franklin-graham-award-winners-e1484091990549-225x300When you first become a lawyer, it’s a special feeling.  Everything is new, and egos are out of control (new lawyers are the worst, trust me).   Back in 1993, I joined Joe DuRocher’s Public Defender’s office and was thrust into a glorious pot of new attorneys, many of whom are now judges, friends, or both.  Jimmie “David” Gentle was in that group, and we have been friends ever since.   David has taken a different path of late, which we’ll get to eventually.  First, why are we talking about our old boss?

Well, I’m getting more and more sentimental these days.  My morning routine involves listing a few things I’m thankful for, and rather consistently, I have deep gratitude toward my old boss Joe DuRocher.  Joe passed on in 2012, and I miss him.  Also, I owe him.  He gave me not just a job, but a great career.  I’ll never be able to repay him for that.  The problem is, I struggle to recall all the stories Joe had for we attorneys, so, I did what I always do when I need to know something–I Googled Joe Durocher.  I didn’t find much.

I decided to call David, hoping he could recall some stories.  Joe had great stories.  The problem is, many of the stories were told during our monthly PD staff meetings.  I was “too busy” with my PD case load to pay much attention  (as much as I try to make myself look good via this blog, I have to admit that ‘being busy’ simply means that things were out of control.  In that sense, and in a financial sense, I don’t miss the life of a public defender).  Anyway, I do miss Joe’s stories, so, can I get some help here?  Yes.  That’s where David Gentle comes in. Continue Reading

Some things are simply hard to explain.cross-300x224

Why is there something rather than nothing?

How did self-conscious beings arise out of lifeless star dust?

And, how can prosecutors be so cold-hearted?

To help answer question number three, above, we’re going to review a recent case.  To mentally prep you, let’s start with some stretching exercises.  For sentencing purposes, assume that drugs are bad, and selling them is even worse.  Contrary to what you’ve seen on TV, most of the drug sales force out there consist of poor people trying to support their habit.   They don’t own fast cars or 22″ rims.  And, it’s probably a myth that they’re “selling” anything.  Philosopher Chris Rock argues that no one really “sells” drugs–drugs sell themselves.  If you can get someone to buy life insurance, you’re a sales person with real sales skills.

Anyway, our true story of the day involves a single mother of three young children, and she was caught selling drugs in order to support her addiction.  State v. Sawyer, 2016 Fla. App. LEXIS 17723 (Fla. 1st DCA 2016).  The penalties facing Ms. Sawyer were steep.  She scored a minimum prison term of 39 months, a maximum sentence of 15 years prison.  But, does minimum really mean minimum?  Well, not really, ’cause you know sometimes words have two meanings’, as Robert Plant would sing.

Obviously, Ms. Sawyer’s defense attorney wanted the judge to give her something less than the minimum sentence, but to do that she would have to qualify for a downward departure.  I know, boring legal terminology just a few sentences into this.  Sorry.  And, this mandatory prison term clouds other important issues, like, does Ms. Sawyer deserve over three years in prison?  What will that cost taxpayers?  Why wouldn’t we address Ms. Sawyer’s addiction, and have her ready to raise her three kids?  Isn’t it cheaper for the taxpayers, and better for society?

These questions were irrelevant to the prosecutor.  The knee-jerk reaction to someone scoring prison is, “give them the prison time” (you know that when your knee jerks your brain isn’t even processing information).  Some folks would say that your success in life is directly related to the number of uncomfortable conversations you are willing to have.  I’ve had plenty of these uncomfortable conversations with prosecutors unwilling to think these matters through.   Why think?  The legislature has mandated a prison term, so we don’t have to give any thought to this, right?    Well, we’re going to do some thinking here.   Was Ms. Sawyer’s attorney able to get her to qualify for less than 39 months via a downward departure?   Continue Reading

I realize that none of you are pigs.  That being said, let’s review a common scenario that will come as a shock toiphone-passcode-169x300 my wholesome readership.  Imagine an attractive woman is shopping in Isle Five–the feminine hygiene isle–and she finds herself surrounded by men looking at the same products.  Are these men purchasing awkward products for their lady at home, or checking her out?

