Quality Control for Prosecutors - Only In America

flag usa.jpgSometimes, you just have to shake your head and say, "only in America". Take rapper 50 Cent, for example. Curtis Jackson was dealing drugs when he was shot nine times over a measly $5,000 drug deal. 50 Cent is now worth half a billion dollars (maybe more, He sold his share of Vitamin-Water for $300 million). Yes, only in America can a drug dealer leave crime behind and make millions legally. As the song goes, he came from the bottom, to the top--legally--and it is inspiring. Role model? Maybe not. Inspirational? Absolutely. Makes me proud to be an American. Can you think of any other country in which 50 Cent could have used his business intelligence to make himself hundreds of millions legally? No, you can't.

Before I began defending criminal accusations back in 1993, I was an accountant (briefly). Capitalism is a great system, but to work properly public companies must provide the public accurate information. Accountants play an important role in auditing these financial records. Unfortunately, we don't find such important internal controls in State Attorney's offices, at least not here in Florida. So, leave it to the freedom loving people of Texas to come up with a uniquely American way of testing the integrity of their prosecutions. Before we delve into that, let's take a look at another inspiring story.

Michael Phillips entered a plea to 12 years in prison for the hotel rape of a 16 year old girl back in 1990. The teenage girl was staying at the hotel when someone broke into her room and raped her. Michael worked at the hotel, and lived there. The 16 year old girl, who was white, positively identified Michael (who is black) out of a photo lineup. We all know the problems with eyewitness identification. Add to that, the problems of interracial identification. Nonetheless, Michael entered a plea, believing that the jury would not believe his word over a white teenage girl's word, and knowing that a prior burglary conviction would put him in danger of spending decades in prison if he lost at trial. Also, his public defender told him he would be paroled within 4 years, but that didn't happen--he did all 12 years.

Michael is now in poor health, residing at a nursing home at age 57. In May, a few police officers showed up at his nursing home to have a talk. For a guy like Michael, police visits are not a good thing. But this time, the officers blew his mind. They told him that his old case was going to be dropped. Michael knew he was innocent, but he didn't think anyone cared. He was wrong. The prosecutor retested the DNA, and discovered that the DNA found in the 16 year old girl was not his. Instead, the DNA matched another black male staying in the same hotel at the same time as the rape, Lee Marvin Banks (he cannot be prosecuted, it is beyond the Statute of Limitations). That's right, you heard me. The prosecutor retested the DNA--without even being asked.

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The Crusade against Child Pornography Marches On

lens.jpgSome stories make me wonder what is happening to America. Some stories remind me that our government is out of control. This is one such story. This story makes me sick, and I hope you feel the same way. Let's delve right in, because you're not going to believe this.

A 15 year old girl sent her 17 year old boyfriend some sex pics of herself from her iPhone and iPad. The boyfriend reacted in the same way that any 17 year old boy would react--he sent her back a sexy video, involving his aroused penis. I know, this is shocking behavior. This is an outrage! How dare these kids play "spin the bottle" with their iPhones, using technology to produce and exchange such smut. By the way, doesn't it seem that new technology is rarely used to make the world a better place? Take the internet. What was (is) the internet used for initially? A faster, cheaper way to view porn. What are the new smart phones being used for? A faster, cheaper way to produce said porn.

How did the police get involved? As is often the case, the girl's mother cracked the weak pass-code on her daughter's iPhone, and called the police to accuse her boyfriend for the production and distribution of child porn; ignoring, of course, her own daughter's actions which started this whole thing. And, if I had a dollar for every mom who blames the other kid for her own child behaving badly, I'd be a rich man . And no, the prosecutors did not arrest, and did not charge, the 15 year old girlfriend for initiating this exchange. However, legally speaking, this sounds a like a decent case of entrapment and temporary insanity, as no 17 year old boy could resist his girlfriend's invitation to exchange such behavior. There are plenty of studies out there on adolescent brains, and I'm pretty sure these studies would support me on this. Let's face it, no young skull full of mush can resist such an invitation. I'm pretty sure that the old "spin the bottle" game that would get me grounded back in the 80's has now become a felony sex crime, especially if the kids video tape the event. Naughty behavior among consenting juveniles has extremely serious consequences. Welcome to the new age, to the new age....

