended and depending on the progression of the children’s forced relationship with their father.

The whole thing is a mess.

Conclusion

By the way, you know how I know I’m right? Its because the judge has already back-peddled. According to the most recent news reports, following Judge Gorcyca’s horrible national press (btw she is an elected official whose re-election depends heavily on positive public opinion), she has ordered the children removed from the juvenile detention center and sent to summer camp.

At the end of the day, I strongly suspect this a judge that intimidates those that appear before her. I don’t know her personally, I have never been in her courtroom, and I may be 100% wrong about that suspicion.

BUT – in my experience, that is what I have seen in jurisdictions and courtrooms where the attorneys are afraid to fight. But the truth is, the attorneys are hired guns, they are the warrior class in modern society, and if a fight is whats needed to prevent an injustice – like the incarceration of a 9 year old girl – then its time to man up and take the hits when they come.

Ultimately, while the judge made very poor rulings in this case, I ultimately blame the attorneys for not fighting back.

UPDATE: Like I Said He Would… Magnum P.I. Settled.

July 10, 2015 By Brian Silber

Well that was quick. Two days ago we reported on Tom Selleck’s recent water debacle with the Calleguas Municipal Water District in Ventura County, California. In a nutshell, it was alleged that a water truck siphoned off water from a municipal hydrant and then delivered the water to Selleck’s ranch and avocado farm located in Hidden Valley. Private investigators working for the Calleguas Municipal Water District allegedly observed this activity on multiple occasions.

This was a problem because Selleck’s ranch is located in a different water district. In light of California’s great drought, where residents are asked to cut back by as much as 25% of their water consumption, this mini-drama caused a very embarrassing snafu for the Hollywood star.

What made it so bad, was the alleged ignorance of cease and desist letters at a time when literally every drop of water is counted. Ultimately, the Calleguas Municipal Water District filed a legal action in court.

As I predicted, Selleck has entered into a settlement with he Calleguas Municipal Water District. The details of this settlement are not yet known, but I bet it includes two things: 1) Compensation for the water; and 2) An agreement to never do it again.

Once this matter goes to court, the judge will review the terms of the agreement and make a ruling that I expect will ultimately result in the case being dismissed.

As bad as this drama has made Tom Selleck look, kudos to him for handling this the right way and quickly. We all mess up, but sometimes its how we handle our mess ups is what separates the men from the boys. I am glad to see Magnum P.I. man up, yet again…

How Do Police Investigate Child Pornography Cases?

July 9, 2015 By Brian Silber

First and foremost, child pornography investigations almost always start online. Remember the good ole’ days of Napster? Remember how it was taken down? Remember when Metallica and Dr. Dre sued Napster?

Well, Napster may be gone, but there are thousands of copycat websites out there – and they are still in business. However, these sites not only provide users with bootleg copies of movies, software, music, and the like, but they are also home to some of the seediest, low down and dirty parts of the internet. It is these dark neighborhoods where child pornography lives.

These Napster copycats are also places where pedophiles go to acquire and trade child pornography. They do so by downloading file-sharing software and creating an anonymous account.

However, law enforcement is privy to these activities. This is the part where the Internet Crimes Against Children task force comes into play… referred to in law enforcement and legal circles as “ICAC”.

Step One

To nab those who peddle in child pornography, ICAC will typically launch an investigation in one of two ways. The first is to assume a known child pornographer’s profile. This happens when someone is caught and ICAC gains access to their profile following a prosecution. The second occurs when ICAC acts in an undercover capacity by assuming the identity of someone trying to obtain child pornography – much like the DEA does with drugs.

Step Two

Regardless of the method used, the next step involves interacting with other child pornographers. Whether these are people who are downloading child pornography or sharing it from their own libraries, ICAC will identify which profiles are downloading known child pornography files.

But how do they know what files are child porn and what are not?

Good question – the answer lies in the pervasiveness of child pornography on the internet. I hate that my career has educated me about this topic to this level, but the reality is that there are literally thousands of child pornography files that circulate around and around the internet. The same images and videos of the same exploited childen pop up all over the world. There are so many of these same images and videos circulating, that ICAC is able to identify them by their file name or key words associated with their search.

