Where Will Red Light Camera Tickets Go From Here?

green light 2.jpgThe case of the City of Hollywood v. Eric Arem case has sounded the death knell for red light camera citations all across Florida, in that the Fourth DCA has dismissed all citations because the City of Hollywood was subcontracting their citation writing to a third party company, and these duties cannot be delegated under current law. I discussed the details of this case a few days ago in an article you can find here, but our celebration may be short lived, as I'm sure the legislature will soon catch wind of this decision and re-write the statutes accordingly (we're talking about money, after all). Even after a change in the law, I still see problems for red light camera citations. So, let's briefly review how judges have bent over backwards to enforce these citations, and then how, eventually, these citations are bound to fail.

In the beginning, the focus of a red light camera defense involved keeping the video evidence out. Red light camera citations are all caught on video, so if the video doesn't come into evidence, the case must be dismissed. For those of you unfamiliar with a courtroom, we attorneys cannot simply approach the DVD player and push play. We must use testimony to establish that the video we are playing is a fair and accurate representation. The problem for the state is, law enforcement only has a few officers appear for these hearings. There is no one at the hearing from the camera company to testify about the installation, the calibration of the speed detector in the camera, or proof as to the equipment's condition (Is it in working order? When is it scheduled to be maintained?). So, the officers cannot establish the admissibility of their videos, but unfortunately, most judges will ignore the law and go ahead and play the video tape.

The defense attorney may then claim that the red light citation itself is invalid because it does not comply with the Florida Statutes. Citations must be mailed and then sent certified mail to the defendant. Do the officers at the hearing have any proof that this has been done? No. The officer may have a copy of the on line notice and the online ticket, photos and video. This is not enough to prove the notice requirements were complied with, but most judges disagree and shift the burden to the defendant to prove the government has failed to provide notice. Again, the judge is simply going to say "objection overruled, play the video".

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Red Light Cameras May Soon Be a Thing of the Past

red light5.jpgSome folks would say that technology has made our lives better. After all, without video cameras in the hands of citizens, there would be no way to refute an officer's testimony. And, the DNA testing of evidence in old rape cases has proven quite effective in setting hundreds of innocent inmates free, after decades behind bars. But, technology has also created it's fair share of problems, the most glaring of which has been the fact that fewer human labor hours are needed when a computer can answer a phone, or an automated system can provide customer service, or a few robots can build a car or manage a warehouse once full of employees. Even worse than this, however, is the fact that computers may one day be able to solve problems at a high level, taking the place of doctors, engineers, and lawyers (known as the P vs. NP problem). Sure, you're probably thinking this is just another pointless rant, but stay with me, I'm about to tie this into the red light camera problem.

A huge decision came down yesterday on the red light camera issue. In the case of City of Hollywood & State of Florida vs. Eric Arem (Fla. 4th DCA 2014, October 15, 2014, 4D12-1312), Mr. Arem appealed his conviction under Section 316.0083, formally known as the Mark Wandall Traffic Safety Program, a statute that authorizes local governments to use red light cameras to enforce violations of Section 316.074(1) and 316.075(1)(c)1 (laws prohibiting running a red light).

Now, the real problem lies in how local governments are enforcing these violations. The City of Hollywood (like most Florida cities with these cameras), subcontracted their red light enforcement to "American Traffic Solutions (ATS). ATS provides a one stop shop for these camera systems; they install the cameras, their computer monitors the recorded images, their computer uncovers potential violators, and their computer decides which images will be forwarded to law enforcement. The city will then review the images, and click an "accept" button if they would like ATS to print and mail the vehicle owner a citation. If the owner fails to pay the initial violation notice, ATS's computers will detect the non-payment, and automatically generate a uniform traffic citation, complete with a computer generated signature of a traffic infraction officer (TIEO).

Remember what I said about technology taking over everything?