Here comes the shocker. After being arrested for possession of child pornography and manufacturing of child pornography--the police forced the 17 year old juvenile boy to expose his penis to them so that they could take pictures of it, in the hopes that these pictures could be used as evidence to prove that said penis matched the penis found on the 15 year old girlfriend's iPhone video. Yep, our government created child pornography to prove a child pornography case! The irony. I can't make this stuff up. And, it gets worse.

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Unholy Alliances

bull.jpgSometimes, you can just look at a group of people and know "they're up to no good". These "up to no good" groups are not kids hanging out, covered in tattoos and piercings at 3 am. Punk kids are suspicious at best, and usually spend half the night telling each other that "nobody understands me", and the other half detailing "how different they are". No, we've got to dig deeper. For example, say you're eating at one of the finer establishments in town, and you see your local congressional representative having dinner with a Big Oil executive. This can't be good, right? It's at least suspicious, like that smell of vanilla that permeates your clothes after a night of supporting single moms--there aren't many good explanations for such an aroma, I'm just saying. Or, say your State's Senator is having dinner with an executive from a big pharmaceutical company--what good could possibly come out of this? Another law exempting Big Pharma from lawsuits? Maybe a law attacking competing products coming from the supplements market? Who knows, the possibilities are endless. Yes, BIg Oil and Big Pharma are easy targets, and we don't have time for such cliches (too late?).

Today we're going to focus on the unholy marriage between corporate farming, and our government, and their demon baby "ag gag laws". The reason they're getting my attention is that, in at least six states, they have made it a crime to take pictures of how our food is being processed. That's right, taking a picture can be a crime. Now, taking a picture can be a crime if you're a pervert looking at naked kids, or a spy taking a picture of top secret documents or military hardware. I get that. But, we've now reached a new level of corporate and governmental intercourse, one George Orwell warned us about years ago. The fact is, some companies are so big, they have practically merged with the government. The unholy love child of this relationship is that, every potential instigator standing up to a big company no longer faces a civil lawsuit--its now criminal.

Six states now have "Ag Gag" laws, which make it a crime to "enter an animal facility to take pictures by photograph video camera, or other means". Yes, they really don't want you to know how your food is being made. The prime offenders are North Dakota, Montana, Missouri (my home state!), Kansas, Iowa, and Utah.

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How to Test Drugs (Again)

old scale.jpg[Whenever I can't come up with a catchy title for a topic I've already covered a thousand times, I simply add the word "again", or "part 2" or "revisited". I first wrote about this topic in July of 2012, in "How to Weigh Drugs in a Trafficking Case".]

We need experts to tell us how to do anything more complicated than finger counting. Some of this expert testimony is simple, and necessary if we want to keep our government in check (police work is only easy in a police state, right?). One of the more common cast of characters to appear on behalf of the State in drug cases are FDLE's lab chemists. The good news is, most of these folks are fully capable of putting drugs into a machine, and reading the results to a jury--much in the way a Wal-Mart cashier scans your products and tells you how much they cost. Unfortunately, not all of these folks truly understand how their machines regurgitate test results; and when you ask them to explain the science, they give a look reminiscent of a dumbfounded Ben Stiller in Zoolander. A classic comedy, for sure, but not something that should be remotely similar to expert scientific testimony. Anyway, some lab analysts simply do not follow the most basic of scientific tasks. Today's simple scientific task involves testing a controlled substance before weighing it. Weight is important. The weight of a substance can mean the difference between a lengthy prison sentence, and a probation sentence.

So, again, it is with great joy that I bring you a case in which our government cannot handle the most basic scientific procedure.

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Why Is There Something, Rather Than Nothing?

woman.jpg[if you don't like philosophy, skip this article...]