Just how drug dealers and drug users have street names for certain types of drugs… molly, mary jane, X, H, smack, china white, snow, trees, etc… pedophiles have code and lingo that they use to identify certain types of child pornography. ICAC takes advantage of these terms, lingos, and known file names to identify when a user downloads or shares child pornography.

Step Three

Once a profile has been identified as either downloading or sharing child pornography, ICAC will use commercially available software to identify the IP address of that user’s profile… and YES this is 100% legal and they lawfully do it in EVERY case.

Once an IP address has been identified, ICAC will issue a subpeona to the internet service provider who owns that IP to obtain account information. This will include the name, address, phone number, and other information of the person or entity whose account was associated with that particular IP address on the specific date in question.

Step Four

Once an suspect profile has been identified as downloading or sharing child pornography, an IP address has been ascertained, and customer biographical data obtained, the next step is to get a search warrant from a judge. However, this is where a little more investigating is necessary.

The primary question that needs to be answered is whether or not the internet account holder is likely the same person who is downloading or sharing the child pornography. In many cases, a mom or dad or roommate may be the account holder for a residence where many people use the same internet service. There are other possibilities as well – maybe a pedophile is using a corporate internet account at work or maybe he is accessing a wifi network that isn’t password protected. There are a few possibilities.

Before a search warrant is applied for, ICAC has to do a little homework. They usually start with pulling driver license issue of the name on the account and cross referencing it with the address on the account. Hopefully there is a match. Next, they will run a criminal history… has this person been in trouble before, does he have a history of sex offenses, does he have a violent background, or is he a first time offender?

Depending on what comes back, ICAC has a few options. The first is always surveillance – especially in the case of a single guy, living alone, whose driver license address and name match that on the internet service provider account. ICAC puts “eyes on target” to confirm what they already suspect.

If they feel they have enough to go to a judge, ICAC will then apply for a search warrant. In this application, ICAC will detail what they have done in their investigation and why they have probable cause to believe that there is contraband in the target location. A judge will review the application and decide whether or not their suspicion is justified. If the judge agrees that there is enough evidence to support a search, he/she will issue a search warrant for the target location.

In the alternative, if ICAC cannot develop enough evidence to get a search warrant, they may do a “knock and talk” to see if the residents at the target location will consent to a search without a warrant. Unbelievably, people agree to this all the time.

Step Five

Regardless of whether they get a search warrant or obtain consent to search from a resident, the next step is to get their hands on all the electronic devices. Especially in cases like Jared Fogle’s, where they are executing a search warrant, ICAC will show up with its digital forensics people.

These folks will use specialized electronic equipment to take a mirror image of electronic devices. When that is not possible, law enforcement may seize any object they suspect may have evidence in it – such as cd’s, sim cards, usb sticks, laptops, desktops, iPads, cell phones, whatever. The name of the game is to collect evidence.

Step Six

In this stage of an ICAC investigation, digital forensic experts will evaluate the seized items to determine if they have any child pornography on them. This will also include recovery of deleted items. If child pornography is found, the next step is for prosecutors to start putting a case together. This can include a single charge for every image or video or it can be one comprehensive charge that covers all. Prosecutors will often times file enough charges to expose the defendant to a lifetime in prison, but hold back on ALL the charges to see if the suspect actually wants to go to trial or take a plea bargain. If its trial, then the gloves come off and prosecutors go for the maximum number of convictions possible.

STOP! Jared May Be Innocent… Keep Eating at Subway!

July 9, 2015 By Brian Silber

Maybe, maybe not. Is Jared Fogle into kiddie porn? Should we hate him and only eat at Jimmy John’s? Should we give Jared the benefit of the doubt? But what about the fact that the F-B-freaking-I executed a search warrant on his home – ostensibly in relation to the child pornography prosecution of the guy who used to head up Jared’s charitable foundation.