Real life example number 2: A friend of mine worked for a major hardware store (their logo is orange, you figure it out).  Roughly 85% of the male employee’s walkie-talkie chatter involves notifying other employees of “yoga pants in Isle 12”, or “short shorts in Isle 22”.  I’m just saying.

“The beautiful people” are not the only targets of creepy gawking shoppers.  Sometimes, even the not-so-attractive folks attract a crowd.  To confirm this, visit a website called “The People of Walmart” (www.peopleofwalmart.com).  Be Warned: you cannot “un-see” some of these images.  Suffice it to say that folks shopping late night at Walmart fail to pull up their pants, or bend over while wearing club skirts too short to permit any sort of bending.  You’ve heard stories that start with “You won’t believe what I saw at Walmart last night”– those stories are real. Continue Reading

graceGod and the Devil were walking down the street, and God picked up something out of a ditch.  The Devil asked God “Hey, what’s that you have in your hand?”  God said “It’s the Truth”.  The Devil said, “Give that to me and I’ll help organize it.”

I enjoy observing how different religions organize their interpretation of the truth.   My enjoyment doesn’t involve the kind of condescension a modern scientist may have towards a primitive tribe buried deep in the jungle (how dare they refuse the enlightenment and progress of science).   My enjoyment of various religions comes from the fact that there may be a bit of truth sprinkled throughout the world’s traditions. That being said, I must confess that it is difficult to interpret Christian Speak or Christianese–and I’ve been a Christian the vast majority of my life (I’ve had my doubts, which makes me sympathize with atheists more than your average follower of a Torah observant Jew).

In many churches, I simply do not understand what they are saying.  Yes, I read the Bible.  Yes, I have a Masters Degree and a Juris Doctorate degree, so all of this thinly veiled boasting implies a level of linguistic skills that should get me through a church service, right?   Wrong. Christian phrases and mantras leave me scratching my head.  What does it mean when a Christian church claims to be “Gospel centered”?  I don’t know what this means.  The good news is, fun with words is not limited to faith.  Card games have now capitalized on ambiguous phrases.  Just try playing “Cards Against Humanity” with someone unfamiliar with politics or porn.  Half the fun of a word game like “Cards Against Humanity” is trying to explain terms like “glory hole” to someone who has never seen porn.

Anyway, our next big word for today is Grace.  The word rarely gets a mention in criminal court rooms, but there is one exception to the rule.   Florida Statute 948.05 states that a judge may, at any time, “discharge the probationer or offender in community control from further supervision”.   This, my friends, is what we call “early termination of probation”.  And, it is entirely a matter of grace.   Continue Reading

To understand how long it takes to expunge a case, let’s indulge in a fantasy.  Imagine an American company makes Teddy Bears in an Orlando factory.  The factoryexpunge no objection employs teenagers to sew the bears together and ship them out (unrealistic, because teenagers don’t work in factories, and we don’t have factories in Orlando, do we?  No, cheesecakes don’t count).

At this imaginary factory, three employees do all the work.  Cindy attaches the arms and legs.  George attaches the eyes and ears.  And, Bill puts the tag on, boxes up the bear, and ships bears to happy children everywhere.

How long does it take to make a teddy bear?  That depends.

