Better Listen to Mom

bus stop.jpgSometimes, these articles answer burning questions, but not today. Questions like "why something versus nothing?" may get answered later. Today, I'm here to tell you what's happening in Florida's criminal courts. As always, I'm attempting to avoid big legal words that make some lawyers feel important, but fail to convey information in a way that can be digested by folks who haven't gone to law school.

The question for today is: What is the difference between exposing your private parts, and exposing them in a lewd way? The circumstances under which you show your private parts will determine if the case is a misdemeanor, or a felony prison sentence. This is the sort of problem that exhibitionists run into when they're caught. It seems to me that exhibitionists should simply camp out at clothing optional resorts like Paradise Lakes, but somehow, they never figure this out.

WARNING: I'm about to tell a war story--feel free to skip the next two paragraphs if you think you've heard this one before. It seems that the longer I practice criminal defense, the more war stories uncontrollably shoot out of my mouth. With the disclaimer out of the way, pack-it-up-pack-it-in-let me begin:

There's a difference between exposing your private parts for a misdemeanor, and exposing your private parts all the way to a felony lewd or lascivious exhibition conviction. I had a client years ago that had already been to prison for masturbating in front of kids under the age of 18. Sometime after his prison release, he's standing across the street from a few high school cheerleaders after their practice for the day (which he, no doubt, enjoyed watching), and he exposes his penis to the girls. The term "expose" may be an understatement, but the term will suffice for our discussion.

Continue reading "Better Listen to Mom" »

"I Know My Rights"

kids.jpgIf you've lived on Mother Earth long enough, you've encountered a smart-assed kid that (a) has no respect for authority, and (b) knows his rights. So, how do police officers respond to someone that tells them they "know their rights?" As a general rule, and I think you can find this in the FDLE Field Training Manual--most officers reach for their handcuffs and billy-club, though not necessarily in that order. I'm just saying.

In the case of G.T. v. State, a juvenile appealed her conviction for resisting an officer without violence. 120 So. 3d 141 (Fla. 4th DCA 2013) This incident began as most juvenile cases do, with a call from a neighbor complaining of a "disturbance of juveniles drinking and smoking." It shouldn't surprise you that juveniles do not understand the concept of "being quiet", and such immaturity provides a constant revenue stream for Crime Inc., so nobody seems to mind. Anyway, the police arrive at the apartment complex and see six teenagers hanging out, one is holding an empty "Bacardi Silver" bottle. Some alcohol connoisseurs may argue that this--in and of itself--is grounds to at least harass these teens, but you cannot pass judgment on teenage drink selections, as it is often a question only of what they can steal from their parents. So, blame the parents for poor taste. Once the officer detained the kids he noticed that several of the teens were drunk, because they had red, glossy eyes and slurred speech. The officer started things off by asking for their names, birthdays, and parental contact information
All the teenagers played along with the name game, except G.T., she refused to give any information because she "knows her rights." Now, we all know somebody that "knows their rights"--and that's OK so long as they actually know what they're talking about (but that's kind of rare, unfortunately). As you might expect, and as my informal studies have shown, the police are not too fond of folks that "know their rights". Most people that "know their rights" get themselves arrested, and, depending on how much they know, the police may even provide a complimentary beat down. G.T. knew just enough about her rights to get herself arrested for resisting an officer without violence and disorderly intoxication. So, was G.T. right? Was she legally entitled to refuse to give her name and information to the police? Did she really know her rights?

Continue reading ""I Know My Rights"" »

The Foundations of a Motion to Suppress

bear.jpgIf I had a dollar for every time someone called to tell me their rights were violated, I wouldn't have to work; I could just keep answering the phone and make a dollar here, dollar there. Part of my work as a criminal defense attorney is to challenge the constitutionality of a government search. Its one of my favorite things to do (boring, huh?). What we're going to examine today are the very foundations of a challenge to a government search.

The Fourth Amendment is all about privacy rights. A government search will violate the Fourth Amendment prohibition against unreasonable searches only if a citizen can first prove that he has a reasonable expectation of privacy in the thing or place searched. When defending a criminal case, it is not enough to just stand at the podium and ask the court to suppress all the state's evidence because my clients rights were violated. We "ask" the court to do things through motions. If we're alleging an illegal search and seizure, the written form of this request is known as a Motion to Suppress.

