All the lonely people, where do they all come from?  All the lonely people, where do they all belong?craigslist warning

There’s a certain art to getting people to do things that do not come naturally.    For example, American soldiers were not killing as many enemies in World War II as some would have preferred, so our government made changes to increase kill rates by the time we arrived in Vietnam.  One simple change involved shooting targets.  In WWII, soldiers practiced with bull’s-eye designs, but to boost kill rates, our government changed to silhouette targets of actual human beings.  (See Dave Grossman’s book “On Killing: The Psychological Cost of Learning to Kill in War and Society”).   These changes worked, and kill rates were much higher in Vietnam vs. WWII.  Now, at what cost did we increase the kill rate?  It has probably cost our soldiers more in mental agony than it is worth, though this is a subject of much debate (about which I know very little, but it might explain the higher rates of PTSD these days).  In much the same way that our military has changed how they train their soldiers to kill at a higher rate, law enforcement has changed the way they approach men in their undercover operations to catch sexual predators.  Again, at what cost?   Our court system seems to ignore law enforcement’s recent push to “create” the crime of traveling to meet a minor, rather than detect this criminal conduct.  When our government creates a crime, we typically call that “entrapment”.  When our government “detects” a crime, we typically call that “good police work”.

First of all, law enforcement has decided to pick the low hanging fruit: lonely, horny, men (possibly redundant, but not necessarily).  You may ask yourself, where does the government find all these lonely men to string along?  Craigslist, of course.  Specifically, the personal’s section “Women Seeking Men”, or “W4M”.  Now, you can’t just go straight to the w4m section.  Nope.  You must first heed the following warning from Craigslist: “By clicking the w4m link below you confirm that you are 18 or older and understand personals may include adult content.”  So, most rational human beings understand that the ads that follow are from women “18 or older”, right?  Let’s take a look at (another) a real life Craigslist case, Seo v. State, 143 So. 3d 1189 (Fla. 1st DCA 2014). Continue Reading

P1040115Lawyers fight about words.  And, even if we agree on the words used, we often disagree about the legal consequences of those words.  Today’s case is an example of just such a dispute.  In Tulier v. State, the defendant was convicted of attempted sexual activity with a minor for asking an illegal question.  147 So. 3d 1037 (Fla. 2nd DCA 2014).  According to the appellate court’s opinion, here’s what happened: “While driving an SUV, Tulier stopped at a stop sign.  The victim was on his bicycle in the crosswalk in front of Tulier.  As the victim passed, Tulier called out to him through his open passenger-side window.  The victim approached the passenger side of the vehicle walking but still astride his bicycle.  Tulier asked him through the open SUV window what his name was and how old he was.  The victim said his name and said that he was seventeen, although he was still sixteen at the time.  Tulier then asked the victim if he wanted to make $400, to which the victim asked how.  Tulier said, “Blow me.”  The victim immediately called his father on his cell phone, and his father told him to get the SUV’s tag number.” Id.

So, Tulier asked an underage boy to have sex with him, and that question led to a conviction for a felony sex offense.  Attempted sexual activity with a minor carries a lifetime of sex offender registrations, so it was important that Tulier’s defense attorney reduce the charge to something less serious—a solicitation.  Yes, there is a big difference between an attempt and a solicitation.  In general, an attempt goes beyond mere words into some overt act, whereas a solicitation is typically words only (however, ‘mere’ words can get you a conspiracy charge, a story for another day). Continue Reading

IMG_0251.JPGThere are more prescription drug arrests than ever before–primarily involving possession of oxycodone or hydrocodone. No, I don’t have stats to back that up, but you can just hear me now and believe me later. While there are many contributing factors to this record breaking arrest rate, the one factor near and dear to my heart is law enforcement’s poor handling of the situation.

The police have little motivation to do any sort of “investigation” when it comes to arrests for possession of a prescription medication. If you don’t have a prescription label on the bottle–you’re going to jail. Gee, that’s some investigation officer, good use of the Bachelor’s in Criminal Justice. For the oxycodone patient, it’s a vicious cycle. Oxycodone users don’t want to walk around with a labelled prescription bottle that advertises “valuable pills inside”, folks who leave their oxy labels on the bottle are the same sort of folks that leave their purse sitting on the front seat of their unlocked car. Sure, you can do it, but why risk people knowing what’s inside? To make matters worse, law enforcement is often too lazy to follow up on a citizen’s claim that the pills are possessed legally. I hate to be the one to remind folks that the good ‘ol days were actually pretty good when it came to police investigatory skills–I seem to recall a time when cops would actually investigate crimes. A novel concept, right? Investigations today are limited to fictional depictions like ABC’s Castle, or NCIS. But once upon a time, investigations actually existed.