I've oversimplified the process, but the problem the court had with this is simple: "only law enforcement officers and traffic enforcement officers have the legal authority to issue citations for traffic infractions, which means only law enforcement officers and traffic enforcement officers are entitled to determine who gets prosecuted for red light violation." Id. at 7. Now, things get a little muddy, because Florida law does "permit cities to delegate the review of information obtained from a traffic infraction detector, it [does] not permit cities to delegate their authority to issue any resulting traffic citations anywhere in these statutes." Id. And, that's exactly what ATS is doing, issuing multiple citations. The district court of appeals detailed the problem as this:

"For all practical purposes, it is the vendor that decides which cases the TIEO gets to review; it is the vendor who initially determines who is subject to prosecution for a red light violation; it is the vendor that obtains the information necessary for the completion of the citation; it is the vendor that creates the actual citation; it is the vendor that issues the citation to the registered owner of the vehicle; and, it is the vendor that eventually transmits the traffic citation data to the court . . . . Under these circumstances, it cannot be said that this is the legal equivalent of a TIEO (traffic infraction officer) issuing the citation, especially when it is the third-party vendor that controls what information is, or is not, made available for the officer's consideration."

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How SpaghettiOs Can Get You Arrested

spaghetti.jpgModern technology has blessed us with the ability to question law enforcement in more ways than ever before. We no longer need to "take their word for it". For example, video cameras are on every cell phone. Videos of cops abusing citizens now have their own channels on YouTube.

Video may be the great equalizer, but another technological advancement that has contributed to our freedom is laboratory analysis. Yes, folks who have spent most of their adult lives in prison for rapes they did not commit, have been freed by the analysis of physical evidence years later (DNA, for example. I've written some articles about these tear jerking Shawshank stories, which you can find here).

But, what happens when the police do not utilize technology? What happens when the dash cam on the police car "isn't working", or "wasn't turned on"? Unfortunately, what happens is that the police rely on their "training and experience". Whenever you hear an officer utter the words "based upon my training and experience", here's the translation: "I'm about to make something up", or, "I have no evidence to support what I'm about to say". Lots of bad things happen when officers rely on their 'training and experience', rather than on science, or even good detective work. Orlando is seeing numerous arrests for possession of prescription medications, especially pain pills, and many of these folks have a valid prescription (who wants to carry around a bottle of 180 oxycodone's when you can put a few in your pocket, men don't have that carrying capacity in their jeans). Now, a simple call to the 24 hour Walgreens would solve the case, but the road patrol officers making these felony arrests are not interested in lifting a finger. One phone call is simply too much to ask. Arrest now, ask questions later. The taxpayers will pick up the bill, and never complain.

The lack of any sort of investigation on the part of law enforcement in drug cases is now at epidemic levels. And this brings us to the case of the day, Ashley Huff. She was arrested in Gainsville (GA) for possession of methamphetamine after permitting a search of her car. The search revealed a plastic baggie in her purse, with the name "Ashley" on it, plus a spoon was in the bag. Ah ha! A spoon! She must be cooking meth, right? Not only did they find a spoon, but the police indicated that Ashley began to get "nervous" when they found the spoon. Boy, I'm sure these officers thought they had a slam dunk felony drug case now. But wait, it gets better. The spoon had a "clear, crystal-like substance" on it. Guilty as charged, why even get the court system involved at this point? After all, 'based on the officer's training and experience' the "clear, crystal-like substance" was methamphetamine.

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Can PTI Be Revoked For a New Arrest?

avoid potholes.jpgThere's a couple things you should know about human nature before we delve into the case law today. First, there's the ever present Murphy's Law. I don't agree that "Anything that can go wrong, will go wrong", but, I can't deny the bumper sticker truth of "Sh** Happens". And, while we're talking bumper stickers, I prefer the "If Anything Can Go Well, It Will". That being said, I'm here to tell you that once the government gets involved in your life, you're probably operating under Murphy's Law, and not the more fuzzy positive laws out there. It seems to me that the government just doesn't attract positivity to anyone's lives (yes, that's a tad pessimistic, and I have no statistics to back that up).

Remember, American "justice" incarcerates more human beings than any other government on planet earth. Even more than China's "published rates". And sure, some countries probably just put folks before a firing squad rather than incarcerate them for life. I get that. So, these incarceration statistics don't tell the whole story, but they're still pretty scary. And, Florida's incarceration rate ranks our state in the Top Ten of all the countries in the world. Yes, business is good. But no, I'm not proud of this.

The good news is, first time offenders have several options that provide a glimmer of hope. First offenders are eligible for programs designed to dismiss all charges--once the citizen completes community service and drug treatment. Usually, these programs are run by the prosecutor's office, and are called things like "pretrial diversion (PTD)", pretrial intervention (PTI), or County Diversion Program (CDP). Whatever the title, they all fall under the general heading of "diversion programs". The prosecutors control the vast majority of these programs, but some programs may be initiated by the judge (even if the state disagrees; click here for more info). In Orange County, Seminole County, and Osceola County, the prosecutors run their own "diversion" programs that require a few hoops to be jumped through, and then the case is dismissed (even DUI's). It's a beautiful thing. The question is, what power does the prosecutor have in revoking diversion, once a citizen is enrolled?