The problem is, filing a Motion to Suppress is only the beginning. Practice Tip: there are different theories on how detailed a motion to suppress should be. Many defense attorneys file bare bones motions, so that the state is not tipped off as to what specific legal issue might be argued at the hearing. I disagree with that approach. You want to provide the court, and the state, with the bulk of your analysis in the motion so that everyone can prepare to argue the finer points. This is especially true if law enforcement has already articulated their position at depositions. Without depositions, I can see how a detailed motion might "influence" a witness to say things on the stand that will hurt the motion. Of course, this is why we have depositions, to lock the witnesses into their testimony.

Anyway, a Motion to Suppress hearing is conducted with live witnesses, and it is the defendant's burden to start calling witnesses. No matter how unconstitutional a government search may appear to be on its face, it is still the defendant's burden to first establish that there's a privacy interest at stake. The very core of the Fourth Amendment is privacy rights. So, to win a Motion to Suppress, it must be established (typically by the Accused) that the defendant had a privacy interest in the item searched and seized. Alright, to see how this issue plays out, let's examine Henderson v. State, 38 Fla. L. Weekly D 1786 (Fla. 2d DCA 2013).

Continue reading "The Foundations of a Motion to Suppress" »

The Witch Hunt for Child Porn

witch.jpgHistorically, witch hunts have not been a good thing. Innocent people have suffered extreme temperature conditions. Now, the witch hunt has shifted its focus away from non-traditional religious practices, and into something everybody can agree is perverted--the possession of child pornography.

The current state of the law is scary. Simply viewing child porn is illegal in Florida. Pretty soon, just thinking about viewing child porn will be illegal. Can you think of anything else that is illegal to see?

I understand the logic here--if you cut of the demand (the viewers), the supply of child porn will decrease as well. But that's not how child porn works. Sure, if you cut down cocaine users, the supply of cocaine will decrease, but that's economics 101. Child porn is not an economically driven activity--there's no money changing hands. Let's face it, the production of child porn is some sort of perversion. So, it doesn't take a rocket scientist to figure out that the massive prison terms child porn possession cases has not made a dent in its production.

Here's my concern for today. The government's quest to find child pornography is diminishing our constitutional rights, by setting the bar so low to issue a home search warrant. The level of proof to enter a suspected grow house, or to enter a home suspected of containing drugs, is far greater than the proof required to enter a home suspected of containing child pornography. The case that will prove this to you is State v. Woldridge, 958 So. 2d 455 (Fla. 2d DCA 2007).

Woldridge was charged with possession of child pornography, based upon a search of Woldridge's home. Naturally, this search began as an Affidavit in Support of a Search Warrant. Typically, law enforcement must produce quite a bit of evidence to a judge (in the form of a sworn affidavit) to get into somebody's house. The constitution requires probable cause that there will actually be evidence of a crime in a house before violating the sanctity of a citizen's home. In Woldridge's case, a judge let the police into his home because the police received a tip that child porn could be found in the home. So the question is, who gave the police this "tip", and how reliable was this "tip?"

Continue reading "The Witch Hunt for Child Porn" »

Conviction Reversed After Prosecutor Admits Recanted Statement

robbery.jpgEddie Murphy has a classic rant about being caught cheating. He's trying to convince his wife that she really didn't see him having sex with another woman; "who are you going to believe, me, or your own eyes?" (saw Eddie on his excellent "Raw" tour, remember those days, when comedians were rock stars?) This same sort of logic is utilized by prosecutors, they want you to believe the cops that arrived later at the scene, but not believe an eyewitness who hurts their case.

Let's face it, evidence gets filtered and manipulated by law enforcement before it ever reaches the court system. And, as tempting as it is, I can't blame the prosecutors for this up front manipulation--they're just drinking the Cool-Aid handed to them by the cops. I've experienced this first hand (this won't be a long war story, I promise). Years ago I witnessed a first degree life felony right before my eyes. There were four other witnesses. The police handed each of us witness statement forms, and after a briefing by the cops as to what we should write, we all started writing. Immediately, several witnesses asked the group what they saw, and what they should write. Naturally, I told them to shut their pie hole and only write down only what they saw. I said it politely, of course, as polite as "pie hole" can sound.