Let’s say you walk into this Teddy Bear factory and notice that Bill is sitting around twiddling his thumbs.  He has no bears to bag and tag (as the coroners office would say).  Why are there no bears to ship?  Because George has 1,000 bears stacked up at his desk waiting for eyes and ears.  It will take a week for George to catch up.  This, my friends, is what we call a bottleneck.  Now that we’ve refreshed your recollection of 9th grade economics, let’s dig deeper. Continue Reading

I rarely watch horror movies, but I’ve seen enough to know that most of the plots focus on young white kids IMG_3441doing something stupid.  I define stupid as entering a creepy abandon house for no good reason.  Many stand up comics have good rants on the horror film behavior of black people versus white people.  A complete list of these differences was teased out by comedian Orlando Jones, and it can be found here.  For example, Orlando believes that black folks would never “adopt a kid who turns out to be the devil”, or “eat grilled chicken”, and these are common activities for white horror film stars.   Eddie Murphy believes that horror films will never star black folks because if “there’s a ghost in the house, [black people] get the fuck out”.  The movie would last 30 seconds.  No needless investigations of what’s lurking downstairs.  (See Eddie Murphy’s  “Delirious“, it’s worth a viewing even if it means you forget about reading the rest of this, it’s just that good)

There’s some great horror movies out there known as “found footage” films.  The idea is fairly simple: documentary filmmakers disappear under mysterious circumstances, and someone finds their footage.  The Blair Witch Project is one such film.  UCF alum created a fictional account of three film students who disappear after entering a forest to investigate a local Blair Witch legend.  All that’s left of the crew is their film footage.  Spooky.

The found footage genre owes its origins to Ruggero Deodato’s 1980 shocker Cannibal Holocaust.  By 1980’s standards, this horror film was so “real”, so controversial, that its creator was arrested soon after it’s premiere in Italy (and yes, the films were seized as well, what great free promotion!).  The plot was simple: Indiana Jones types travel to study remote cannibal tribes in the jungle, and they never return.  When they don’t return, investigators re-visit the jungle to investigate their disappearance, and as per the formula–they find the missing crew’s shocking footage.  Let’s face it, if someone is dumb enough to hang out with a whole jungle tribe of Jeffery Dahmers, going missing cannot be a good thing. Cannibal Holocaust contains animal mutilation, murder, rape, and absolutely grotesque images.  Eventually, the murder charges against the film’s creator were dropped after several of the “dead” actors appeared on TV to explain how they shot the film.  The film grossed $200,000,000, and that was in 1980.  Yes, you heard me.  The present value of $200 million from 1980 is, approximately, one zillion dollars.  There was only one film to beat out Cannibal Holocaust in 1980–Spielberg’s E.T. The Extraterrestrial.

Believe it or not, our Florida case for today involves found footage (of sorts).  In State v. Tumlinson, Mr. Tumlinson was charged with lewd or lascivious molestation of a child under twelve years of age “after law enforcement discovered and then questioned Tumlinson about his personal journal entries that described sexual contact with a child, J.T.  Law enforcement was contacted after Tumlinson’s former roommates found the troubling journal entries Tumlinson left behind at their home.”  (Fla. 2nd DCA 2016, Case NO. 2D15-1814).  (You didn’t think I could transition from Cannibal Holocaust to a Florida case, did you?  I’m not proud of the segue here, but we’ve got to talk about the law at some point) Continue Reading

Have you ever seen a fist fight live?  I hate fist fights, and violence in general (not liking violence is a bold statement, I know, I’m really going out on a limb here)commandments.   It is painful to watch such raw  violence.   And, do you know what happens to the guy who gets knocked down after taking one too many fists to the face?  The fight is over, right?  Wrong.  The guy on the ground will now be the proud recipient of several kicks to the head and body.  The cliche is true, you shouldn’t kick a man while he’s down.

Kicking someone while they’re down comes in many flavors, not all of them are physical.  Today we’re going to review a beat down taken by a probationer at the hands of her probation officer, a prosecutor, and last but not least–an “honorable” judge gets a few licks in that would make a UFC fighter wince.