Have you ever had that feeling that its all been done before? Me too. And yes, this age old question is still unresolved, philosophers can not answer this question, nor can the scientists, nor can the religious. So, why something rather than nothing? I have some thoughts, all of which have been borrowed from more intelligent folks than I.

Science is great at answering the "how" questions, but not so good at answering the "why" questions. Both questions are intriguing. Why has the universe gone through all the trouble of existing in the first place? If you've read anything on this site, you can eventually figure out that I'm a Christian. As such, I understand that the Bible explains God's love for us, and how our the most important command is that we love God and each other. Ok, got that.

But, religion lacks answers to many adventurous questions. I think that's the way it should be, so as to not spoil the fun of discovery. We only take so many trips around the sun, and it's meant to be an adventure. This discovery process is exactly how Dr. Francis Collins spent 30 years of his life as an atheist, only to discover God after he decoded human DNA. Somehow, the beauty and complexity prompted Collins to believe in God. I get that, but not a good argument. Complex scientific discoveries do not point to a creator, though it may make such a belief both reasonable and plausible. For me, seeing a beautiful bikini on the beach convinces me that there is a God (can't be an accident, right?), is my inspired vision any better an argument than Collins' decoding of the human genome?

Anyway, if we want to answer the question of why there is something rather than nothing, it would be helpful to know what "nothing" is. I became interested in the subject of "nothing" after 21+ years of defending criminal cases. Sometimes, we attorneys must play with the definitions of words. And, I've noticed several scientists committing the same slight of hand maneuvers that I get paid to perform. The difference is, as attorneys, we have judges and legislatures and statutes and prosecutors to keep our definitions in check. That's not the case for scientists, you need only present a few complex models (mix in some big words and heavy equations), and not many folks will recognize the slight of hand. Well, I've noticed, and I'll explain more later.

Back to the big question. The intellectually lazy position is to simply dismiss the question. The question can be brushed off as being irrelevant. Or, that the universe needs no explanation. Who knows, these answers may turn out to be correct, but I'm looking for something a bit more intellectually satisfying (whatever that means--kind of like the supreme court's definition of pornography, 'we know it when we see it').

Another incomplete answer would be that the universe is here by chance. Chance is the scientific equivalent to a "God of the Gaps" analysis, in which religious folks claim that any gaps in scientific knowledge must be the hand of God. Scientist's gap theory claims that anything they cannot explain must have happened by chance. Of course, both camps may be right on this to some extent. If there is a God, maybe He did in fact cause certain things we can't explain. Or, regardless of whether or not God exists, there may still be plenty of room for chance in the universe (maybe God does play dice?).

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Will Florida Honor an Out-of-State Prescription?

cannabis plant.jpgFor years, we've been kicking around the boundries of state to state travel for citizens who are medically prescribed marijuana. Americans take for granted our lofty right to travel and assume that, once we pick up legally prescribed drugs at the pharmacy, we can road trip anywhere in the country with those legal prescriptions. When it comes to marijuana, that's just not the case.

Florida Statute Section 499.03 provides for a "prescription defense", in that we citizens cannot be convicted for "the possession of [a] drug [that] has been obtained by a valid prescription of a practitioner licensed by law to prescribe the drug". Sec. 499.03(1).

Shouldn't the plain language of this Florida Statute include medical marijuana? It includes drugs made by Big Pharma, like Oxycodone or Hydrocodone. You can bring these prescriptions anywhere in the country. But the same cannot be said for marijuana. A recent Brevard County case highlights the reasoning behind this. In State of Florida v. Zepeda (Brevard Co. 05-2013-MM-61469-AXXX-XX, April 7, 2014, FLWSUPP 2107ZEPE), the Defendant filed a Motion to Dismiss pursuant to Florida Rule 3.190(c)(4), a motion that required her to admit that she possessed the marijuana, but further claimed that "her possession of the cannabis was a result of a valid prescription". Sounds good so far, right?