Here's the thing. My witness statement favored the defendant in the case. My witness statement described some "unnecessary roughness" by the police. And, as you might expect, my statement never made it to the state attorney's office. It disappeared. Gone. I doubt my statement ever made it to the police station, it was probably deposited in a Dunkin' Donuts trashcan somewhere in Orlando. I had a case recently in which the police told a few witnesses to leave the scene--without ever taking down their statement--because the cops knew that these witnesses would testify to things not favorable to their case. And, good luck tracking down witnesses who have been dismissed at the scene. What you're left with is only the facts that the police want you to hear.

So, what happens when a witness, upon sober reflection, decides that her statement is simply inaccurate? She can recant the testimony, right? Well, yes, but that's not going to sit well with the prosecutor. That's just what happened in Felton v. State, 120 So. 3d 126 (Fla. 4th DCA 2013).

Continue reading "Conviction Reversed After Prosecutor Admits Recanted Statement" »

Money for Nothing and Your Chicks for Free

woman.jpg"That ain't workin'
That's the way you do it
Money for nothin' and your chicks for free
" - Dire Straits, "Money for Nothing"

Here's something you already know about our government--they break the very laws that would get you and I arrested. On every level, our government may break its own laws. And no, I'm not talking about the families of congressional members that may conduct insider trades that would place you and I in Martha Stewart's old cell, I'm talking tiny misdemeanors involving humanity's oldest profession.

We all realize, at some basic level, that our government may lie to us. Our government may deceive us. And, our government may break the law. From a criminal defense attorney standpoint, whenever law enforcement breaks the law in order to arrest my client, I'm looking for entrapment issues. An entrapment defense is telling the court that our client should not be prosecuted because the arrest was created by police conduct that should not be tolerated. The issue often becomes one of deciding whether our government promoted a crime, or detected it. When it comes to entrapment, the level of inducement becomes an important factor for courts to consider. See Munoz v. State, 629 So. 2d 90 (Fla. 1993). So, just how far can our government go in order to "detect" a crime?

There's a long list of illegal activities that the police engage in to catch criminals. Government officials go undercover and deal crack cocaine in our inner cities, in order to catch potential buyers. As Chris Rock was fond of saying, crack sort of sells itself, and the term "sale" may not appropriate here. In these cases, entrapment can be a difficult defense because the undercover dealers are probably providing a low level of inducement, if any at all (crack sells itself, so there's not much inducement).

The same cannot be said of prostitution. Don't get mad at me for saying this, but many folks would participate in prostitution if the price was right. Would you have sex once for $1,000,000.00, tax free? How about $100,000? How about $10,000, for just an hour of "work"? Again, by indulging in pricing scenarios, we've already established that folks woudl be willing to be a prostitute, we're just negotiating price, or the level of inducement. The movie Indecent Proposal exposed the dirty fact that some women would become a prostitute just once if the price were right. Oh, but that was just a movie, no women would take a million dollars for one night. Pure Hollywood fiction, I'm sure.

Continue reading "Money for Nothing and Your Chicks for Free" »

The Core Mystery of Quantum Mechanics

experiment light.jpgYou know I love physics. You know I don't understand it, but I do have some questions that need answering. Today's mystery involves quantum mechanics. Here's Richard Feynman's observation:

"I think I can safely say that nobody understands quantum mechanics... Do you not keep saying to yourself, if you can possibly avoid it, "But how can it be like that?" because you will get 'down the drain', into a blind alley from which nobody has escaped. Nobody knows how it can be like that."

It makes me feel a little better when a Nobel Prize winning physicist claims that nobody understands quantum mechanics, but surely, his lack of knowledge far exceeds most. With that in mind, let's review the fundamentals.

Matter, at the most basic level, behaves in odd ways. Everything around us is made up of atoms, and those atoms are made of even smaller things, and it is the behavior of those smaller things that describes the field of quantum mechanics. Things like photons and electrons can behave as either a particle, or a wave. Actually, I suppose you could say that an electron may "be" either a particle, or a wave. If the electron is a wave, then it will be found in many different places all at once, and this odd fact has been verified through the famous double-slit experiment.

The double-slit experiment takes one single photon (or electron) and shoots it at two tiny doors, or slits. Behind the two slits is a detector which will display which slit the photon went through. So, if a photon is only a particle, you would expect the detector to show that the photon landed behind only one of the two slits. After all, one "thing" can't fit through both openings. The problem is, when we shoot one photon at the two slits, a pattern emerges on the back wall detector. The pattern detected is one of interference--the kind of interference that can only be caused by that one photon going through both slits at the same time, and thus behaving as a wave. What's even more confusing is the fact that, if you decide to detect which of the two slits the photon will go through, it will indeed only go through one of the slits--and thus a different pattern will be shown on the detector screen. Yes, the photon somehow figured out it was being measured, so it only goes through one slit while being measured (no way to determine which slit, but that's another story).

