I’m sure you remember the financial crisis in 2008 involving Wall Street and fraudulent mortgage backed securities.  I’m sure you’re sick of hearing about it too, but hang inloan there, this all ties in, I promise.   We’re going to compare the treatment a Florida citizen receives for her mortgage fraud, versus the punishment received on Wall Street for a similar mortgage fraud.  Can you guess where this is going?  Let’s start with Wall Street.

Recently, a federal judge summarized the 2008 crisis as follows, “Did defendants accurately describe the home mortgages in the offering documents for the securities they sold that were backed by those mortgages?  Following trial, the answer to that question is clear.  The offering documents did not correctly describe the mortgage loans.  The magnitude of falsity, conservatively measured, is enormous.”  [Judge Denise L. Cote, Federal Housing Finance Agency v. Nomura Holding America, 2015 U.S. Dist. LEXIS 10466 ( S.D.N.Y. 2015, Case No. 11cv6201]

Ok, so Wall Street didn’t “accurately describe”  some home mortgages, and we all know how that story ends.  What about the little guy, or in our case, a gal named Jacqueline Izquierdo.  She was convicted of mortgage fraud and grand theft.  The prosecutors claimed that she provided false information on loan documents used by the mortgage company to determine her eligibility for the mortgage, and convicted of grand theft for taking $216,000 in loan money that she, supposedly, was not entitled to.  Izquierdo v. State (Fla. 3rd DCA October 28, 2015, Case No. 3D13-2751).

Just for a little perspective here, remember the billions of dollars in mortgage fraud from 2008?  No one was arrested.  No one went to prison.  Ms. Izquierdo received a sentence of 14 months prison, followed by two years of home confinement (community control, as we call it here in Florida), and then 8 years of supervised probation.  Here’s what she did. Continue Reading

Science never seems to prove as much as prosecutors claim.  Case in point: fingerprints.  Yes, prosecutors make some pretty ridiculous plea offers when they have incriminating fingerprints.  They get that gleam in their eye, like “Guidry, you can’t get your client out of this one–I have fingerprints!!”   Oh boy, I’ve never seen such a solid case.  Wow, my client must really be guilty this time, right?  Wrong.

What does it mean to say “the defendant’s fingerprints match those found at the crime scene?” Let me tell you what it’s not.  When law enforcement fingerprintstestifies that a crime scene fingerprint “matches” the defendant’s fingerprint, they’re not saying that these two fingerprints are identical.  Sure, it sounds that way, but even with two prints “matching”, the crime scene fingerprint could belong to someone else.  Why, you ask?  Because fingerprint analysis is not an exact science, it’s just a probability claim.   Sure, all of science can be reduced to probabilities, but that’s a philosophical discussion for another day.   Continue Reading

Our government is supposed to be transparent.  We have the federal Freedom of Information Act, and in Florida, we have Sunshine Laws.  These laws provide citizens the ability to force ouroxy government to hand over information that they may not, otherwise, publish.  If it wasn’t for FOIA requests, our world would have far fewer UFO and conspiracy books.  Jesse Ventura wrote an entire book analyzing FOIA documents, and given our government’s shady ways, we should expect even more tantalizing documents in the years to come.

Unfortunately, freedom of information is nonexistent in the criminal courtroom.  Florida juries are not permitted to know the most basic truth of a case—the potential sentence.  Kind of crazy, right?  Citizens are not allowed to know the sentence that will result from their verdict out of fear that such information would sway the jury’s conscience toward not guilty (God forbid a jury with a conscience!).  Such fears say a lot about how harsh our criminal justice system has become.

Knowledge is power.  A fully informed citizenry, typically, provides insurance against the tyranny of outrageous government legislation.  Juries should know that a $300 purchase of oxycodone pills can lead to a 25 year minimum mandatory sentence.  Yes, as little as $300.  No, juries don’t know this, even when they’re the ones about to impose the 25 year sentence.  Sadly, a minimum mandatory prison sentence for a $300 drug deal is common place in Florida.  Most citizens mistakenly believe that 25 years of mandatory prison are reserved for the likes of a Pablo Escobar (any Narcos fans out there?  Great Netflix series, I recommend it).  Even child molesters fair better, on average, than folks who possess minimum mandatory drug amounts.  Child rapists average around 17 years in prison.  Naturally, prosecutors want to keep jurors in the dark about mandatory sentences on drug offenses, as it is far easier to obtain guilty verdicts when the jury doesn’t realize just how devastating these minimum prison terms turn out to be for defendants and their family. Continue Reading

refereeAfter 22+ years of criminal defense work, certain questions keep coming up.  One of the most common is, “Do you do pro bono work?” In other words, will I work for free?  It takes a certain amount of balls to ask this question.  Would you head over to the car dealership and ask them if they’d give away a car?  Would you ask a mechanic to fix your car for free?

