A few years ago, my friend Ed Leinster passed away.  He had worked with me here at the office for many years, and his motions were absolutely brilliant.  He was brilliant.   Before he passed, he told me of how he was going to legally dismantle the entire sex offender registration scheme.  After explaining it to me, I was convinced he could do it–but he passed on before ever getting the chance.  To understand this loss, imagine Einstein passing on before he formalized his theories on relativity.  Imagine Michael Jordan giving up basketball in high school.  I’m not exaggerating, Ed was just that good.

So, I knew Ed was a legal genius, but I also heard he was a truly gifted trial attorney.  And, that’s where my good friend Ted Marerro comes in.  When Ted was prosecuting felony cases, he went up against Ed.  Bottom line:  Ted racked up 70+ jury trials as a prosecutor, and no one came close to the skills of Ed Leinster.

Originally, this interview was going to be about Ed.  But, Ted’s insights into everything else are worth more than what we initially set out to accomplish.  For example, when defending a cold blooded killer, how do you contain your disdain as he delights in telling you of his murderous ways?  How well can opposing counsel beat your ass without ever having met the client before jury selection?   Ted is not religious (understatement), but he lists several examples of how Christians have gained his respect.  There’s stuff in here about Bob Wesley, Bill Garmany, Jeff Ashton, Joe DuRocher, Don West, Chaney Mason, Andrea Black, and numerous local judges.  A conversation with Ted is like that road trip where you’re really looking forward to the destination–but end up having more fun along the way.  I’m going to convince Ted to come back for Part 2 and 3.  Here’s Part 1.      Continue Reading

“Know the rules well, so you can break them effectively.” — Dalai Lama XIVlab2

Every country on Earth has criminal rules, and they all sound remarkably similar.    We Americans enjoy a “presumption of innocence”, and Article 37 of the Constitution of the Islamic Republic of Iran states that “Innocence is to be presumed”.   Two countries, both with a “presumption of innocence”.  Do you think they mean the same thing?   It is our court’s interpretation of these words that given them teeth and meaning. Trust me, you would rather be presumed innocent in Florida, versus Tehran.

From time to time, American courts chip away at the meaning of our criminal laws, and as such, we are creeping towards interpretations more in line with Tehran than Miami.  To demonstrate this slow erosion, let’s review the recent Florida Supreme Court case of Florida v. Queior, 2016 Fla. LEXIS 841 (Fla. 2016).

This article may start to sound a bit like an episode of Inside Baseball, because the erosion of our rights can be subtle, and it’s buried deep within how our courts define (and re-define) legal concepts.  The bad decision in Queior arose out of a violation of a probationer because he tested positive for drugs.  Let’s begin with a bit of background on how a violation of probation works.  It all begins with the old saying, “Come to Florida on vacation, leave on probation.”   Continue Reading

I can’t tell you how many times I’ve been to the jail in my 23 years of defending criminal cases.  Let’s just say plenty.  But, I don’t know what it’s like to spend time behind bars, as I’m only andoggy in jail “official visitor”.  Lucky for you, a dear friend of mine had the misfortune of being arrested.  He was my neighbor, he was a doctor, and he is a good friend of mine to this day.  Unfortunately, he was recently sentenced to ten years prison.

Now, my buddy has a few things to say about his stay at the Orange County Jail, before he was shipped off to prison.  I’m going to share these things with you, in no particular order, so that you or a loved one may have some idea as to what to expect behind bars.  My friend spent six months in the Orange County Jail, and much of his wisdom can be reduced to one cliched word, “respect”.  Now, this is not the slang term that passes for a greeting, but means virtually nothing.  No, respect is Jail Etiquette 101.

The best way to survive a county jail term is to respect your fellow inmates, and respect the corrections officers.  However, my friend is not suggesting that you wimp out at every confrontation.  There must be a balance between standing up for one’s self when facing a confrontation with another inmate, and respecting all those around you.  How do you walk this fine line?  I have no idea, I’m just telling you what he told me.  My doctor friend turned inmate is slightly over 60 years of age, so he benefited from the age discrimination rules the county jail employs.  The Orange County Jail’s violation code renders punishment to the younger inmate automatically, when the “senior” inmate is over the age of 59.  Punishment for fighting and shenanigans varies, but both fighters are likely to end up in the “Box” or “Shoe” for 30 days.  While in the box, there’s no recreation time, and no commissary.

For those folks in the general population at the county jail, an inmate will carry his blanket, sheet (and pillow if available) and a basic care kit.  The basic care kit is given to you at the Booking and Release Center, or the general population cell, and it consists of white boxers, a toothbrush, toothpaste, soap, socks, and a comb.  Every inmate gets a one piece uniform known as the “blues”, and these are changed twice a week.  Linens like your sheet, pillow case are changed once a week, with the blanket changed every six months.  Continue Reading

I”m warning you in advance that this is, sort of, a book review.  Technically, a book review would require far more thought than what I’m about to say, so let’s call this a strong book recommendation.  What has possessed me to write my first book recommendation ever?  I’ve written over 340 articles for this blog and at about article #10, I started running out of ideas.  This nagging feeling of having nothing to write about continues to this day so, I’m going to recommend a book by Tim Kreider entitled “We Learn Nothing”.