Continue reading "The Core Mystery of Quantum Mechanics" »

How to Dismiss a Concealed Weapon Charge

gun held.jpg Here's a few basic principles of any criminal justice system. Juries are typically the fact finders. Judges are typically referees, calling balls and strikes throughout the process. But, what happens when the facts of a case are so weak that there is no need to have a jury trial? Well, we defense attorneys ask the judge to step into the fray, and make factual determination that will cause the case to be dismissed. Prosecutors don't want judges dismissing weak cases, because they know that many defendants cannot afford the risk of going to trial, even on weak facts. Technically, when a criminal defense attorney poses this question to a judge, it is in the form of a Motion to Dismiss. This motion tells the court that the facts of the case do not constitute the crime charged, so why waste time tax payer money? We're going to take a look one such waste of money, found in O.S. V. State, 120 So. 3d 130 (Fla. 3d DCA 2013).

O.S. was convicted of possession of a concealed weapon (brass knuckles) in his vehicle. Now, several issues may be examined in a concealed weapons case, issues regarding the stop of the vehicle, issues regarding constructive possession, or issues regarding the definition of a weapon. But the issue for today involves what constitutes "concealed". And, who gets to make a determination as to what is concealed--the judge, or the jury?

When O.S. was pulled over for a bad tag light (yes, a classic bogus stop) the officer asked him to step out of the car. Once the door opened, the officer "could observe the brass knuckles sitting in the pocket by the driver's door." Id. An important question on any concealed weapons charge involves the degree to which the weapon was recognized by the officer. In this case, the defense attorney's cross examination noted that the officer recognized the weapon "right away". Id. O.S. also admitted to the officer that he had the brass knuckles in the car.

Continue reading "How to Dismiss a Concealed Weapon Charge" »

A Violation of Probation for a Traffic Citation -- Is This Legal?

police car.jpg I've been practicing criminal defense here in Orange/Seminole/Osceola county for over twenty years. [these are the kind of boring sentences that excite my web optimizers, so bare with me, their arm hairs stand at attention because I'm 1) telling you folks I practice criminal defense, 2) telling you how long I've been doing it, and 3) telling you the geographic area that I practice] I'm not telling you this for SEO purposes, it is merely a disclaimer, since I don't have a lot of experience with violations of probation in other states. But, having no data whatsoever hasn't stopped me before, so here's my scientific findings: Florida probation officers violate probationers more than they "should." They violate probationers just because they are angry/frustrated with a probationer, rather than for actual legal reasons. And, I have several boring war stories involving probation officer antics, but I'm saving them for the next attorney conference in which we all huddle up at an expensive hotel and tell each other how we've "fought the good fight." Sure, it sounds like one big circle jerk (remember that band?), but we get CLE credits for it.

Anyway, I'm not troubled by the fact that a probation officer with no legal education and no law degree would concoct a violation that happens to be illegal. No surprise there. The shocker here is that some judges are signing violation warrants that are clearly illegal. Don't believe me? Let's take a look at Walker v. State, 120 So. 3d 96 (Fla. 4th DCA 2013).

Walker was initially sentenced to three years of probation. While on probation, it is alleged that Walker fled the police in his car, and his car twice bumped into a cop car during the chase. That car chase led to an arrest for aggravated battery on a law enforcement officer, refusing to stop when ordered (like a baby fleeing charge), resisting arrest with violence, and disobeying a traffic signal (running a red light). Naturally, his probation was violated. The judge found him guilty of his vop (violation of probation) and sentenced Walker to five years in prison. So, Walker appealed his violation, arguing that 1) the running a red light citation shouldn't have been a basis for a violation, and 2) his car "bumping" a police car did not constitute aggravated battery upon the officer inside. In case you're curious as to the finer points of this type of charge, you can find a sample Motion to Dismiss an aggravated battery on my website.