I do give a “free consultation”.  But, a free consultation isn’t legal advice.  Law firms use free consultations to decide whether or not a case—and client—are a good fit for the firm.  Hopefully, potential clients are sizing up the law firms they interview in the same fashion. That being said, a free consultation will never equate to some sort of guide as to how to defend yourself.  Every now and then, I get a do-it-yourself kid who wants legal advice, rather than a free consultation.  If you want examples of folks who have failed because they lack enough common sense to hire professionals to assist them, just tune into Tosh.O  and you’ll get a feel for how folks behave without supervision (Comedy Central, weekdays, you probably already watch it, don’t pretend you don’t).

So, when people aren’t asking me to work for free, they’re asking some form of the question “How much time will I serve?”  Well, that’s a loaded question.  As a general rule, everyone is entitled to some sort of discount on their prison sentence–the going rate is 15%.  For example, a 10 year prison sentence will be reduced by 15%, to 8 ½ years, for what we call ‘good time’ or ‘gain time’.  However, this general rule does not apply to all crimes, as some must be served without a discount (or, “day-for-day”).  Today, we’re going to take a closer look at this issue, as it presents itself in Melvin v. State, 2015 Fla.App. LEXIS 14949 (Fla. 1st DCA 2015). Continue Reading

Cross examination is the greatest legal engine ever invented for the discovery of truth.”  John Wigmore (Wigmore wrote the book on Evidence)IMG_1161

The age-old tool for ferreting out truth in the trial process is the right to cross-examination.  For two centuries past, the policy of the Anglo-American system of evidence has been to regard the necessity of testing by cross-examination as a vital feature of the law.” United States v. DiLapi, 651 F.2d 140, 149-151 (2d Cir. 1981)

Cross-examination is the principle means by which the believability of a witness and the truth of his or her testimony are tested.” Davis v. Alaska, 415 U.S. 308, 316 (1974).

How do we really know something is true?  This question dates back to Plato, and even though we haven’t made much progress philosophically, our legal system provides various rules designed to ferret out the truth.  At its core, evidence against a citizen is tested by cross-examination.  If you limit cross-examination, you have effectively slowed down “the greatest legal engine ever invented for the discovery of truth”.  The recent decision in Marquis Bell v. State has dumbed down the violation of probation process, devolving judges into rubber stamps for law enforcement. 2015 Fla. App. LEXIS 14993 (Fla. 5th DCA October 9, 2015).   To understand what went wrong in Bell, let’s get back to the basics.

How can you test if a person is being truthful?  Cross-examination.   How can you test a document for truthfulness and accuracy?  Cross-examination.  If a lab report accuses a probationer of testing ‘positive for the presence of Marijuana’—how do you know the document is accurate?  Well, you can test the lab report’s accuracy by cross-examining the lab technician.  For two hundred years, when a document accuses somebody of wrongdoing, the state must provide a live witness who can verify the truth of what is contained within that document.  Legislatures have attempted to get around this live testimony requirement in various ways.  Yes, this issue is closely related to your Sixth Amendment right to confront an accuser, but the Sixth Amendment doesn’t apply to VOP hearings.  (Nonetheless, you may want to check out my articles Lab Reports Suck, and Surrogate Testimony).  Putting aside for the moment any issues regarding confrontation, truth seeking is still troublesome in violation of probation hearings because a certain amount of hearsay is tolerated.  This tolerated hearsay, however, is constrained by the rule that this “hearsay must be corroborated by non-hearsay.” J.F. v. State, 889 So. 2d 130, 131-32 (Fla. 4th DCA 2004).

