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Criminal Mischief Charge Thrown Out of Court


In State of Florida vs. TB-S, 94-2663-MM, the nineteen (19) year old Defendant was charged with Criminal Mischief, a second degree misdemeanor under Florida law. Some would consider it a ‘minor’ crime, as the statutory maximimum penalty provided is “only” sixty (60) days in the County Jail, Six (6) months probation, and a Five-hundred-dollar ($500.00) fine.

It was no “minor” crime to TB-S, who was terrified by the prospect of being incarcerated with older, more violent, serious offenders at the infamous St. Lucie County Jail.

In a rare strategic move, Board Certified Criminal Trial Lawyer Jonathan “Jay” Kirschner waived his client’s right to a trial by jury, in favor of a “bench” trial. (A trial where the Trial Judge is the jury).

Jay Kirschner had a secret.

The relatively inexperienced prosecutor, Kirschner surmised, would not be “up to speed” on the complex and ever-changing Corpus Delicti rule.

Because even though the Defendant had confessed to the crime as alleged, Kirschner new that there was no evidence other than the Defendant’s own lengthy statements. Kirschner likewise knew that the Judge was familiar with the rule, because Jay and the Judge had tried many cases against one another, and were well aware of each other’s strengths and the Judges’ weaknesses.

The young, impetuous Assistant State Attorney made his lame attempt at a “dramatic” opening statement. Kirschner waived (meaning he deferred his right to make any opening statement until the State had rested it’s case).

The ASA called his first and only witness, a seasoned law enforcement professional. When the direct examination developed to the point of the State seeking to admit testimony of the Defendant’s statements admitting the crime, Kirschner was on his feet. “Objection your Honor……Corpus Delicti”, said the experienced crimnal defense lawyer.

The Judge looked ponderously at the State’s representative, and asked, “Counsellor, do you have a response?”. The young prosecutor began blithering a confused, nearly incoherent answer. It was clear he had no earthly idea what “corpus deliciti” meant.

The Trial Judge (a former prosecutor himself) frowned and shook his head slowly back and forth. “Objection Sustained”.

The ASA tried another question of the law enforcement officer. “Same Objection”, said Kirschner, springing once again to his feet.

“Sustained”, responded the Judge.

And so it went. On several additonal occasions, the Prosecutor attempted to get the testimony into evidence, and each time he was blocked by the relentless Defense Attorney.

The State ultimately rested its case, and Kirschner promptly moved for “Judgment of Acquittal”, arguing the State had not even presented enough evidence to allow the trial to continue a moment more.

The Judge signed the Judgment of Not Guilty. TB-S walked out of the courtroom a free man.

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