Continue reading "A Violation of Probation for a Traffic Citation -- Is This Legal?" »

Bad Closing Argument Gets Felony Conviction Reversed

dog eating.jpgHave you tried watching a cable news channel recently? I can't do it. There's always two to four talking heads arguing, and you can't even understand the point they're trying to make because they're talking over each other (at least "Around the Horn" on ESPN utilizes a MUTE button, very effective). Good luck trying to glean any sort of useful analysis from a cable news program. But, if you've never checkout out a real life debate, you should. Debates are organized, and often informative. The structure of a debate facilitates the digestion of difficult material in a short period of time (assuming, of course, that the debate organizers have selected the proper panel). One of my favorite sites for debates is Intelligence Squared. Most of these debates are well organized, and both sides are well represented.

Our criminal justice system has similar rules to these debates. Even though we criminal defense lawyers waive the Constitution every chance we get, our First Amendment right to free speech doesn't apply when a jury is listening. Under Florida's evidence code, a jury may only be told certain things regarding the evidence, certain things regarding the potential sentence (death penalty, for example), and certain things regarding the rules governing the jury's decision (reasonable doubt, weighing witness testimony, etc.).
We criminal lawyers don't get to say what we want to a jury. We don't get to tell the truth. We don't get to tell the jury that our client will go to prison for a minimum of three years for possessing $100 worth of pills. No free speech whatsoever. But, leave it to some prosecutors to attempt to circumvent the rules of evidence, and try to sneak a few lies in the back door. And, telling the jury lies is exactly what today's case study involves (ok, maybe the term "lie" is too strong of a word, read on, and you decide).

In Mitchell v. State, the defendant was convicted of animal cruelty. 118 So. 3d 295 (Fla. 3d DCA 2013). You're not going to like the facts of this case, but that's never stopped me from laying it out there. Mitchell and a few friends were eating some steaks, drinking some beer. So far, so good. One friend fed Mitchell's dog a piece of steak. Mitchell freaked out, and attempted to grab the steak back from the dog. Good luck with that, right? Right. The dog bit Mitchell--after all, we're talking about steak here, how did you expect the dog to react?

Continue reading "Bad Closing Argument Gets Felony Conviction Reversed" »

Can the State Benefit from the Illegal Activities of the Police?

police car.jpgOur criminal justice system punishes two parties--the government, and citizens (defendants). The government gets punished when it does something illegal in order to obtain evidence. Theoretically, such unconstitutional things don't happen, but we live in an imperfect world, and in order to deter the government from illegal searches and seizures we criminal defense lawyers get to "suppress" illegally obtained evidence.

Today we're going to discuss a Motion to Suppress in a fleeing and attempting to elude case. As you probably already know, motions ask the judge to do something. In a Motion to Suppress, a criminal defense attorney asks the court to suppress a piece of evidence. Sometimes, the effect of suppressing a key piece of evidence will be that the whole case must be dismissed. Other times, suppression simply makes life more difficult for the prosecutor. Either way, I'm happy.

In State v. Kirer, the defendant/driver wasn't breaking any traffic laws, but he failed to stop when the cop behind him turned on his lights, sirens, and P.A. system. 120 So. 3d 60 (Fla. 4th DCA 2013). Of course, once the P.A. system comes on, it should be no surprise that you're about to encounter one pissed off cop. The second nasty result of an officer wielding his P.A. system is that you tend to receive several more tickets than you deserve. Getting back to Kirer's case, he failed to stop in a timely manner, but the statute does not tell us how much time we have to stop. Is two minutes of failing to pull over a felony fleeing charge? Three minutes? Four? The problem here is "timing" and physics--time is relative, scientifically speaking (if it even exists at all, it is now called "spacetime"). Sure, I'm not qualified to go any further with this concept, but you get the point. Fleeing and attempting to elude charges are often based upon the mere opinion of a frustrated cop screaming through the P.A. for you to pull over. That being said, "cop time" is always very short. If you don't pull over instantly, law enforcement will assume you are fleeing and attempting to elude them. Many of us have seen the Rodney King beat down, YouTube is full of bad cop behavior, so it seems reasonable to pull our vehicle into a safe, well lit location, right?. Is there any law that you MUST pull over on the side of a dangerous highway with cars routinely exceeding the 70 mph limit? Well, yes, there's a fleeing charge--and it's a felony.