Why won’t officers confronted with a citizen claiming a valid prescription simply make a few phone calls and ask a few questions? Many of these officers have bachelor’s degrees in criminal justice, while officers in years past had no such degrees but their investigative skills would run circles around the college cops of today. Apparently, it’s just easier to make one more drug arrest than to conduct an investigation. Ok, I’m done blibber blabbing. Here’s a real life example of what I’m talking about.
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One of the cool things about criminal law is that our evidence, disputes, and analysis are open to the public. All of our disagreements at motion hearings and trials are open to the public. If an “expert” claims that XYZ is true, that expert will be subject to cross-examination, and he or she must answer the opposing side’s questions (redundant, I know). This is not true of science. What we think of as “scientific truth” is subject to the whims of those who decide what will be published and who should be awarded research money. The culture of science discourages dissent, so science typically doesn’t advance based on honest debates about the evidence, but rather, “science advances one funeral at a time” (Max Planck). Dr. Henry Bauer, Professor Emeritus of Chemistry & Science at Virginia Tech, explains that for many “scientific truths”, “there are perfectly competent and well informed scientist who disagree on the basis of good evidence with what everyone else believes, and that this evidence and the arguments offered by these dissenters is simply ignored by their supposed peers, who seek to enforce an orthodoxy instead of assessing all the evidence with an open mind.” Bauer, Henry “Dogmatism in Science and Medicine

The criminal court system is far more intellectually honest than much of the scientific community. Criminal justice issues are subject to cross examination in a public forum, now, try getting a scientist to defend their views in a public and most will only show up if the opposition still believes the earth is flat. In criminal law, when several judges disagree, sometimes the Supreme Court will step in to resolve the dispute, and the entire process is open to the public. Every piece of evidence, every appellate brief, every oral argument. So today, we’re going to examine one of many disagreements percolating in Florida’s criminal courts regarding the popular criminal charge of driving while license suspended or revoked (DWLS).

At first glance, an arrest for driving while license suspended implies that the citizen at one time possessed a valid driver’s license that has since been suspended or revoked. But many folks in Florida have never had a driver’s license to begin with, and yet they still end up getting arrested for driving on their suspended (nonexistent) license. Should a person who has never had a license be convicted of driving on a suspended license? Florida courts disagree on this issue, so let’s begin the analysis with a (bad) case out of the Second District Court of Appeals, Carroll v. State, 761 So. 2d 417 (Fla. 2nd DCA 2000).
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IMG_1087.JPGForgive me for stating the obvious, but a criminal record will hurt your employment opportunities. A petit theft charge, for example, will limit job opportunities in retail stores because most retail stores suffer the majority of their losses at the hands of their employees–so these stores prefer to hire someone with a record of driving on a suspended license or marijuana possession, rather than theft.

And, while theft charges can put a dent in things, being a sex offender absolutely crushes any hope of ever being employed again. Period. Not a dishwasher (not that there’s anything wrong with that). Not flipping burgers, rolling burritos–nothing. Not only can sex offenders not find employment (double negative? Maybe not), good luck finding a place to live that isn’t within a 1000 feet of a school or playground. I’ve seen city’s set up playgrounds just to drive out sex offenders–so much for liberty and freedom to travel.

It should come as no surprise that the bleak employment prospects of sex offenders also translate into a life of living under bridges, and having no money (redundant, I know). To add insult to injury, when a sex offender moves from sleeping under one bridge to sleeping under another bridge, this change of address requires government intervention. You anti-government folks (me?) should be jumping up and down when the government tacks on requirements to a citizens’ movements once they’ve completed their prison time and probation.