First of all, the Motion to Dismiss was denied for technical reasons, as well it should have been (and I'm not one to say this sort of thing, but the judge is 100% right on this one). These motions must be sworn to, and Zepeda's motion was not (Practice Tip: if you don't want to swear to a Motion to Dismiss under 3.190(c)(4), you can always file an unsworn motion to dismiss under 3.190(b)).

Second, the motion to dismiss was denied because the prescription card presented as evidence in support of the motion was obtained three weeks after the arrest. Ouch. Lucky for us, the trial court briefly entertained this interesting issue, even though the judge had plenty of reason to simply deny the motion for the above reasons.

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Sentencing for Painkiller Trafficking Changes July 1st, 2014

pills in bottle.jpg"minimum mandatory sentences are simply heavy handed and arbitrary...we should not have laws that ruin the lives of our young men and women who have committed no violence." United States Senator Rand Paul (R-Ky)

Finally, a much needed modification to Florida's drug trafficking laws for the painkillers hydrocodone and oxycodone (found in Florida Statute 893.135). For many years, your taxpayer dollars have been going to warehouse people in prison--not for being hardened criminals, but for having a pain pill addiction. And, it really doesn't take much to end up in prison for painkillers. Under current drug trafficking laws, a mere 7 pills can trigger a minimum mandatory 3-year prison sentence (and, a mandatory $50,000 fine. Yes, only $120 in pills gets you a $50,000 fine):

HYDROCODONE - current law (based upon an average pill weight of 0.65 grams):

7 pills = 3-year mandatory prison term (4 grams)
22 pills = 15-year mandatory prison term (14 grams)

HYDROCODONE - new law, taking effect July 1st, 2014

7 pills = NO MANDATORY, NO TRAFFICKING, just a possession of hydrocodone charge
22 pills = 3-year mandatory prison term (14 grams)

And, the trafficking laws changed for oxycodone as well.

OXYCODONE, current law (based on average pill weight of 0.13 grams):

31 pills = 3-year mandatory prison term (4 grams)
108 pills = 15-year mandatory prison term (14 grams)

The new law governing OXYCODONE, taking effect July 1st, 2014, is as follows:

31 pills = NO MANDATORY, NO TRAFFICKING, just a possession of oxycodone charge
53 pills = 3-year mandatory prison term (7 grams)
108 pills = 7-year mandatory prison term (14 grams)

So, what is considered a trafficking offense today will no longer be a trafficking offense next week. A first degree felony trafficking will be reduced to a third degree felony possession of a controlled substance, as listed above. That's a step in the right direction.

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Jail Calls Are (Still) Being Recorded

tape recorded.jpgSome things bear repeating. Consider this article my annual warning to inmates that their calls are being recorded. To be fair, after over twenty years of defending criminal cases, I've talked to my fair share of clients over the jail phone system. Most criminal defense attorneys have some sort of phone contact with their clients at the jail, nothing unusual there. However, we all know not to talk about anything other than what we want the other side to hear. And, we attorneys are protected by attorney client privilege which trumps any sort of waiver of privacy issues (that's a topic for another day). Today, we're going to take a look at how the average recorded inmate call can find its way into a trial.

This case is a big one, Jackson v. State, 127 So. 3d 447 (Fla. 2013). Jackson was sentenced to death for the murder of a retired couple--the couple was buried alive in a "secret" burial spot in Georgia. This case received lots of media attention, and the Discovery channel ran a story on their "Wicked Attraction" series (if Discovery devotes an hour to your case, some crazy crap went down). Anyway, the Florida Supreme Court's decision is over twenty pages long, and the only part to be reviewed today involves the recorded jail calls Jackson made to his grandmother when he was first arrested. It could be argued that, if the four murderers kept their mouths shut, the victim's bodies would not have been found, and a murder case would have been far more difficult to prove (See State v. Casey Anthony, for example). But, the victim's bodies were found because one of the four co-defendant's told the police exactly where to find them. When Jackson's grandmother told him this, the recorded call repeated lines like the following: "Bruce told them where the fuck these people were at. Oh, my God. How the fuck could he do that? Bruce just hung us all." Id. at 464. Naturally, Jackson's defense attorney filed a Motion to Suppress the recordings, but the motion was denied.