Typically, our court system does not permit testimony regarding what someone else said, as this hearsay evidence is deemed weak because it cannot be cross-examined.  For example, if I want to show that Steve tested positive for cannabis, I cannot testify that “Frank told me that Steve tested positive for cannabis”.  In the same fashion, I cannot testify that “I read a lab report that indicated cannabis was in Steve’s urine”.  That too is hearsay.  And, if the lab report is subsumed into the urine test itself, I cannot testify that “I read the test strip which I dipped in Steve’s urine, and the test strip indicated the color blue, and I read on the test kit that this color indicates Steve’s urine contained cannabis”.  Again, all of this used to be hearsay, and still is in most of Florida.  Unfortunately, the Fifth District Court of Appeals has decided to stand in direct conflict with every other district court in Florida by permitting this sort of testimony.  See Carter v. State, 82 So. 3d 995 (Fla. 1st DCA 2011), or Queior v. State, 157 So. 3d 370 (Fla. 2nd DCA 2015), or Weaver v. State, 543 So. 2d 443 (Fla. 3d DCA 1989). Continue Reading

“Believe none of what you hear, and half of what you see.” Benjamin Franklin (I think)IMG_1609

Unfortunately, violations of probation are fairly easy to prove, but there are a few rules that must be followed.  First and foremost, a violation cannot be based solely upon hearsay.  There are entire books written on the concept of hearsay, of which the first chapter would bore you to tears.  At the risk of losing you on such details, let me just say that hearsay involves a person quoting someone who is not present in court.  So, you can’t convict someone of violating probation by telling the judge that “Someone told me that the probationer did something”.  As basic as this may seem, you may be surprised to find that judges, probation officers, and prosecutors do not understand this age old concept.  To prove this to you, we’re going to take a look at the recent case of Mullins v. State, 2015 Fla. App. LEXIS 13553 (Fla. 2nd DCA Sept. 11, 2015).

Mr. Mullins was found guilty of violating his probation in two ways: (1) he failed to obtain the consent of his probation officer before changing his residence, and (2) he gave false information to his probation officer regarding his actual residence.  Yes, this is two violations for the price of one relocation.  Mullins’ violation began as so many others do–with a probation officer’s surprise home visit.  (Yes, you were thinking a positive drug test, and that’s probably first on the list, with surprise visits running a distant second place) Continue Reading

IMG_1386Everyone hates a know-it-all.  Through some force of nature beyond explanation, know-it-alls are attracted to the probation and parole profession.  I have no hard evidence of this, just hear me now and believe me later.  What you’re about to read involves a probation officer making three separate violation accusations, all of which turn out to be bogus.  It happens all the time, and your taxpayer dollars are being wasted.  You could interpret such poor probation performance in two ways.  First, some would say that these probation officers actually know the law, but out of spite, choose to violate citizens just to send them to jail.  But I think it may also be true that probation officers simply don’t know the law.  So, whether probation officers violate out of pure spite, or out of ignorance, is a discussion for another day.  For now, let’s delve into the recent case of Messineo v. State.  2105 Fla.App. LEXIS 13904 (Fla. 5th DCA Sept. 18, 2015).

Ms. Messineo pled to resisting an officer with violence and battery on a law enforcement officer (these go hand-in-hand, as you know).  She violated her probation several times, but each time she was reinstated.  For the violation we’re dealing with, her probation officer alleged that she failed to complete 40 hours of community service, failed to undergo a psychological evaluation, and possessed a prohibited weapon—a knife.

First up, Ms. Messineo was arrested on a new charge of possessing a concealed weapon, a pocketknife with a two inch blade.  She was stopped for a traffic violation, and permitted the officer to search her purse.  When the officer found the knife,  she told the officer that she often walks alone at night and needs the pocketknife for protection.  Is it legal for her to possess a two inch blade, even though probation prohibited her from carrying any sort of weapon while on probation?  Well, that depends upon the definition of a “weapon”. Let’s review some basic Florida law here.  What does Florida law say about pocketknifes?  And, is any of this so complicated that a probation officer couldn’t have figured it out?   Continue Reading

When I was young, my family wasn’t the first to get cable TV, but, my cousin Louis had cable TV in his basement.  So, on August 1, 1981, we both sat there in amazement as MTV began its first broadcast.   On that day, my love affair with music videos began.  Soon, I convinced my parents to buy a video camera (massive piece of equipment, back in the early ’80’s) and I had a good time shooting lip synced music videos with neighborhood friends.  Eventually, I had to grow and become a lawyer, but in the ‘90’s I owned a music video production company here in Orlando, steady-cam and all.