Let me be the first to say that Jared may not be involved in any criminal activity at all and may in fact be an innocent casualty of someone else’s misdeeds. While he may have had evidence in his home that the FBI was looking for, it does not mean he was aware of its existence.

When you first heard of this case, did you ask How do police investigate child pornography cases? If so, you may have the skepticism needed to see why Jared may not be guilty at all – because you are definitely onto something. In fact, you may be asking some of the same questions I am.

What does the FBI search mean for Jared Fogle and Subway?

As a criminal defense attorney and former prosecutor who has handled many child pornography cases, two distinct things light up in my mind about the Jared situation. First, law enforcement has not clarified whether or not he is a target of their investigation. The second, is that the search is being done at Jared’s home a few months after the head of his charitable foundation was charged with possession of child pornography and production of child pornography.

On the one hand, people’s first reaction is that Jared must have been involved. Why else would the FBI search his home? More importantly, why isn’t the FBI clarifying that he is not a suspect?

On the other hand, Jared may simply be in possession of computers, electronic equipment, and electronic storage devices (cd’s and usb drives) that the former head of his charity was given to use for legitimate work purposes – but which were abused by the former head.

Because I have seen this in other cases, I suspect that Jared may have had no idea what his former employee was up to (because people who download kiddie porn at work rarely let their bosses and co-workers know – crazy, right?!?)… He also may have had no idea that the former employee abused his position of trust and hid child pornography on computers and other devices that he was given to do his job.

Equally, Jared may keep some of these devices in his home in the normal course of running the charity. Countless business owners in this country have their garage full of work related equipment or maintain their own home offices that are cluttered with work usb sticks, dvd’s, cell phones, laptops, iPads, and the like.

However, the one unanswered question that bothers me most is: Why hasn’t the FBI clarified that Jared is not a suspect?

The answer may be because they themselves do not yet know the answer.

As the FBI conducts a digital forensic analysis on the computers and other devices it seized from Jared’s home, it will look for logons, email activity, and other indicators (such as online banking, Facebook, and Twitter activity) to determine who was using the computer at the time child pornography files were accessed, opened, modified, deleted, etc. – assuming child pornography is even found on those devices in the first place. Remember, all computers have an internal clock and calendar and keep detailed records of who, what, how, and when the computer was used.

If that evidence points to Jared, then he may become a target. If the evidence points solely at the former charity head, Jared will not become a target. If the evidence is inconclusive, then Jared will not become a target.

Other considerations include where and how child pornography may be stored on the computers and devices. If they find a computer labeled “Jared’s Computer” where Jared has clearly accessed his own email, online banking, Facebook, Twitter, and the like, and it clearly has child pornography on it, say for example in large numbers on the home screen, then Jared will likely become a target.

If child pornography is found on a shared computer in a hidden, encrypted file, given some weird innocuous name that was accessed at times that do not connect with times Jared accessed his email, online banking, Facebook, Twitter, or the like, then Jared may not be in trouble.

Last Issue

There is one last thing that does bother me a lot about this case… that is, how did the FBI come to search Jared’s home? Why do they think he has evidence in his house? What has led them to that conclusion?

At this point there are only questions and no answers.

Is the former head of the charity cooperating with investigators? Did he accuse Jared of being involved or having his own child pornography? Did he admit to investigators that he stored child porn on computers that are now stored at Jared’s house?

In the alternative, did the FBI discover a digital cookie crumb trail that led to Jared’s computers? Such as Dropbox sharing where child porn was transferred from the former charity head’s computer to a Dropbox account down to Jared’s computer? Did the two men email child porn to each other? Did an IP address associated with Jared’s computer download child porn from a known child porn sharing website?

The possibilities are seemingly endless, but the question still remains.

When more about this case comes to light, we will be able to clarify what is really going on. In the mean time, I suggest there is good reason to believe that Jared may in fact be completely innocent. Then again, maybe I am wrong…

Is Magnum P.I. Stealing Water in California?

July 8, 2015 By Brian Silber

Wow… so this is a weird one. We all have heard of the massive drought plaguing California. Residents are tasked with cutting water use by as much as 25%, farms are suffering, lakes are at an all time low… all we need now is a massive wildfire to tear through the driest areas.

