I rarely watch horror movies, but I’ve seen enough to know that most of the plots focus on young white kids IMG_3441doing something stupid.  I define stupid as entering a creepy abandon house for no good reason.  Many stand up comics have good rants on the horror film behavior of black people versus white people.  A complete list of these differences was teased out by comedian Orlando Jones, and it can be found here.  For example, Orlando believes that black folks would never “adopt a kid who turns out to be the devil”, or “eat grilled chicken”, and these are common activities for white horror film stars.   Eddie Murphy believes that horror films will never star black folks because if “there’s a ghost in the house, [black people] get the fuck out”.  The movie would last 30 seconds.  No needless investigations of what’s lurking downstairs.  (See Eddie Murphy’s  “Delirious“, it’s worth a viewing even if it means you forget about reading the rest of this, it’s just that good)

There’s some great horror movies out there known as “found footage” films.  The idea is fairly simple: documentary filmmakers disappear under mysterious circumstances, and someone finds their footage.  The Blair Witch Project is one such film.  UCF alum created a fictional account of three film students who disappear after entering a forest to investigate a local Blair Witch legend.  All that’s left of the crew is their film footage.  Spooky.

The found footage genre owes its origins to Ruggero Deodato’s 1980 shocker Cannibal Holocaust.  By 1980’s standards, this horror film was so “real”, so controversial, that its creator was arrested soon after it’s premiere in Italy (and yes, the films were seized as well, what great free promotion!).  The plot was simple: Indiana Jones types travel to study remote cannibal tribes in the jungle, and they never return.  When they don’t return, investigators re-visit the jungle to investigate their disappearance, and as per the formula–they find the missing crew’s shocking footage.  Let’s face it, if someone is dumb enough to hang out with a whole jungle tribe of Jeffery Dahmers, going missing cannot be a good thing. Cannibal Holocaust contains animal mutilation, murder, rape, and absolutely grotesque images.  Eventually, the murder charges against the film’s creator were dropped after several of the “dead” actors appeared on TV to explain how they shot the film.  The film grossed $200,000,000, and that was in 1980.  Yes, you heard me.  The present value of $200 million from 1980 is, approximately, one zillion dollars.  There was only one film to beat out Cannibal Holocaust in 1980–Spielberg’s E.T. The Extraterrestrial.

Believe it or not, our Florida case for today involves found footage (of sorts).  In State v. Tumlinson, Mr. Tumlinson was charged with lewd or lascivious molestation of a child under twelve years of age “after law enforcement discovered and then questioned Tumlinson about his personal journal entries that described sexual contact with a child, J.T.  Law enforcement was contacted after Tumlinson’s former roommates found the troubling journal entries Tumlinson left behind at their home.”  (Fla. 2nd DCA 2016, Case NO. 2D15-1814).  (You didn’t think I could transition from Cannibal Holocaust to a Florida case, did you?  I’m not proud of the segue here, but we’ve got to talk about the law at some point) Continue Reading

Have you ever seen a fist fight live?  I hate fist fights, and violence in general (not liking violence is a bold statement, I know, I’m really going out on a limb here)commandments.   It is painful to watch such raw  violence.   And, do you know what happens to the guy who gets knocked down after taking one too many fists to the face?  The fight is over, right?  Wrong.  The guy on the ground will now be the proud recipient of several kicks to the head and body.  The cliche is true, you shouldn’t kick a man while he’s down.

Kicking someone while they’re down comes in many flavors, not all of them are physical.  Today we’re going to review a beat down taken by a probationer at the hands of her probation officer, a prosecutor, and last but not least–an “honorable” judge gets a few licks in that would make a UFC fighter wince.

Our story begins at a motel, the kind that rents by the week.  The folks who live in these places are just one dollar away from homelessness.  Suffice to say, you have to be down on your luck to live in such conditions, and you should be well armed to visit (at least the ones in Central Florida).  Ms. Charles was in just that sort of bind.  She was on probation, and living in a motel with her two young children.  Rent came due, and Ms. Charles didn’t have it, so she was evicted.  At this point, she was homeless with two kids and no money.  Many prison terms start in this fashion, and Ms. Charles was no exception to the rule.  Charles v. State, 2016 Fla.App. LEXIS 16217 (Fla. 4th DCA 2016). Continue Reading

Is there any value in holding onto a particular point of view?  fish

Children seem free to change their mind, but adults face a bit more peer pressure to remain consistent.  I think children have this issue right; we should feel a bit more freedom to change our position if need be.  Often, we don’t give our positions any sort of deep analysis, and once we’re confronted with a situation that requires some bit of thought, we end up changing our mind anyway.