So, a sex offender is required to do two things within 48 hours of any sort of overnight movements. First, Florida Statute 943.0435 requires the offender to register his change of address with the local sheriff’s office. The sheriff’s office will photograph the offender, take down the new address, and take fingerprints. Now, when I say change of address, I don’t mean the kind of change of address that we free citizens think of. For example, this past weekend my significant other and I drove down to Cedar Key for several days. That trip to Cedar Key would be a “temporary change of address” requiring fingerprints, new pictures, the whole nine yards in both locations–the place that I’m leaving and Cedar Key. Sounds un-American, right? All of this for folks that have already paid their debt to society, served their prison time, served their probation time, and served their Jimmy Ryce Act involuntary hospitalization for treatment (many of my clients who have endured being Jimmy Ryce’d find it worse than prison, but that’s a story for another day).

[PHOTO: I took this shot in St. Croix, just over a year ago, it’s one of the many places I imagine my self sitting there and doing nothing]
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stop sign driving.jpgViolations of probation can be difficult to prove, and this is especially true of VOP’s based upon a new arrest. An arrest is certainly enough to have a judge sign a No Bond VOP warrant, but the State will have to present more evidence than just a new arrest to sustain a VOP conviction. In summary: yes, you will be arrested for violating your probation based upon a new arrest–but no, the arrest alone is not enough to convict. To see how this plays out in real life, let’s take a look at Prater v. State, 2014 WL 2968842 (Fla. 5th DCA 2014).

BACKGROUND INFO: Prater was placed on probation after entering a plea to aggravated battery with a deadly weapon, and aggravated assault. He received 15 years of probation. Yes, I said fifteen. We all know that the Pope himself cannot successfully complete 15 years of probation. Some judges are well aware of this statistical fact, and impose long terms of probation for just that reason. One Orange County judge affectionately refers to probation as an “Early DOC Entry Program”, designed for those defendants that are not willing to take prison up front–just give them enough rope to hang themselves, and you can give them prison on the violation. Naturally, I don’t agree with giving clients sentences that they cannot handle; but then again, what I want doesn’t matter much. If a client wants something I know they can’t handle, I’ll try to negotiate comfortable options (jail?), but that’s all I can do. Too many lawyers out there think the clients work for them. Obviously, that’s not the case. I work for defendants. They tell me what to do, and I have to follow their lead even when my violation-radar is telling me that a probation plea is a bad idea. Anyway.
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Thumbnail image for IMG_0205.JPGAs you know, judges have an obligation to hand down “just” sentences. This is not an easy task, because our elected officials have meddled in the sentencing process, and created laws that are simply too harsh for the crime committed. When judges are confronted with a potential sentencing injustice, they have an escape valve known as a downward departure. In essence, if a defense attorney can convince the judge that certain mitigating circumstances are present, a trial judge may “downward depart” from the sentencing guidelines (so, if the legislature says the defendant must serve 10 years prison, the judge may ‘downward depart’ to give something lower, like 5 years prison, for reasons discussed below).

Sex offenses are the unofficial targets of ridiculous sentencing guidelines. For those of you who pay too much in taxes (all of you who actually pay taxes?), rest assured that sex offenses are that giant sucking sound Ross Perot thought he heard coming out of Mexico. But hey, why pay teachers the money they deserve when we can, instead, spend another $43,285/year housing a guy in prison for looking child porn? The sentence for possessing several hundred child pornographic images will exceed the minimum mandatory sentence given to a child molester, a rapist, and even some murderers (for more info, see my article found here).

How can we possibly stop the insanity? Judges look to the downward departure rules to help impose more reasonable sentences. To understand the kind of battles that ensue on the rare occasion that a judge departs on a sex case, let’s take a look at the downward departure found in State v. Davis, 141 So. 1230 (1st DCA 2014). Here’s what happened. Davis responded to an adults only dating website, specifically, to a 32 year old’s ad claiming that she and her “little sister” were in town, looking to have fun tonight. Naturally, the ad makes no mention as to how old the 32 year old’s sister really is, so Mr. Davis answers the ad. And, you know the rest of the story, but I’ll say it anyway. The 32 year old was actually a detective of unknown age (though, I presume of legal age, it’s hard to make detective by age 16). And, the promised ménage a trois (all the French I know, plus a few lines out of “Lady Marmalade”) is only twisted into something criminal once the detective has Davis hooked.
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basketball court.JPGI had an argument recently with a prosecutor (shocking, I know), and much of her reasoning centered around her repetition of the cliche “where there’s smoke, there’s fire”. The problem with such clichés is that the other side is basically acknowledging that they cannot respond to your position with any sort of intellectual vigor. Cliché’s avoid substantive arguments–and I’m in the business of making such arguments.