But not for Tom Selleck… the famous actor who portrayed Magnum P.I. in the 1980’s. As a side-note, I always wondered why they never did a remake of this one… Hollywood has been remaking everything… even Schwarzenegger is coming back as the Terminator.

Anyway, here’s the scoop: According to news sources, Selleck owns a large ranch and avocado farm in California’s Hidden Valley. Due to their geographic location, the ranch and farm are part of the Hidden Valley Municipal Water District. However, according to real private investigators hired by the Calleguas Municipal Water District, a white truck took water from a hydrant located in Calleguas and delivered the water to Selleck’s ranch in Hidden Valley. According to Calleguas Municipal Water District, this happened more than a dozen times since 2013.

The Real Issue

The real issue in this case concerns knowledge. You need to realize that uber-wealthy people who live on 60 acre ranches do not manage the day to day operations of their properties. They have staff for this. In a sense, sprawling estates like the one owned by Selleck are like a corporation. Selleck may be the CEO, but that does not mean he has personal knowledge of every single thing that goes on at the property.

However, this is where Selleck may have trouble – according to news reports, Calleguas Municipal Water District tried to get Selleck to stop. They even sent cease and desist letters to his home and another address linked to the property.

Even if he could have initially claimed ignorance, the law will “impute” knowledge to him based on the cease and desist letters. Meaning, once the water district sent him formal written notice that this was going on and that it needed to stop, the law will hold him accountable, regardless of whether he actually knew or not. At that point, the law presumes he knew or should have known and will hold him accountable.

At the end of the day, I expect this matter to settle out of court on two points. First, Selleck will likely agree to pay the water district for the value of the water taken and for attorneys fees. Second, Selleck will agree to immediately and permanently refrain from taking water again in the future.

The Alternate Real Issue

All of the above sounds right, except for one thing: a third party may be to blame. Selleck may have hired a management company to maintain his home, including its water needs. Alternatively, he may have hired a third party to supply his home with water. Unbeknownst to him, this third party may have acted unlawfully without Selleck’s knowledge or consent.

In other words, a third party may have acted unilaterally.

That said, we still are left with the “notice issue” – meaning all those pesty cease and desist letters Selleck had been getting. The only way he could realistically blame a third party would be if he in fact gave those notices to the third party, told them to stop, did everything you would expect a reasonable person in his position to do – yet they persisted without him knowing.

Admittedly, this is probably the most unlikely possibility, but it is a possibility nonetheless.

If this is the case, Selleck may have a claim against that third party. When a person is sued but another party is to blame, that person can then turn around and sue that party. If Selleck is not responsible, but a third party that he contracted with is the culprit, he may need to sue them.

Conclusion

In the end, this case is more embarrassing for Selleck than anything else. In light of California’ drought, it makes him look like a privileged rich guy who doesn’t have to follow the rules. Whether he knew or didn’t know, was involved or not involved, the bottom line is that he will likely be writing a check to make this disappear soon.

HIV+ Man Accused of Raping Miami Child

July 7, 2015 By Brian Silber

Gamalier Lopez Vargas is accused of raping a child while knowing he was HIV positive. It gets worse – the child is a family member of his. The case is presently assigned to the Honorable Christina Miranda in Miami, Florida. Since this is a developing case, details are sketchy at this point. However, there is one very important piece of information that is being publicized. According to news reports, Lopez Vargas told detectives that the victim knew he was HIV positive.

As a criminal lawyer, this seemed like an odd comment to me. It didn’t sit right. Why make such a statement to investigators? After all, isn’t it a tacit admission that he had sex with the minor AND that he knew he was infected when he did it?

So I did a little digging…

Pursuant to Florida Statute 775.0877, it is an affirmative defense to the crime of criminal transmission of HIV if the infected victim knew the offender was HIV positive. For those who don’t know, an affirmative defense is like a justification for taking a certain action. For example, in a murder case, an affirmative defense might be that a person acted in self-defense when they killed the supposed victim – and in this case, maybe the underage girl did know (whether this makes a difference in the case of minor is another discussion for another article).