Continue reading "Can the State Benefit from the Illegal Activities of the Police?" »

Trafficking Conviction Overturned Due to Uncorraborated Anoymous Tip

hummer.jpg Whenever our government seeks to interrupt the movement of citizens, they are typically met with the question "why did you stop me, officer?" Of course, the police are at work and are also human, so they make mistakes at work just like the rest of us. If anyone on Earth needs thick skin, its cops, because their written reports are questioned on a daily basis by defense attorneys like me. The problem is, there are a few bad apples in the bunch who know "what to write" in order to legitimize their illegal activities. After more than twenty years of defending criminal cases, I have seen a few patterns arise, so I'll give you a true version of facts, and then note how it is written in its final lying format:

TRUTH: "On February 9, 2014, I, Officer X, conducted a traffic stop on the defendant for three reasons: 1. He is black in a white neighborhood, 2. He has dreadlocks, and 3. He's rolling on 28" rims, and this particular Chevy looks really bad rolling anything more than 18" rims." Sure, we all know that if you're riding on 28" rims--I don't care what the color of your skin is--you're asking the cops to pull you over. So, as a public service announcement to all those rim fanatics out there, please transport your drugs in a five year old white Honda Accord with no boom in the trunk. An AARP sticker would help, as would a Z88.3 Christian Radio sticker, "Safe for the Little Ears". In other words, these aren't the droids you're looking for....

Because no officer in his right mind would tell the truth as indicated above, below please find these same facts as they would appear on the official police report:

LIE: "On February 9, 2014, I, Officer X, conducted a traffic stop at midnight on the defendant because he was not wearing his seat belt, and his vehicle had illegal tint." Sure, I wrapped up two common lies into one sentence--the seat belt and the illegal tint. Yes, many cops can detect illegal tint levels at night, and see through these illegal tint levels to notice folks not wearing their seat belts. It happens.

Continue reading "Trafficking Conviction Overturned Due to Uncorraborated Anoymous Tip" »

Appeals Court Overturns Conviction based upon Sixth Amendment Violation

crumpled paper.jpgI'm seeing a scary trend. An unholy alliance between the legislature and judicial branch dedicated to concocting new laws that make convicting citizens easier. Tiny example: when I started defending criminal cases in 1993, I was permitted two closing arguments; the first closing, then a rebuttal after the state. Not anymore. The accused only get to make one closing argument.

Many technical rules of the court are tipping in favor of the state. Add to this the fact that the legislation itself has gotten out of control, we have more criminal laws on the books than ever before. And, lets not forget that our incarceration rates are through the roof. Oh, and can judges make sentencing decisions? Sort of, as long as they don't disagree with the mandatory minimum sentences. Yes, the constitution places limits on some of these changes, and one such limitation is found in the Sixth Amendment.

The Six Amendment states that "in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. This constitutional right is known as the Confrontation Clause, and it forces prosecutors to use live testimony in trial so that the accused may properly cross examine the witness against him, rather than permit prosecutors to admit pieces of paper which cannot be questioned. Recent Confrontation Clause case law from our U.S. Supreme Court has overturned state practices which permit papers to be introduced as evidence against citizens when the admission of such papers will not permit the accused to cross examine such. Massachusetts had a law which permitted the prosecution in drug cases to simply admit a lab report to identify what the drug was--that law was struck down because there is no way for the defendant to challenge the report, the testing procedure, the qualifications of the test operator, etc. (for more info, see my article here, on Melendez-Diaz v. Massachusetts).

Prosecutors like using documents instead of live testimony because defense attorneys cannot effectively cross examine a piece of paper. Defense attorney cross-examinations provide juries a greater level of understanding--and we all know knowledge seems to be something our government seeks to keep out of the juries hands. Don't get me wrong, I try to keep stuff out too, but I'm not an elected official sworn to seek know what I'm trying to do. Police work is only easy in a police state, and new laws and new court opinions that make police work easier simply erode what little freedom we have left. I'm not all doom and gloom here, as one recent Fourth District Court of Appeals case shut down a prosecutor and trial judge who permitted written testimony to be given to a jury in violation of the Sixth Amendment.