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How Cameras Affect Police Behavior

September 18, 2014 by The Law Office of John Guidry II

camera warning.jpgEveryone now has phones with cameras, and the world is not necessarily a better place as a result. For example, we've seen huge declines in topless sunbathers in France, for fear that "you can end up topless on your own Facebook wall." [ See "The Real Reason French Women Have Stopped Sunbathing Topless, The Guardian, Morwenna Ferrier, July 28, 2014] This is sad development, indeed.

Modern technology is now in the hands of the police. No, I'm not speaking of mine-resistant ambush protected armored vehicles (MRAPs)--police departments actually own such things--but I'm talking basic, cheap technology--like video cameras. Some police now have video cameras in their police cars, and "body cams" on their chest. Is this a good thing? Yes, and no. Here's why. Video not only protects citizens--video can reveal the truth (who could possibly be against "truth"?). Video also provides accountability, and, it may even tame the nasty customer service skills of some officers.

When I started defending criminal cases back in 1993, the Orange County Sheriff's Office began experimenting with video cameras in patrol vehicles. Guess what happened? We defense attorneys started winning more DUI trials. Why? Without video, the officer (shiny badge and trained to testify) went before the jury and describe the defendant's drunken state. The jury leaned in, and believed every word. With video, the jury was no longer required to "take the officer's word for it". They could see it for themselves, and the drivers looked far better than the officer's description. So, guess what? The sheriff's office pulled all the video cameras from their vehicles. Well, almost all. Through some miracle of science, an occasional DUI video would pop into existence out of nowhere--but only if the driver was falling down drunk, vomiting. Yes, vomit was about the only thing video taped by early dash cams, and they came out of nowhere. Hey, I guess if some people believe our gigantic universe popped into existence from nowhere, how hard is it to believe that a tiny little video can come from nowhere?

The good news is, times are changing. There are more videos than ever. Unfortunately, some police officers have learned how to work the video system. The new trick is to testify on the video to things that can't, necessarily, be seen. A few common catch phrases are:

"Stop resisting, stop resisting!" (reminds me of "stop hitting yourself")

"I saw the dope, where did you hide it?"

"Stop trying to take my gun" (click here to see a video of cop yelling 'stop trying to take my gun', when, in fact, the man's hands were in the air. Cops hid the video--but when it was found--cops were fired and indicted for fraud)

"It's Coming Right For Us" - South Park episode, in order to avoid Colorado hunting laws, hunters can shoot animals out of season in "self-defense", so Cartman and the gang are taught to yell "it's coming right for us" before every shot fired. No, this isn't really related to the topic of the day.

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Another Bogus Loitering & Prowling Charge Dismissed

September 14, 2014 by The Law Office of John Guidry II

crowbar.jpgMany folks live with a constant fear of police abuse. From what I've seen over the years, that fear is completely understandable, depending upon location, and economic standings. And, there are several different ways law enforcement abuse we citizens. Some ways are subtle, like the "I smell the odor of cannabis, so I'm going to search your car" routine. This has never happened to my white 98 year old grandpa, but it does happen to my teenage black clients. Now, part of this may be due to the fact that my grandpa doesn't smoke weed (that I know of). And also, it is shocking (even to me) that my grandfather is still driving at his age (but the DMV renewed his license through age 103--so go figure). Aside from the "I smell weed" searches, I also see plenty of abuse via loitering and prowling arrests. Most judges are fairly suspicious of loitering cases, and they have good reason for such concern. One appeals court put it this way:

"Because of its potential for abuse, the loitering and prowling statute must be applied with special care. It cannot be emphasized enough that the loitering and prowling statute is not to be used as a "catchall" provision whereby police may arrest citizens where there is no other basis which would justify their detention. Instead, the proper application of this statute requires a delicate balancing between the protection of the rights of individuals and the protection of individual citizens from imminent criminal danger to their persons or property." Mills v. State, 58 So. 3d 936, 939 (Fla. 2d DCA 2011).

So, armed with a bit of healthy skepticism, let's take a look at a recent loitering and prowling case of C.C. v. State. 137 So. 3d 466 (Fla. 4th DCA 2014).