HOWEVER, having litigated countless sex offender cases, let me tell you the real issue. One of the primary commonalities that I find with sex offenders is the extreme amount of DENIAL that they live in.

The reality in their minds is very different from ours. There is always some twisted logic to their actions, to the justifications, to the whacked-out defense theories they come up, and the like.

Lawyers and other professionals who work with sex offenders know exactly what I am talking about.

The Real Issue

So getting back to my point – of all the things to possibly say to police, why did Lopez Vargas say the girl knew he was infected with HIV? The reason is based on an insight into the sex offender mind… when presented with the allegation that he had sex with a minor while being HIV+, his brain reacted to the HIV+ part. This is because a real sex offender has that denial thing going on about the sex part.

They live in this bizarre duality. On the one hand, they can live very normal lives, be educated, have jobs, and look normal. They can be our school teachers, coaches, religious figures, police officers, bus drivers, doctors, uncles, whatever. They wake up in the morning, shower, dress themselves and go to work at their 9-5 job. They pay their bills, take vacations, and eat Thanksgiving turkey.

Except they have this compulsion. This obsession. This skewed, scary, and bizarre child-sex thing going on… and they can’t control it. BUT – to them its acceptable. Its normal to them. Its what they do – even when its horrible, violent, and not consensual.

In their minds, there is an explanation that makes sense to them – that of course leaves the rest of us puzzled and angry when we hear it… like Broward man who blamed Colombian culture when he got caught having sex with child prostitutes.

In this case, I strongly suspect Lopez Vargas made that comment because the sex was somehow justified in his mind. It was the HIV+ transmission that he felt guilt about. Being HIV+ is a status that has nothing to do with his sexual preference for children. He has no psychological thing going on with HIV. In fact, he probably has normal reactions to that status.

But the fact that he tacitly admitted to raping the child in an effort to defend himself against an allegation that he criminally transmitted HIV tells me a lot about his character.

It also tells me a second thing:

He knew very clearly what he was doing was wrong.

I may be mistaken, but Lopez Vargas does not look like a legal scholar to me. I don’t think he made law review at Harvard. He also doesn’t look like a member of the Florida Legislature. So it makes me wonder, in an effort to respond to the allegation of criminal HIV transmission, how did he know to answer that the girl knew of his status?

I don’t believe in coincidence and I don’t believe this guy knows anything about law. Except he knows one thing: the affirmative defense.

To know this, he had to self-educate about the law. He had to inquire, either online or to someone else who knows. Before committing this offense, he knew it would be a defense to claim that the victim knew his status. That makes this crime even worse.

Prosecutors refer to such actions as “consciousness of guilt” and such evidence can be used at trial to get a conviction and during sentencing to get a hefty sentence.

In any event, this is a case we will be following as it develops through the courthouse.

“Filter Bandit” Wanted by FBI Miami for Bank Robbery

July 7, 2015 By Brian Silber

Since August 2014, Broward County has been hit by a string of bank robberies. In each case, the robber concealed his face, although sometimes only partially. In each case, the bank robber is seen on surveillance footage dark-colored pants and a dark-colored hooded sweatshirt. He was given the name “Filter Bandit” because in some of the robberies, he is seen covering his face with a filter mask – the kind you might see for sale at Home Depot.

Since last summer, the following banks have been hit:

BB&T – June 16, 2015
Davie, Florida

SunTrust – March 31, 2015
Coral Springs, Florida

Chase Bank – March 27, 2015
Tamarac, Florida

TD Bank – March 16, 2015
Tamarac, Florida

TD Bank – February 14, 2015
Plantation, Florida

TD Bank – January 7, 2015
Plantation, Florida

Chase Bank – August 9, 2014
Plantation, Florida

[Read more...]

US to Open Embassy in Cuba; The Great Thaw Begins

July 1, 2015 By Brian Silber

As if June couldn’t be capable of even yet greater historic change in the United States! In an unbelievable shift in foreign policy for both nations, each has agreed to open embassies in the other. A huge press conference is announced for 11:00am this morning from the Rose Garden of the White House.