Nothing wrong with changing your mind, unless you’re in politics.  A change of heart will open the flood gates of “flip-flop” negative campaign ads.   In reality, we’d probably be far better off with politicians that don’t have their mind made up about every single topic on Earth (but, they wouldn’t sound very smart, would they?  The Katie Couric’s of the world would have a field day with such intellectual thoughtfulness, editing the interview to look like a series of “gotcha” moments–it would get ugly).

Also, I can see “changing one’s position” as being a problem for professors and researchers.  These folks may be funded to do research consistent with their previously published works.  Imagine the disappointment of the folks funding the research when they discover a “change in position”.   If you’re going to change your mind, you better have tenure (possibly one of the benefits of tenure?).   Tom Petty once quipped that the music industry is never satisfied, because when he releases a new album the world says “Oh, this is the same old Tom Petty stuff he’s been churning out for decades”.  And, if Petty does something completely different, they’ll say “This artist has Jumped the Shark, abandoned the rock that made him successful.”  Basically, you can’t win.  Continue Reading

[This is Part 2 of my cut & paste Kindle highlights of the wonderful book Fooled by Randomness, by Nassim ponce inletTaleb]

Observational data is important to science, and Fooled By Randomness  by Nassim Taleb cautions us that we should not take scientific data so seriously.  We live in a random world, and data can only get us so far in life.

To understand the white swan problem, let’s start with the basics (actually, we’ll end with the basics too, but you know what I mean):

At some point in history, a biologist of the binocular sort (other biologists are of the microscope sort, right?) decided to prove once and for all that “all swans are white”.

He started proving “all swans are white” by observing lots of swans, and documenting his findings.  The first year, he observed 1,000 swans, and all of them were white.  Even with a thousand observations under his belt, he was not ready to publish his results in “Nature”, as more data was needed.  So, he observes another 3,000 swans the next year.  Same result–all the swans were white.   The question is, how much data must this biologist collect before proving that all swans are white?  And, as this biologist collects more and more data, how much more confident should we be in the theory?  Will another 10,000 observations of white swans make us pretty sure that all swans are white?  How about another 100,000 observations of white swans?    Continue Reading

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Every 23 seconds, an attorney is asked: “What are my chances of winning?”

Some attorneys play along with this game, especially if it’s a slow month, and throw out a number, like: “You have an 90% chance of winning”.  Most people call several attorneys, and the attorney who is most confident (throwing out numbers, say, in the 90% range)  may end up getting the case.  Confidence is a good for business, right?  But, are such numbers honest?

After 23 years of defending criminal cases (my web people love statements that brag about decades of practice, I will get a star beside my name for this), I am here to tell you that such numbers are pulled out of thin air.  I know, it’s shocking to hear that an attorney could utter words that stretch the truth.  Pull yourself together and read on, because other professions are just as guilty of spitting out misleading/unsubstantiated numbers as attorneys.

Financial advisers and scientists are at the top of the misleading numbers list.  Yes, this is why you don’t believe every infomercial that claims “studies have shown xyz 99% effective”.  But the problem here runs deeper than shady marketing practices, the problem involves what sort of conclusions scientists and financial analysts should be permitted to draw from their data.  To understand problems with data interpretation, we’re going to take a journey through my Kindle highlights from an excellent book by Nassim Taleb entitled Fooled By Randomness.   The book explains just how difficult it is to answer the very simple question “What are my chances”. Continue Reading

Dear Readers, IMG_3197[1]

Have any of you visited a career counselor?  These folks take a look at your personality via long questionnaires, and make career recommendations based upon the results.  Let’s say you have no personality and don’t like people–you could become a doctor.  I’ve encountered several with rather poor bedside manners.  I’ve had friends whose fantasy career path involves gynecology, and these guys are the very folks you do not want to see on the other end of those stirrups.  (I know what you’re thinking, a few worn out cliches this early in the article?  Sorry)