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Florida's DHSMV picks a fight with County Court Judges

dmv memo.JPGFor those of you that have kids, you've heard the phrase "no, I won't do it." Well, most kids don't really say "no, I'm not going to do that", but if you listen close to their responses, a parental translation of statements like "when I'm done watching this show" or "I've got homework to do" translates to just about the same thing as "whatever you are asking, I'm not going to do it".

This sort of immature response happens in government as well. Executive orders are drafted by presidents, on things that should have been voted on by the people's representatives. And, governmental agencies pass "regulations" that can send you to jail, even though our legislature and governor never approved such. And, these sort of government tiffs occur even on the smallest of scales. Take, for example, the dispute between Florida's county court judges, and Florida's Department of Highway Safety and Motor Vehicles (DHSMV).

Now, I know what you're thinking--how can one government organization tell another "No, I'm not going to do that"? Well, because it is possible that government officials are reading this article, especially DHSMV folks, and because these workers may not recall the finer points of their middle school political science class--here's a one sentence review. The United States has this thing called separation of powers, and that means that the legislative branch passes laws, the executive branch carries out these laws, and the judicial branch has the final say as far as the interpretation of these laws. Yes, somebody has to have the last word, and it's the judicial branch.

[background info: on traffic cases, criminal or civil, a "conviction" will lead to points being assessed on your driving record, but a "withhold of adjudication" will not lead to points on the driving record, because a "withhold" means--technically--that you were not convicted of the traffic violation. FYI]

Florida's DHSMV fired the first shot at county court judges when a DHSMV Chief, Maureen Johnson, sent a memorandum to all Florida Clerks of Court explaining that the DHSMV would be rejecting any Judge's withhold of adjudication for a CDL driver. The memorandum cites Florida Statute 318.14(9) as its basis, yet that statute only prohibits CDL drivers from electing driving school in order to get a withhold. The memo from DHSMV rejects all withholds for CDL drivers, not just the withholds received by electing the driving school. Now, think about this for a minute. You're a CDL driver. You challenge your citation in court, in front of a judge. That judge issues a withhold of adjudication, based upon the evidence and facts presented to the judge at the hearing. The DHSMV then rejects the judge's withhold of adjudication. As stated in the memorandum to all Florida clerks, the DHSMV doesn't care what the judge says, they're going to reject all withholds for CDL drivers.

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Possession of Alprazolam and Hydrocodone Convictions Overturned

perscription pill bottle.jpgYes, the title of this article gives away the ending, but it's the journey, not the destination.

FACTS: Daniel Shedd is just chilling, drinking a beer, driving his mom's car, when he was stopped by the Florida Highway Patrol (FHP). Shedd v. State, 137 So. 3d 456 (Fla. 4th DCA 2014). FHP chats him up, and Daniel reveals to the officer that he has a prescription pill habit. In case you didn't know, telling a cop you have a drug habit is like a sorority girl announcing to the frat party that she's a nymphomaniac--there's going to be some shenanigans as a result of this announcement. So, with Daniel's announcement comes the obligatory search of the car, and Daniel is arrested for possession of marijuana, possession of alprazolam (Xanax), and possession of hydrocodone (it's also a crime to have an open container of alcohol in the car, but I guess they let that one slide).

It never ceases to amaze me that people drinking a beer, and driving, drive horribly. If you're doing something wrong, can't you drive like a normal human being? Daniel takes it a step further, because not only is he driving bad and drinking--he has marijuana in the car, Xanax in the car, and hydrocodone in the car. It is possible that the Golden Coral buffet o' drugs in Daniel's car gave him a surge of poor driving adrenaline, just enough to draw law enforcement's attention. However, things started looking better for Daniel when he explained to the cop that the alprazolam and hydrocodone both belong to his mother (indeed, the car even belongs to mom).

Actually, not only did the pills belong to mom, the pill bottles had mom's name written on them. So, assuming the FHP officer could read, how hard can this be for FHP to verify? Unfortunately, the old "these drugs belong to my mom" routine doesn't always work, because law enforcement often lack the skills/desire/work ethic needed to do a simple investigation. If you think law enforcement investigations resemble that of NCIS or even Angela Landsbury, you're sadly mistaken. Investigations into felony prescription drug offenses are pretty rare. In this case, if FHP would have taken just a few minutes to contact mom and verify that the pills were hers, we taxpayers would not have had to pay for two felony drug arrests. But, why save taxpayers money? After all, can't we just raise the sales tax another ½ cent?