What happens next will be one of the most unbelievable things we will see in our lifetime: Cuba Rising!

We are about to witness a sea change of geo-politics and business. The World’s greatest economy is about to add a new neighbor and business partner to its repertoire. But Cuba is no regular partner – she is a neighbor.

Cuba is as close to America as Canadian and Mexican population centers. In Florida, Cuban Americans are as much a part of American culture and society as Mexican Americans and Canadian Americans.

Bringing Cuba into the American economic fold is far more significant than just any other nation. Cuba is our neighbor and she shares geographic and social proximity to us. But what does this mean?

This means a massive shift in law and business. This means new trade deals loom on the horizon. This means we can get real Cuban cigars on Main Street and Cubans can drink Diet Coke while listening to Taylor Swift on iPhones.

The Legal Implications

It also means there is a new frontier in law. One that will be full of import/export legal questions, contracts and breach of contracts, dispute resolution, people getting arrested, people getting injured… the list goes on and on.

Most importantly, we can only hope that with new relations, new economics, and new interactions, each nation’s culture will rub off on the other (no I am NOT referring to Communism for you haters out there). The more America thats in Cuba, the more America that is in Cuba.

Culturally, we are a nation of laws. One of the most profound legal implications of normalized relations with Cuba may be the influence on Cuba of how we do things. I say this only because our system for successful macro-economics works. If you want American wealth, it pays to adopt an American system for doing business. Anyone who is interested in this approach, will also be interested in our legal code and how we enter into agreement and resolve disagreement – in all of its varietals.

With time, with commerce, with interaction, with agreements and disagreements that are resolved using the rule of law – America slowly, but surely creep its way into Cuban culture. With time, I predict this will result in greater Civil Rights on the Communist island, greater freedoms, greater productivity, and more happiness.

Law and how it effects society will be the bloodline that Westernizes a nation that I believe will prove to be one of America’s greatest allies.

Personally, I can’t wait to try the mojitos…

The Constitution Promises Liberty to All Within Its Reach

June 27, 2015 By Brian Silber

Let freedom ring! Today, America shined bright. Today, America proclaimed to posterity, once again, why she is a morally great nation. Today, pause, America created a more perfect union.

Justice Kennedy delivered the opinion of the Court in Obergefell v. Hodges. He also delivered the final blow to one of the remaining Civil Rights battlegrounds in the Global war for human liberty – Gay Marriage Equality.

Whether you are gay, straight, not sure, or damning everyone to hell – equal protection under the law keeps you free. The very foundation of Western civilization depends on it. This article explains why…

When we say we aren’t like other nations where people are burnt alive, decapitated, drowned in a cage, or flayed because they proclaim the wrong politics, say things that enlighten others against dogma, or make love to someone unapproved by clergy – we are able to do so because we have a vehicle in our legal code that delivers freedom like a gushing artery delivers blood and deflects oppression like a shield.

That vehicle is called Equal Protection. You can read it in the 14th Amendment to the United States Constitution.

Oh yes – an “amendment.” An add-on to the living legal code from a time when we as a nation realized we had to change something to straighten a crooked thing, right a wrong, moralize a corruption.

Understanding Today’s Ruling: The Real Issues

Even though upholding the right to gay marriage may seem obvious to many or perplexing and incomprehensible to others – it pays to understand how the U.S. Supreme Court came to its conclusion… because it was not arbitrary or made up.

Today’s ruling addressed two basic questions:

The first, presented by the cases from Michigan and Kentucky, is whether the 14th Amendment requires a state to license a marriage between two people of the same sex.
The second, presented by cases from Ohio, Tennessee, and, Kentucky, is whether the 14th Amendment requires a State to recognize a same-sex marriage licensed and performed in a State which does grant that right.

Before I proceed with answers and explanations, I have questions of my own. Why did James Obergefell have to hurt? Why was he made to suffer and feel pain and indignity? Why did the State of Ohio, full of “love thy neighbor” Christians, Sunday churchgoers, charitable contributors, and good Samaritans, have to cause this man sorrow within sorrow?