Our case for today is A.B. v. State, 141 So. 3d 647 (Fla. 4th DCA 2014). Here’s the scene: kids playing basketball at a city park, having a good time. Some kids are watching the game, some are on the court playing. The kids playing have left their cell phones and wallets off to the side of the court. At some point, the players noticed a couple of kids running from the area where they left their wallets and cell phones. Sure, enough, their stuff was gone. A.B. was one of the kids running away.

I know what you’re thinking, why run away if you’ve done nothing wrong, right? Well, remember, its kids we’re dealing with, that’s why we can’t use the defendant’s actual name, we have to use initials. Somehow, the cops caught up with A.B. about two weeks after the incident, and he told the officer “I can’t believe I am going down for this alone”. Id. at 648. Now, even if you believe what the officer says A.B. said (I often don’t, unless it’s recorded–every officer carries a recorder/cell phone), this statement isn’t quite a confession. It may be admission that he knows who did it, but it’s not quite a confession. The juvenile further explained that his friend issued the following command: “When I run, you run”. Assuming A.B’s friend is not some sort of pyrotechnical engineer about to launch a 4th of July Jubilee, this sort of statement is the universe’s way of telling you “some shit is about to go down”. Again, we’re dealing with kids here, and this statement probably resulted in a response like “uh, ok, huh” (think Beavis & Butthead).
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ky home.jpgAccountability is an important part of the relationship between our government and its citizens. Sure, we citizens can’t know everything, and that’s why a small percentage of our budget is known as the “Black Budget”. Black budgets are fine, so long as they represent some covert operations overseas trying to capture the terrorists de jour. But, there are also times when the government shows up at your front door. In cases like this, you would expect some accountability.

Hopefully, you’ve never had your house ransacked by 15 storm troopers at 3:30 a.m. I haven’t either, but I’ve seen pictures, and these homes are left a wreck (home search warrants are often conducted while you are sleeping, FYI). This sort of invasion of privacy can leave quite a scar. Imagine waking up to lots of guns and men with deep football coach voices barking out orders to remain still. A search warrant requires the home occupants to sit there in their undies (or less) while 12+ armed men proceed to stare at your significant other’s revealing sleepwear. No, you can’t put clothes on, as any search for clothing may just be an attempt to destroy evidence or find a gun. As you might expect from a male dominated endeavor like a home search, somehow overweight men are permitted to put on some clothes, but the ladies are required to simply hang out in their revealing nighties–while a dozen men take turns gawking. I’m just saying.

Anyway, such massive government invasions will leave a citizen asking the simple, age old question “Why?” Believe it or not, under current Florida law you are not entitled to know why. Yes, this is a ridiculous law, and I’m here to expose it.
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flag tattered.jpgHow long had human beings been ruled by Kings, Queens, Pharaohs, and the like? Then along comes the first big experiment in governance–we Americans decided to rule ourselves. Now, for this experiment to work, the powers that corrupt must be separated, so as to provide a check on each other’s behavior. And this, my friends, is straight out of your fourth grade government textbook, the one with the big flag on the front.

The judicial branch has long held the awesome responsibility of sentencing citizens when they break the law. Judges are in the best position to understand all the facts and circumstances surrounding an offense, so they can best decide the consequences. Unfortunately, the legislative branch decided that judges are not doing a good enough job at sentencing, so our elected officials created “minimum mandatory sentences”. If a person is found guilty of committing such an offense, the judge has no sentencing discretion–the judge must impose the minimum mandatory sentence. For example, if you are caught with enough weed, you would be “trafficking in cannabis”, and sentenced to a 3 year minimum mandatory prison sentence. The judge would have no option to go lower than three years prison.

But wait, there’s more. The Florida legislature has set forth some conditions under which, if all the planets align, a citizen may petition the judge for a lower sentence than the minimum mandatory. We call this a “downward departure” sentence, and the rules governing a downward departure can be found in Florida Statute 921.0026. This statute lists over 10 circumstances under which a judge may depart, such as (1) pursuant to a plea bargain, (2) defendant requires specialized treatment for a mental disorder, (3) the victim provoked the incident, (4) the defendant was too young at the time to appreciate the consequences of the offense, or (5) the defendant played a minor role in the offense.
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