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Would You Help a Friend's Dying Cat?

cat.jpgSome things in life are necessary, but not necessarily legal. Under crisis situations, folks may believe it necessary to commit a crime in order to avoid some perceived harm or danger. For example, say you have a suspended driver's license, you're out in the middle of nowhere, and your driver-friend has a heart attack. Would it be necessary to commit the crime of driving on a suspended license? When caught driving to the hospital, the defense would be known as the "necessity defense" (quite similar to the duress defense, which I discuss in a previous article called "He Made Me Do It"). Our discussion for today takes a look at how the necessity defense works.

In Brooks v. State, 122 So. 3d 418 (Fla. 2nd DCA 2013), Brooks was convicted of his third DUI within a 10 year period, and thus his misdemeanor DUI was upgraded to a felony charge. But Brooks had a defense. A great defense, if you're a cat lover. You see, Brooks was pretty drunk one night when several friends begged for his help. Their cat was dying, and the only veterinary clinic available for treatment was an all-night clinic for which they had no ride. As of yet, universal health care does not apply to kitty cats, so their only choice was to have a tipsy Brooks drive them to save their cat. The four friends pile into Brooks' car, and as luck would have it, Brooks was pulled over during 84mph in a 55mph zone--at the very exit of the all night veterinary clinic. The cat was in the car, as was the cat owner, and everyone was begging the officer to let them move on to the vet. The cop was a dog lover, so he wouldn't let them continue on their journey (well, I made up the part about the cop being a dog lover. Obviously, this officer hates all of God's little creatures, dogs and cats included, as you'll soon discover). The officer refused to let anyone, including the dying cat, leave for the veterinary clinic. So, the cat dies. Gone to kitty heaven. Which, may be a better place--but still--how cold can you be?

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Entrapment is Alive and Well

russian doll.jpgEvery now and then, people tell me "Florida doesn't have an entrapment law, does it?". This is a legitimate question, because practically speaking, not many judges or prosecutors understand this law well enough to make a ruling in a defendant's favor. So, it may "feel like" we don't have an entrapment law, but in fact, section 772.201 of the Florida Statutes defines entrapment as follows:

(1) A law enforcement officer [or agent] perpetrates an entrapment if, for the purpose of obtaining evidence of the commission of a crime, he or she induces or encourages and, as a direct result, causes another person to engage in conduct constituting such crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it.
(2) A person prosecuted for a crime shall be acquitted if the person proves by a preponderance of the evidence that his or her criminal conduct occurred as a result of an entrapment. The issue of entrapment shall be tried by the trier of fact.

Yes, I realize that reciting a statute may cause you to stop reading this (and/or fall asleep), but often it is important to actually read what we're dealing with. Armed with some statutory knowledge, let's delve into the recent case of Gennette v. State, 124 So. 3d 273 (Fla. 1st DCA 2013). Are you ready for what Gannette was convicted of? Felony unlawful use of a two-way communications device to facilitate a felony (yes, such a charge exists, section 934.215 Florida Statutes, and yes, I've ended two sentences in this paragraph with a preposition, my apologies). Anyway, I've always felt that Loitering and Prowling was one of the most bogus charges on Earth, but unlawful use of a two-way device has got to be a close second. Really, this thing is too close to call.

Anyway, Gennette filed a Motion to Dismiss, arguing that his crime was "the product of entrapment by the government, as defined by section 777.201, Florida Statutes, and that he [is] thus entitled to dismissal as a matter of law." Id. at 274. Now, as a preliminary matter, not every defense may be argued via a Motion to Dismiss. A quick reading of section (2) above notes that entrapment issues "shall be tried by the trier of fact". The "trier of fact" is a jury, by the way, not a judge. So, the legislature didn't want judges dismissing entrapment cases, they wanted to force citizens to bring up this matter before a jury. However, there's a simple way around this technicality. If your Motion to Dismiss does not dispute facts--and merely argues how the law applies to undisputed facts--then a judge can make a ruling based upon a Motion to Dismiss.