Don’t know what I’m talking about, do you?

The first case before the USSC was the matter concerning James Obergefell and his late husband, John Arthur. You see, John didn’t die from AIDS. He didn’t die because a lightening bolt struck him down from the sky. He died from amyotrophic lateral sclerosis, also known as ALS – the same disease that afflicts Stephen Hawking and caused a Facebook induced ice shortage last summer.

Three weeks before John died, the couple took a medical flight to Maryland, where same-sex marriage was legal at the time. John was so debilitated from ALS that they never even left the aircraft… the wedding ceremony was performed in the airplane as it literally sat parked on the Maryland tarmac. The couple then returned to Ohio.

After John passed, the State of Ohio refused to name James as John’s surviving spouse on the death certificate – thus compelling them to remain strangers, even in death. James described this as a pain that was “hurtful for the rest of time.”

Now you may think James was a bit of a drama queen from the comfort of your sofa, office, or wherever you are reading this and sipping a latte, but the man is entitled to his feelings, especially those caused by the State of Ohio following the death of his most beloved.

Rather than comforting the mourning, the State of Ohio shoved a stake in his heart and twisted it. They kicked him hard when he was down, broken, and in wretched, incurable pain… moments where 10 Commandments style love thy neighbor compassion is supposed to kick in hardcore.

In my upbringing as a Jewish Man, the Torah teaches us to give love to people when they are down, to aid them when they hurt, and to see them through the mourning process with gentle, loving kindness.

If James had a vagina instead of penis that is exactly what would have happened. But he does not.

Unfortunately for the State of Ohio, James is a man and he is endowed with the very rocks that they relied upon to kick him when he was down. But he didn’t stay down for long. He stood up and fought back: He sued the State of Ohio.

I admire James Obergefell. I respect a man who grabs the ankle of the foot on his neck, stands up, and pushes back.

So here we are:

Was it unconstitutional for Ohio to have a legal system where James and John were denied the ability to marry?
Was it unconstitutional for Ohio to deny recognition of James’ and John’s marriage in Maryland?

“Under the Due Process Clause of the 14th Amendment, no State shall “deprive any person of life, liberty, or property, without due process of law.” The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights. Most importantly, these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.”

As a premise, it is extremely important to understand that we have a living legal system. It is not written in stone to die an arcane and boring death. Rather, our civilization is premised on concepts that have evolving applications as humans live on. One such concept is liberty. Another is self-determination. A third is the concept of free choice.

“The generations that wrote and ratified the Bill of Rights and the 14h Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”

“When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.” That claim originates in society: In workplaces, in social clubs, on the streets, at cocktail parties, and ultimately – in our courthouses.

That principle applies here. “If rights were defined solely by those who exercised them in the past, then there would never be any progression in the law that coincides with society’s progression in wisdom and knowledge. For instance, slavery would never have been outlawed. Women would have never been granted the right to vote. Handicapped persons would be left to fend for themselves – so what if they can’t wheel their annoying chair into a public bathroom.

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Firm Overview

June 20, 2015 By Brian Silber

Florida Litigation Attorneys is located in downtown Fort Lauderdale, Florida, one block from the Broward County Main Courthouse. Our practice focuses on criminal defense and personal injury litigation. Our law firm was founded by attorney Brian Silber in 2008. Attorney Silber is a former prosecutor who served over three years at the Broward County State Attorney’s Office. He is also a legal analyst who appears regularly on networks like Fox News, CNN, Headline News, and others.

Attorney Silber is also a seasoned trial lawyer who has been practicing law for nearly 15 years and who has brought more than 100 cases to trial as lead counsel. He is A/V rated by Martindale-Hubbell, has been named a SuperLawyer, and is a Top 40 under 40 attorney as well.

At Florida Litigation Attorneys we strive to obtain the best results possible for every client in every case. We appreciate the sensitive nature of our work and respect the impact it has not only on our clients, but on their families and loved ones as well.

If you have a sensitive legal matter that requires help, contact us for a free initial consultation.