Our story begins at a motel, the kind that rents by the week.  The folks who live in these places are just one dollar away from homelessness.  Suffice to say, you have to be down on your luck to live in such conditions, and you should be well armed to visit (at least the ones in Central Florida).  Ms. Charles was in just that sort of bind.  She was on probation, and living in a motel with her two young children.  Rent came due, and Ms. Charles didn’t have it, so she was evicted.  At this point, she was homeless with two kids and no money.  Many prison terms start in this fashion, and Ms. Charles was no exception to the rule.  Charles v. State, 2016 Fla.App. LEXIS 16217 (Fla. 4th DCA 2016). Continue Reading

Is there any value in holding onto a particular point of view?  fish

Children seem free to change their mind, but adults face a bit more peer pressure to remain consistent.  I think children have this issue right; we should feel a bit more freedom to change our position if need be.  Often, we don’t give our positions any sort of deep analysis, and once we’re confronted with a situation that requires some bit of thought, we end up changing our mind anyway.

Nothing wrong with changing your mind, unless you’re in politics.  A change of heart will open the flood gates of “flip-flop” negative campaign ads.   In reality, we’d probably be far better off with politicians that don’t have their mind made up about every single topic on Earth (but, they wouldn’t sound very smart, would they?  The Katie Couric’s of the world would have a field day with such intellectual thoughtfulness, editing the interview to look like a series of “gotcha” moments–it would get ugly).

Also, I can see “changing one’s position” as being a problem for professors and researchers.  These folks may be funded to do research consistent with their previously published works.  Imagine the disappointment of the folks funding the research when they discover a “change in position”.   If you’re going to change your mind, you better have tenure (possibly one of the benefits of tenure?).   Tom Petty once quipped that the music industry is never satisfied, because when he releases a new album the world says “Oh, this is the same old Tom Petty stuff he’s been churning out for decades”.  And, if Petty does something completely different, they’ll say “This artist has Jumped the Shark, abandoned the rock that made him successful.”  Basically, you can’t win.  Continue Reading

[This is Part 2 of my cut & paste Kindle highlights of the wonderful book Fooled by Randomness, by Nassim ponce inletTaleb]

Observational data is important to science, and Fooled By Randomness  by Nassim Taleb cautions us that we should not take scientific data so seriously.  We live in a random world, and data can only get us so far in life.

To understand the white swan problem, let’s start with the basics (actually, we’ll end with the basics too, but you know what I mean):

At some point in history, a biologist of the binocular sort (other biologists are of the microscope sort, right?) decided to prove once and for all that “all swans are white”.

He started proving “all swans are white” by observing lots of swans, and documenting his findings.  The first year, he observed 1,000 swans, and all of them were white.  Even with a thousand observations under his belt, he was not ready to publish his results in “Nature”, as more data was needed.  So, he observes another 3,000 swans the next year.  Same result–all the swans were white.   The question is, how much data must this biologist collect before proving that all swans are white?  And, as this biologist collects more and more data, how much more confident should we be in the theory?  Will another 10,000 observations of white swans make us pretty sure that all swans are white?  How about another 100,000 observations of white swans?    Continue Reading

pinball-e1477950529850-225x300

Every 23 seconds, an attorney is asked: “What are my chances of winning?”

Some attorneys play along with this game, especially if it’s a slow month, and throw out a number, like: “You have an 90% chance of winning”.  Most people call several attorneys, and the attorney who is most confident (throwing out numbers, say, in the 90% range)  may end up getting the case.  Confidence is a good for business, right?  But, are such numbers honest?

After 23 years of defending criminal cases (my web people love statements that brag about decades of practice, I will get a star beside my name for this), I am here to tell you that such numbers are pulled out of thin air.  I know, it’s shocking to hear that an attorney could utter words that stretch the truth.  Pull yourself together and read on, because other professions are just as guilty of spitting out misleading/unsubstantiated numbers as attorneys.

Financial advisers and scientists are at the top of the misleading numbers list.  Yes, this is why you don’t believe every infomercial that claims “studies have shown xyz 99% effective”.  But the problem here runs deeper than shady marketing practices, the problem involves what sort of conclusions scientists and financial analysts should be permitted to draw from their data.  To understand problems with data interpretation, we’re going to take a journey through my Kindle highlights from an excellent book by Nassim Taleb entitled Fooled By Randomness.   The book explains just how difficult it is to answer the very simple question “What are my chances”. Continue Reading