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Recorded Jail Calls Causing Problems Again

tape-recorder.jpgLet's face it, we have too many criminal cases, and not enough juries to try them. That's OK, because most cases never make it to trial. The legislature knows that the majority of criminal cases are plead to, so it is important to protect the plea process. As you will see below, there are several Florida laws designed to keep plea information away from the jury.

In Florida, we defense attorneys are not entitled to tell the jury about sentencing issues. It doesn't seem fair that the citizens are kept in the dark about the consequences of their verdict--but those are the rules. And, the difference between a plea and a loss at trial can be devastating. For example, almost twenty years ago, I was a public defender in front of Judge Conrad (great judge, but harsh). It was my first week in "felony", and I was shadowing my colleague, whose client was offered one month probation on a misdemeanor for a charges carrying a maximum of 45 years in prison. The client rejected the one month probationary offer and he lost at trial. Judge Conrad gave him 42 years in prison. I will never forget that. But, that's why some folks simply take a plea deal--even though they're innocent--because the risk of losing is too great.

So, we know that the jury is not entitled to hear anything about sentencing. Is the jury entitled to learn of plea negotiations? Can they hear anything connected to a plea? It doesn't seem fair to tell the jury about plea negotiations, knowing that they cannot be told about sentencing options. Take our case listed above. Would the jury have been horrified to discover a 42 year prison sentence after hearing about a one month probation offer?

The question for the day is, to what extent can a jury be told of plea negotiations?

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Innocent People Submit to Guilty Pleas

football.jpgLast year, a lawyer referred me a case. Now, there's nothing new about that, this happens all the time (And, I appreciate the love from non-criminal lawyers. Yes, I equate getting cash with love, can't help it). Here's the facts: Years ago, a young gentleman pled to a serious charge, and completed all of his probation. Years later, the prosecutor discovered, by accident, that his victim made up the whole story to get my client in trouble.

This may be shocking to Joe Q. Public, but we defense lawyers witness "victims" lying to prosecutors all the time. Unfortunately, few prosecutors have the time to question their "victim's" sincerity. What made my case unique is the fact that the original prosecutor uncovered his own victim's lies--and wanted something to be done to correct the situation. You see, there are some good people out there who happen to be lawyers, and furthermore, they happen to be prosecutors. Unfortunately, the original prosecutor left the office just after uncovering the lies, so I had to deal with a new prosecutor.

Negotiations with the new prosecutor did not go well, even though she knew her colleague's position. The "new" assistant state attorney could not believe that my client was 100% innocent because "he must have been guilty; he entered a plea." I just about fell over. I really like this prosecutor, but she clearly missed the mark on this one. Innocent citizens enter pleas all the time, because the risk of trial is too great. Those who have been around the criminal justice system understand that there are people in prison--right now--who are completely innocent, but entered a plea to avoid even further damage. [By the way, the judge overturned my client's plea and dismissed the charges--over the prosecutor's objections, of course]

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$5,000 fine for Solicitation to Commit Prostitution declared Unconstitutional

high heels.jpgIt's time, again, to compare Florida's laws to the rest of the world. Here in Florida, beating your wife--in front of your young kids yelling "stop hurting mommy"--carries a maximum fine is $1,000 and possibly jail time (of course, therapy for the kids will cost more than that). But, asking an undercover cop for $40 worth of sex will get you a $500 fine plus a mandatory $5,000 civil fine. That's right. Consenting adults, a $5,000 mandatory fine. Kid's yelling "stop hurting mommy" = $1,000 fine (max).

Technically, there isn't a misdemeanor in Florida that carries a greater financial penalty than soliciting sex. A $5,000 mandatory fine sounds like something out of Middle Eastern country, maybe Turkey. No, prostitution is legal in Turkey (it's the Middle East, how can that be?). How about those uptight Brits? Nope, prostitution is legal in the UK. Well, surely this $5,000 fine could be imposed by the predominantly Catholic Mexicans south of the border, right? Wrong, prostitution is legal in Mexico. Hum. Maybe the Russians would impose $5,000 mandatory fine? Sorry. In Russia, prostitution is like a speeding ticket, carrying a maximum fine of $65; it's not criminal. But, as luck would have it, the good old State of Florida has a $5,000 mandatory fine attached to asking for sex from a prostitute. Florida has managed to make it into the top ten for our incarceration rate (worldwide), so it should come as no surprise that our fines are just as excessive as our incarceration rates. But, the times, they are a changin'.