Continue reading "Appeals Court Overturns Conviction based upon Sixth Amendment Violation" »

Why Won't God Heal the Amputees?

logic.jpgI love debates. Not presidential debates, those aren't really debates. No, my favorite debates are philosophical, especially those that expose the intersection of science and philosophy (really, this boils down to atheists vs. theists). In one such debate, Michael Shermer was arguing against the existence of god, and felt that there wasn't a shred of evidence for miracles or supernatural activities, writing off all such talk as just wishful thinking. However, Shermer is a scientist at heart and claims to be open to new evidence, so he proposed the following: "if you could have God grow some new limbs of amputees of soldiers in the Iraq war, Christian soldiers with Christian families, praying for them to be healed--I would seriously consider that in changing my mind. So far, this has not happened, not even once. Apparently, God can't even do what amphibians can do in growing new limbs. If there's a purpose, surely we would see at least one sign like this. And yet, we have zero." [Debate - La Ciudad de las Ideas 2010] So, because there's no miracles that meet his high standard of proof--there must be no god.

After over twenty years of presenting arguments to courts and prosecutors, it's becoming easier to spot flawed logic. I'll be the first to admit that I've made my fair share of Shermer style arguments in jury trials, claiming that the government has not met their burden of "beyond a reasonable doubt". [Sure, the state has "evidence"; sure, the state has a "confession"; sure the state has "DNA"; but until you bring me a video of the incident on Blu-ray, the case hasn't been proven beyond a reasonable doubt!]

Anyone can move the bar higher and higher until no amount of evidence will prove the case. And we all know people like Shermer, who will not be convinced of something they do not want to believe, no matter how much evidence is presented. Maybe Shermer isn't claiming that the absence of amputee miracles indicates there is no god; maybe he's just giving us a glimpse of how much evidence it will take to convince him of such. But if a limb grew back on network television, some biologist would simply trace that regrowth to a rare DNA sequence left over from amphibians, possibly presenting further proof of evolution. See, evolution works!

How much "proof" is enough? In criminal defense work, we throw around the term "reasonable doubt", but few folks know what this really means (sadly, few attorneys as well). Take this example provided by Dave Chappelle, in a skit portraying jury selection for the R. Kelly trial (the singer was accused of video taping a sexual act involving him urinating on a 15 year girl--this transcript takes all the fun out of it, you should really watch the skit on YouTube or Comedy Central, its classic Chappelle):

Continue reading "Why Won't God Heal the Amputees?" »

A Good Story May Get a Burglary and Theft Charge Dismissed

storage lot.jpgLet's say you've just robbed a home, and you need to unload some merchandise. Where do you go? A pawn shop, maybe? Well, a pawn shop will take your fingerprints and ID, eventually convicting you of stealing the goods. No, you need Craigslist or Backpage, or, maybe just a few friends willing to buy this stuff.

A jury convicted Mark Yudin of burglary of a dwelling and grand theft in the case of Yudin v. State, 117 So. 3d 457 (2d DCA 2013). Yudin was convicted of taking a couple of televisions, a few laptops, a watch, jewelry, and personal items from a home (personal items like a passport, credit cards, etc). State witness David Cavanaugh testified at trial that he has bought used goods from Jerry Costa in the past, and Costa called him the day of the burglary claiming to have some stuff for sale. So, Costa arrives at Cavanaugh's house with an overstuffed car that looked so suspicious Cavanaugh's grandson called the police in broad daylight. How bad do you have to look for the police to get a suspicious person call during the day? Safe to say, this car full of stolen stuff could have been featured in an episode of World's Dumbest Criminals.

Anyway, Yudin drove Costa to Cavanaugh's home and assisted him in carrying several items from the car. Cavanaugh testified that Yudin took the lead on negotiations, but no prices were firmed up because the police arrived. When the police arrived, they noticed a "large disheveled pile of items in the back seat of Yudin's car. Poking out of the pile was a dresser drawer containing a variety of the victim's personal documents including his passport, social security card, and work identification card." Id. I'm torn as to whether or not I should believe the cop's story of stolen stuff sticking out of Yudin's car. It's just too convenient. Police reports are often remind me of that friend that is caught cheating on his wife, only to claim he accidentally tripped and fell into a willing woman's vagina. Sure, it could happen, in the middle of some sort of Cirque Du Soleil Zumanity rehearsals. Same goes for police reports. Cops never violate the constitution. They never break into a car without a warrant, never need to, because there's always some piece of incriminating evidence "poking out" which gives them probable cause to search without a warrant. Yep, pretty convenient. But in this case you should mark your calendars because I actually believe the police, given the fact that Cavanaugh's grandson thought the car looked so suspicious he called the police. If the car looked that bad, these guys were dumb enough to leave incriminating evidence "poking out".

Continue reading "A Good Story May Get a Burglary and Theft Charge Dismissed" »