Here's two examples. A defendant claims that an undercover officer induced him via sexual favors. predictably, the officer denies such allegations. Under these facts, the issue may not be resolved via a Motion to Dismiss, because the undercover officer would deny the claim, thus putting the facts in dispute. But, let's say a defendant was induced via the sexual favors of a confidential informant--and the police were not supervising the informant at the time of the inducement--the State would have no way to dispute this fact (absent giving up the identity of the confidential informant and having them swear to contrary facts; the state may not have evidence to contest these facts if they choose to keep their informant "confidential"). If the facts are not in dispute, an entrapment case can be dismissed by the judge. This was only a slight diversion, but one that becomes important later, so bear with me.

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When Delay Leads to Dismissal

effects pedal.jpgAfter being arrested or charged with a crime, how long does it take to resolve the case? This is one of many burning questions for those unfortunately enough to have a brush with the law. Here's what you need to know. In Florida, we have a right to a speedy trial, which means that the prosecution has approximately 90 days to bring a misdemeanor to trial, and approximately 175 days to bring a felony case to trial. But these time frames are not the only speedy trial rights enjoyed by Florida citizens. The 90 days and 175 days are creatures of statute, and a second speedy trial right can be found in the Sixth Amendment to United States Constitution ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial"). The Sixth Amendment doesn't give us an exact time frame like the Florida Statute, so, to better understand how this time frame works, let's take a look at the recent case of Niles v. State, 120 So. 3d 658 (Fla. 1st DCA 2013), a case in which an appellate court threw out several convictions for lewd or lascivious molestation due to a delay in arresting Niles. Basically, this delay violated his Sixth Amendment right to a speedy trial, even though the delay did not run afoul of Florida's speedy trial statute.

Niles was officially charged with lewd molestation on March 6, 2000 (when the prosecutor filed a document called an "Information"). A warrant for his arrest was issued at the very same time. On August 11, 2008, he was arrested on this warrant. Yes, this delay was more than eight years. No, Niles was not that hard to find, even though he often travelled in a camper van (the accusations involve kids in a camper van, but I'm going to spare you the creepy details--this time). Niles was retired military, receiving monthly benefits from the United States Army. Back in March of 2000, they knew his address, they knew his phone number, they knew his Social Security Number, and they knew about the Army benefits. Furthermore, Niles had a passport, and he re-entered the country several times between 2000 and 2008. So, why did it take over eight years to find him? Well, it appears that the sheriff's office failed to enter the warrant into the national database. As soon as they entered the warrant in 2008, Niles was arrested soon thereafter.

As you might expect from any decent criminal defense attorney, Niles' lawyer filed a motion to dismiss based upon a violation of his Sixth Amendment right to a speedy trial. This motion was denied by the trial court, but the defense attorney knew the court made a bad decision, and moved for reconsideration. Denied again. So, the defense attorney appealed the second denial to a higher court (via a petition for writ of prohibition), but that too was denied. (They appealed to the very same court that, eventually, overturned his convictions? Why didn't they just do it right the first time? At least they got it right, eventually)

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Drugs Always Seem to Be, Conveniently, Found In Plain View

cocaine.jpgAs the old saying goes, police work is only easy in a police state. Assuming this to be true, detectives in Iran need only an 8th grade education to jump to conclusions and imprison their citizens. The reverse is supposed to be true here in America. We have freedom. Freedom causes police work to be more difficult. And, we do have some of the best police in the world as a result, though I suspect some of them know the law "too well" (which, we'll get into later). Every now and then, I sense we are inching closer to a police state, and this movement finds its genesis in court decisions dealing with evidentiary issues. For those of you unfamiliar with the criminal justice system, the easier it is to prove a crime, the closer we become to a police state. It's real easy in China. Yes, I know this sounds a bit extreme, and the term "police state" is boring and abused. But I feel like that clich├ęd old frog that never jumps out of the boiling water because the temperature increases are so subtle. So, let's talk about one of those subtle temperature increases, found in the case of Jennings v. State, 124 So. 3d 257 (Fla. 3rd DCA 2013).