Recently, a rare dose of common sense has sprung up out of Broward County. In the case of State v. Javares Jones (12-21991MM10A), Judge Kenneth Gottlieb found that the mandatory $5,000 civil fine attached to a Solicitation of Prostitution was unconstitutional. The facts of the case are pretty straight forward. Jones entered a plea to a second-degree misdemeanor Solicitation of Prostitution on January 21, 2014, and the court imposed a "mandatory civil penalty of $5,000", pursuant to Section 796.07(6) of the Florida Statutes. Yes, this is a lot of money, especially when you consider the fact that a second degree misdemeanor carries a maximum fine of $500, and up to 60 days in jail. We all know that $5,000 is a bit excessive, but how do you prove such?

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What Is a Cop Qualified to Tell a Jury?

no masks.jpgEver meet someone that thinks they know everything? Such folks present a unique problem for the court system, as judges must tailor witness testimony to only those things which a witness is qualified to discuss. Could you imagine if the corporate news channels had such a filter on their commentators? How many times have you seen someone on TV talking about the Constitution, yet they haven't read it? How many times have you heard someone presenting a particular political position, say, a Marxist position, for example, and yet you know this person has never read Marx? Never read Das Capital? Usually, these folks have only read what someone else has written about Marx, or what someone else has written about what someone else has written about Marx.

In criminal trials, witnesses are limited in their ability to give an opinion to the jury. Today, we're going to take a look at Alvarez v. State, 2014 Fla. App. LEXIS 583 (Fla. 4th DCA 2014). Alvarez and a co-defendant were convicted of robbery and first degree murder with a firearm (while masked) after two Circle K employees were killed during a robbery. The store's video surveillance showed two robbers enter with masks and gloves, one had a handgun, one had a rifle. One state witness claimed that she picked up Alvarez from nearby the Circle K after the robbery, and he was frantic, carrying a gun--but she didn't know about the robbery.

The prosecutor put the detective on the stand, and asked him if he viewed the surveillance footage of the masked murderers. Yes, he had, "probably fifty to seventy-five" times. . . to try to gather more information, more evidence. Get a better understanding. Try to identify certain things, the firearms or the people involved". id. Naturally, the defense attorneys objected to this testimony, as the video was already placed into evidence, the jury has already seen the video, and it was improper to let the officer give an identification opinion from the video because the officer "hasn't been qualified as an expert on identification or anything. And we don't want him to give any opinions about what any of the evidence means. That's up to the jury."

The defense attorneys continued their objection, but the judge permitted the officer to tell the jury that, after viewing the video several times, he was able to make a determination as to the color of the skin of the suspects, and identity of the suspects. The prosecutor asked the detective if he could "ID anyone and was able to see their faces on video with clarity to make an identification . . . The detective said 'yes'". Id. Is this permissible? Mind you, the jury has seen the video, and they can watch as much as they like at the end of the trial.

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Religion and Judges

Christ the King.jpg I've been in front of many many judges over my 21+ years practicing criminal defense. Their job is simple--to referee the game. Nobody comes to the game to see the referee, but how these judges call the game may influence the outcome. As the old saying goes, a good lawyer knows the law, and a great lawyer knows the judge. That's true, but knowing a judge's religious beliefs will not necessarily provide you with any more knowledge as to how harsh, or lenient, that judge may be. That fact is probably a sad commentary on how our beliefs affect our decisions at work. As a Christian, I wouldn't make a very good judge, because Christianity requires a bit a mercy and love. Mercy, essentially, suspends justice. But as a judge, your job is to dispense justice, not mercy. It is disappointing for me to see judges that call themselves Christians hand down completely unmerciful decisions. We're going to take a look at just such a decision today.

Recently, an appeals court overturned a rape sentencing due to judicial comments regarding religion. Obviously, religion has no place in the courtroom, but as a defense attorney, a tad bit of mercy every now and then is much appreciated. And, to no surprise to some of you, but much of the judicial mercy I've seen comes from judges that are not particularly religious. To make matters worse, the harsh sentences often come from so-called religious judges. Again, hypocrisy can be frustrating, but certainly not surprising. Today, let's examine the role religion is permitted to play in the sentencing of Florida's defendants. The case is Torres v. State, 124 So. 3d 439 (Fla. 1st DCA 2013).

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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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