I’m pretending to not enjoy bawdy humor because that’s the classy thing to do, but really, Eddie Murphy’s Delirious and RAW are timeless classics, and you can throw early Chris Rock into this mix as well.   Unfortunately, my “guy friends” have worn out one liners like “That’s What She Said”.  Who could possibly be more annoying than that friend who adds “In Bed” to everything you say?  The friend who knows everything.  Like a politician who can solve every problem facing humanity, I’m annoyed by people who think they’ve got it all figured out.  I’m not just annoyed, I find it boring, and boring is worse than annoying.  For those of you who have it all figured out–where’s your sense of adventure?   What’s worse than someone who has it all figured out?  Someone whose body language exudes such.  Often, knowing it all radiates a certain condescension, the likes of which you only see when male models flare their nostrils as they strike a pose.

Anyway, my career advice to those of you who know it all and have it all figured out  — DON’T BECOME A JUDGE.   Continue Reading

Laws need not be logical to be legal.  For example, does it make any sense that a motorcycle cop can issue a citation for failing to wear a seat belt?  What motorcycle has seat trafficbelts?   Does it make any sense to charge an 18 year old with the crime of “Possession of Alcohol By a Minor”, yet its legal for this same 18 year old to become an porn star on her 18th birthday?  Drinking a Miller Lite is illegal, but porn acting is perfectly legal.  I suppose she could act like she’s drinking beer while filming her scenes, but they’d have to fill the bottle with apple juice for the youngster.  Or, at age 18, you can join the armed forces and, potentially, kill people in defense of our country.  But, you can’t drink a beer.  Sorry, that’s a crime.  Doesn’t seem right, does it?  I think that, if you’re old enough to defend my freedom, have a beer.  I’m buying.  Anyway, let’s try to transition into the somewhat less exciting topic of driving while license suspended (DWLS).  Smooth segue, right?

Driving on a suspended license (DWLS) is a progressive disease.  It starts small, but often grows into a prison term.  Here’s the pathology:  a citizen gets caught driving without a valid license.  A cop issues a citation. But, as luck would have it, the person gets caught driving a second time without a valid license.  Then this same person gets caught driving a third time.  Once a driver has three convictions for driving on a suspended license, you have now officially caught the attention of the Department of Motor Vehicles (and that, my friends, is never a good thing).  At this stage, the DMV will issue what is called a Habitual Traffic Offender (HTO) suspension for five years.  If a driver is caught a fourth time driving on an HTO suspension–this is a felony offense, carrying up to five years prison.   Continue Reading

What if you were just told that you’re about to hear a “shocking, unethical, and unprofessional” story?  First, the word “shocking” sounds like something straight out of The National Enquirer, and handshakeevery week this tabloid claims to have a new, shocking story (which then has the effect of making it seem not so shocking).  Is it shocking that a vegan celebrity was caught eating ribs at 4 Rivers?  No, its not, because the BBQ at 4 Rivers is so good, it’s intrinsic deliciousness has the power to convert vegans to the other team.  Now, maybe vegan-to-ribs is a bit of a stretch, vegans may start with cheese or egg long before they lick the meat off a slab of ribs.  If CNN or Fox News tells you something is “shocking” and “unethical”, you’ll immediately think that some politician was caught with “his” pants down (yes, I said “his”, because it seems that women don’t get caught in such compromising positions–why is that?).  Today, our shocking story doesn’t come from a tabloid, or cable news, it comes from The Florida Supreme Court.

In The Florida Bar v. Adams and Filthaut, the Florida Supreme Court called the behavior of these lawyers “the most shocking, unethical, and unprofessional as has ever been brought before this Court”.   (Fla. No. SC14-1054, August 25, 2016, you may find the opinion by clicking here).