Jennings was driving a car with two other occupants when it was stopped for a traffic violation. Jennings exited the car and walked up to the officer with his license in hand, acting "very, very nervous." As the officer and Jennings were talking, the backseat passenger took off running, but was caught by a back-up officer. To make matters even more suspicious, the front seat passenger then attempted to flee, but he too was caught. And, as you might expect, the reason why these folks were running is that, lying on the front passenger floorboard, there was a gym bag full of two kilos of cocaine, and over $30,000 in cash. Jennings was charged with trafficking in cocaine, and the jury found him guilty of a lesser offense of attempted trafficking in cocaine. The officers testified that, allegedly, the cocaine was in plain view, open for everyone to see--including driver Jennings.

Now, I have a bit of internal conflict about this officer's testimony that two kilos of cocaine were in plain view, due to the duffel bag being open for all to see. After defending criminal cases for over 20 years, it never ceases to amaze me that drug traffickers don't bother to hide their drugs. Zipping up a duffel bag, not that hard, right? You mean to tell me that, when this car was being pulled over, Jennings and the passengers just left two kilos wide open for everyone to see? Am I supposed to believe that? Yet, the internal conflict arises from the fact that, yes, some criminals are simply that dumb. The stupidity cannot be denied. So, it's a tough call, but the officer's testimony that the cocaine was "in plain view" is the one statement that sent Jennings to prison. The "in plain view" statement keeps this case from being thrown out of court. If the officer testified that the duffel bag full of two kilos of cocaine was zipped up, and its contents were unknown, this case would have been thrown out of court under the proof requirements of constructive possession.

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Intent, Intent, Intent

jewelry.jpgEvery theft case needs intent. Unfortunately, most loss prevention officers in retail stores just assume someone intends to steal an item simply because they've forgotten to pay for it. I've seen more than my fair share of shoplifting cases in which the petit theft was based on a few unpaid items at the bottom of a shopping cart. It happens.

But intent isn't just about shoplifting versus forgetfulness. Conceptually, if you can't pay your bills, are you stealing from the people you owe? Is it stealing to rack up credit card debt that you know you can't pay, right before filing for bankruptcy? What about companies, can they borrow money from creditors with the hopes that things will turn around, only to go out of business soon after borrowing the money? What we're going to review today is a grand theft case under the heading "business deal gone bad". As you know, everybody who is owed money wants to transform theses debts into some sort of criminal act on the part of the person not able to pay. Of course, if this were really the case, there would be no need for bankruptcy courts, we'd just prosecute everybody who can't afford to pay their bills. One of my favorite 'business deal gone bad' cases is Szilagyi v. State, 564 So. 2d 644 (Fla. 4th DCA 1990).

In Szilagyi, the defendants were convicted of fourteen counts of first degree grand theft, allegedly stealing over $190,000. The defendant's owned a jewelry manufacturing business, and they fell behind in their payments to 10 creditors. These creditors sent the defendants products to resell that were never paid for, and never returned. Rather than simply sue the company (defendant) for the debt owed, the creditors prompted the Fort Lauderdale Police Department to initiate a criminal investigation. As usual, the police department and criminal justice system was just being used as a collection agency, rather than fighting real crime. Yes, your taxpayer dollars hard at work, fighting for large companies that extend credit to businesses. Anyway, the detective investigating this case decided that the defendants were running a 'bust out' operation. Now, there are several different types of bust out operations, but the basic principle is that the company's intent is not really to be a company at all, but rather, to use their credit to obtain as much revenue and merchandise from creditors as possible--then skip town. The defendants were in business for over a year, possibly two.