I say all of this only to bolster my credibility regarding pictures and video.  As you know, video cameras basically capture pictures in sequence, and our iPhones have blurred the line between cameras and video cameras by doing both things without much fuss.  And, the number of pictures that can be taken per second (frames per second) has gone through the roof.  We now have cameras out there, like URSA MINI from Blackmagic Design, that will capture 160 frames (pictures) per second, all for a couple of thousand dollars.  Back when I was shooting music videos, my “3-chip” digital camera cost thousands, but could only shoot 30 frames per second.  Now, you might be asking yourself, what does this have to do with child pornography?  Well, here comes the transition folks, wait for it.

Florida’s legislature has decided to punish child pornographers for every single picture they possess.  Each photograph is a felony carrying 5 years in prison.  What this means is, as cameras become more advanced and take more pictures per second, the punishment for this crime skyrockets, as defendants charged with such crimes often possess hundreds of photos.  To see how this plays out in real life, let’s take a look at the recent case of Pardue v. State, 2015 Fla. App. LEXIS 13406 (1st DCA Sept. 9, 2015). Continue Reading

The waiting is the hardest part, according to Tom Petty.  I get quite a few calls from folks wondering how long it will be before the state files charges against them.  I always say, if you’re going to wait around to see what the government is going to do to you, expect the worst.  The government is not your friend, and they’re not going to help you through the trauma of an arrest.  And, after the trauma of an arrest, it can be stressful waiting to see what or when or if charges will be filed.  On the inside of the government machine designed to rack up convictions, think about what information the prosecutor is reviewing before making a charging decision.  A prosecutor has numerous cases, and will certainly review all of the facts in front of her.  The problem is, if you haven’t hired an attorney to plead your case to the prosecutor before she has made a filing decision, then chances are, the only evidence they have to go on will be the extremely bias reports provided by law enforcement.

So, this may seem a bit obvious, but if you have a case that contains facts that were omitted by law enforcement (most cases fall under this category, and I’m not being cynical), hire an attorney as soon as possible so that the prosecutor can have all the facts before making a charging decision.  No, this not a thinly veiled plug for my services.  I’m just amazed at how serious some cases are, and yet, these folks are taking their time hiring an attorney.  If you wait for something to happen, expect the worst to happen.  If you’re proactive and actually have someone fighting for you–expect good things to happen.  Any sort of delay is a bad thing.  Defense evidence is slipping away.  Video evidence is being taped over, dispatch calls are typically kept for 30 days, and most private security cameras hold their data for even less time than that.  Add to that the numerous witnesses whose statements sound far more credible when taken within days of the incident–rather than months later.  I had a trial last year that involved two eyewitnesses to a crime, and both eyewitnesses were intentionally ignored by the police (because the officers knew their testimony would not be helpful).  Had we been able to point out this testimony to the prosecutor prior to their filing decision, it would have made all the difference in the world.  Timing is everything, as they say (whoever ‘they’ are). Continue Reading

Buyer’s Remorse is a very real phenomenon in criminal cases.  It’s difficult for judges and defense attorneys to think of all the ways in which a criminal case can impact a person’s life.  Who would think that an apartment application would be denied based upon a misdemeanor?  Sadly, it happens.  Today, we’re going to look avoiding deportations that are caused by a plea in a criminal case.  For some people, undoing a plea will pull them right out of deportation proceedings, so let’s take a look at how this works.   flags

[Shameless plug] I have filed my share of Motions to Withdraw Plea based upon the fact that a previous lawyer never informed their client of the fact that they would be deported once the Federal government discovered the plea.  Sometimes, these motions are called 3.850 Ineffective Assistance of Counsel claims, and these big legal words can be summarized as follows;  “Judge, please let me withdraw my plea because my lawyer never told me I would be deported as a result of this plea”. Other times, these claims are just a simple Motions to Withdraw Plea.  When the defense attorney fails mention the potential immigration consequences of a plea, the client may be entitled to withdraw the plea, but several other factors must be present to pull this off.  By “several”, I mean six or seven, so you’ll really have to be interested in this topic to get through every one of them.  Enjoy. Continue Reading