It all began in Tampa with a lawsuit between two local DJ’s.    After the first day of trial, the lawyers for each side retired for the evening.   A paralegal for the defense attorneys (Adams, Filthaut, and Diaco) spotted the opposing lawyer (Campbell) at a bar in a nearby steakhouse.  She called her lawyer bosses to let them know what she’d found.  After a flurry of communications between the paralegal and the three defense lawyers, a plan hatched to have their female paralegal flirt with opposing counsel (he didn’t recognize her as being part of the other side).  She flirted, lied about where she worked (obviously), and bought him drinks–enough drinks to dip him into a DUI situation.  And, a DUI arrest was the goal here.  To aid in the plan, attorney Filthaut reached out to a cop friend Sargent Fernandez to post up outside the steakhouse to await his big lawyer arrest.  Everything was in place for when Campbell would drive home. Continue Reading

“The smallest deed is better than the greatest intention.”  — John Burroughspunch3

“All that counts in life is intention.” — Andrea Bucelli

There’s plenty of opinions out there on what, exactly, we mean by the word “intention”.  A new age guru may give you one answer, and folks who deny humans have any sort of free will may tell you the word is meaningless.  Scientists are late comers to the “intention” game.   Experiments conducted at Princeton, Cambridge, and the University of Arizona all point to the fact that our intentions can physically affect the outside world (See Lynne McTaggart’s book “The Intention Experiment”).  How can our intentions affect physical things?  No one really knows the mechanism, but the effects can be measured,  much in the way Newton had no idea how gravity pulls an apple from a tree, yet he could still observe and measure the effect. Intention has even crept into physics.  Quantum physicists have analyzed the role our conscious intentions play in the behavior of entangled particles, and how our intentions effect the double-slit experiment (Richard Feynman calls this experiment the greatest physics experiment ever).  Still, no one is really sure why things work this way–but quantum mechanics does work, with amazing accuracy.  That being said, I cringe whenever QM (sounds like I know more when I abbreviate, right?) is brought up because it’s become such a cliche.

It is odd to see human “intention” influence the outcome of a scientific experiment.  Such intervention defies common sense.  Common sense dictates that people will not be sent to prison for bad acts they did not intend to commit.  Makes sense, right?  Well, common sense also tells us that the earth isn’t moving through space (the ground doesn’t feel like it’s moving, does it?).  Common sense can betray you, and that’s particularly true of the law.  Don’t apply common sense to a collection of laws written by people that, on average, have little common sense.  I have numerous examples of how your tax payer dollars have been wasted on crimes never intended to be committed.  For example, years ago I had a client that was waiting tables at a local restaurant.  He went to his co-worker’s 19th birthday party.  Cute girl.  Single guy.  Co-workers.  Yes, after the birthday party, they had sex.  Some time later, he was arrested for lewd act on a minor.  Yes, the girl just turned 16.  We call this statutory rape.  Turns out, she was lying about her age so she could serve alcohol as part of her waitress duties.  The big candles on her cake announcing a “HAPPY NINETEENTH!” were no defense to the charge.  Same goes for child porn.  Should you be unlucky enough to click on “Grannies Gone Wild” yet somehow find yourself diverted to much younger folks–you may go to prison for something you never intended to view.  Technically, you don’t even have to view it, if the 0’s & 1’s show up somewhere on your hard drive, you can land in prison.   Now, should we punish acts void of criminal intent?  Are there some criminal accusations for which our good intentions can provide a defense? Continue Reading

We expect our experience with American court systems to be fair, in the same way that we expect our experience with the Chinese court system to be unfair.

GnR, final song Friday night, Paradise City

GnR, final song Friday night, Paradise City

To that end, it is the appeal process that can transform an unfair outcome into something more reasonable.  There are many ways to appeal, and there are many different things that can be appealed in a criminal case.  Today, were going to take a look at how to approach a harsh sentence after a guilty verdict.

Every defense attorney who has conducted a jury trial understands the risks involved.   Many defendants do not understand the risks, even though we do our best to explain such.  Let’s face it, nothing can truly prepare a client for a sentence that, say, will last for the rest of their life.  The problem is that plea offers can be very enticing, especially to the innocent.  That being said, what innocent person wants to cop a plea?  Or, what innocent person wants to spend the rest of their life in jail?

I was introduced to this concept very early in my defense career.  Back in the mid 1990’s,  my friend was defending a man that had, supposedly, pistol whipped his (now) ex-wife.  He insisted that he didn’t do it.  The most serious charge arising out of these accusations was aggravated battery with a firearm.  It carries a maximum of 30 years in prison, and that’s with no bullets ever leaving the chamber.   My friend got him an excellent plea offer–one month of probation, on a misdemeanor battery.  Wow.  Do you think this guy took the offer?  (Of course not, that’s why I’m telling you this story) Continue Reading