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I've Violated My Probation, What Will the Judge Do?

question.jpgAfter 20+ years of defending criminal cases in Orlando, some questions are more popular than others. Simple, basic questions like: what's going to happen to me? Oddly enough, this question can be more difficult to answer on a violation of probation than a new charge (sometimes). The reason is, judge's have far more discretion on VOP's than they do on the case initially (but, not as much as they think, as you'll discover by reading below). VOP sentences are probably, statewide, the most unpredictable type of sentence out there. Within the same courthouse, on the same violation, you can have one defendant go to prison, the other client gets an admonishment (reinstated). As Timothy B. Schmit sang, "I can't tell you why". But, I can tell you more information once I know the judge assigned. Obviously, you want a lawyer that knows the judge your VOP case (yes, I'm that guy, if you're in Central Florida). Now, let's delve into the basics of a VOP, then point out an extremely important detail--often overlooked by most judges.

Judges have three options once they've found you guilty of violating your probation. First, they may revoke probation. When the court revokes probation, a sort of Back to the Future moment unfolds, and the judge can impose any sentence that was available initially. Generally, this is the only way a judge can impose a jail or prison on a violation of probation. Quite frankly, with some judges, a revocation usually means jail or prison. But, there's a second option available to the court. Second, if a person is found to be in violation, the court may modify the probation. Modifications keep the person out of prison, but add conditions not found in the original probationary term. Typically, the probation is modified by adding community service hours, adding more years of supervision, or adding some sort of drug treatment (if the charge or violation relates to such).

The third option is that the court may continue probation. In my over twenty years of handling violations of probation, I have heard a few fair minded judges state "I find the Defendant in violation of his probation, and I am ordering him to continue his probationary term, no further sanctions." Always a pleasure to hear that.

Now, for those of you really into the law on this subject--I want to blow your mind, everyone will be bored to tears, sorry. In a footnote to a recent case, the Second District Court of Appeals said the following (this is my favorite footnote of recent memory):

Because a trial court has discretion to revoke, modify, or continue probation, it seems possible that a factual scenario could arise in which revocation could be an abuse of discretion even where competent substantial evidence supports a finding that the violation was willful and substantial. However, we find no cases so holding. Savage v. State, 120 So. 3d 619 (Fla. 2nd DCA 2013), footnote 1.

Wow. Let's break that down, because I can't believe my own eyes.

Continue reading "I've Violated My Probation, What Will the Judge Do?" »

Encrypt Everything

hard drive.jpgThe government loves to search our stuff. What are the limits of this power? The Constitution, of course. In a month or so, the United States Supreme Court will render a decision regarding law enforcement's search a citizen's cell phone upon arrest. Keep in mind, it is customary for the police to search the personal items of an arrestee, like a wallet or purse. Sometimes, a man's wallet contains photos of his family, and it is legal for an officer to flip through these items upon arrest. However, does this right to search extend to a cell phone? Not in Florida. As of last year, the Florida Supreme Court ruled that these cell phone searches violate the Fourth Amendment. Smallwood v. State, 113 So. 3d 724 (Fla. 2013). Locally, Central Florida was left with a bad decision in State v. Glasco, which followed the original Smallwood decision and ruled that cell phone searches were constitutional. As you might expect from me, I didn't agree that these searches were legal, and months before these cases were overturned I wrote an article explaining why they were bad law. Yes, I got this one right, thank you very much, but even the blind squirrel finds a nut, and a broken clock is right twice a day. Got it.

Anyway, technology is exposing some cracks in our laws, permitting the government to squeeze through until the court system catches up with them. In particular, Central Florida has witnessed a significant increase in home searches pursuant to the witch hunt for child pornography. The problem is, when the government seizes a computer that is encrypted (I've had a few of these cases), they can't retrieve the child porn. That's because some encryption codes cannot be cracked by the government. Not even the NSA. Really. Seriously. So, under these circumstances, may the government compel a citizen to hand over their hard drive, decrypted?

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