I read this book months ago, so the details here are bit sketchy, sort of like I remember Obi One getting killed in the first Star Wars (makes me cry every time), but I don’t remember much else (well, I also remember Vader chocking some Death Star board member using the force, but that’s about it).   Anyway, I couldn’t put this book down.  I’m the type of person that reads, like, ten books at a time, and I blame Kindle for enabling this attention disorder.  Kreider’s book has so much wit and wisdom, it made me feel inadequate, and I soon realized I will never be able to write a book this good.  “We Learn Nothing” is a collection of true stories, most of which begin with drinking shenanigans, but end up revealing some eternal truth.  The heart of this book is great storytelling, and great storytelling can get you anywhere in life; you can write great songs, get elected to office, win over juries at the local courthouse, get funding for your tech-startup.  Anything.

Let me tell you how I came upon this book.    I was listening to Tim Farriss’  podcast, when he departed from his usual two hour life hacking interview, and instead gave a 15 minute nugget of wisdom from Tim Kreider entitled “Lazy, a Manifesto”.  You can find the audio here, and it is a must listen.  Seriously.

Without further ado, here’s some thoughts from Mr. Kreider’s “We Learn Nothing”traffic, in no particular order (compliments of my Kindle’s ability to save notes): Continue Reading

At times, criminal defense work requires we attorneys to keep our mouths shut.  This is against our nature–we like to talk.  But sometimes, saying too much may get your client in trouble.  As a practical matter, should a defense attorney tell the prosecutor “Hey, you can’t prove that”  when such a statement will permit the prosecutor to cure the defect rather quickly?     In the case below, the defense attorney decided to keep quiet about a defect in the prosecutor’s case, and eventually, that silence paid off.

Every so often, I’m retained to defend a misdemeanor battery case, only to discover later that the IMG_1061charge has been upgraded to a felony.  This doesn’t happen that often, because law enforcement typically has quite a bit of enthusiasm up front in their attempts to charge citizens with the highest offense humanly possible.  Should a felony slip thru the cracks, prosecutors also have the ability to upgrade a misdemeanor into a felony, and there are plenty of reasons to do this.  I’m here to tell you that upgraded cases are difficult to prove.  To explore a real life upgrade scenario, we’re going to delve into the case of Dolan v. State, 2016 Fla. App. LEXIS 2183 (Fla. 2d DCA 2016).

First, let’s discuss what a felony battery is, versus a misdemeanor battery.  In this case, there is no difference, but for the fact that the state accused Dolan of having a prior battery conviction.  One prior battery conviction, regardless of whether or not the person was adjudicated guilty or received a withhold of adjudication, and the second battery accusation will be upgraded to a felony (under Section 784.03(2) of the Florida Statutes, there are other ways to get a felony battery, fyi).  Ok, so how hard can it be for a prosecutor to prove up a prior conviction?

Dolan’s jury trial was broken into two separate trials, all without the jury’s knowledge.  The first part of the trial was dedicated to the prosecutor’s proof of the battery itself.  Should the jury return a guilty verdict for battery, the judge would then conduct a second mini-trial for the jury to determine whether or not Dolan had a prior battery conviction.  Obviously, this is done so as to not taint the jury’s decision on the facts of the battery case itself.  But, when it came time for the state to prove the prior case, a few weird (but common) things happened. Continue Reading

After several decades of defending criminal cases, I’ve seen a few patterns emerge.  Our brains are rigged to see patterns, even when they don’t exist, but let me share with you a pattern of behaviordutch_weed that keeps me in business.  The vast majority of drug arrests arise out of basic traffic stops.  Let’s face it, people like having drugs in their car.  Shocking, I know.  Take some time to catch your breath, and when you’re ready, read on.  Many criminal defense attorneys–who happen to smoke weed–have their weed delivered to their home rather than having it in their vehicle, for fear of getting caught in this most pedestrian way.  So, while it may come as some surprise that people who are smart enough to obtain a Juris Doctorate are dumb enough to regularly break the law,  at least they are smart enough to avoid the number one way of getting caught.

Millions of folks employed by Crime Inc. would probably be doing something else for a living if citizens stopped committing crimes in their vehicles (drugs and DUI’s account for most of the crimes out there).  There’s a simple solution to this, as there is for much of the world’s problems.  Stop transporting drugs in cars.  Stop eating so much.  Stop the violence, hate, etc.  That being said, if Coke couldn’t convince the world to sing in perfect harmony, I’m probably not going to be looking for other work any time soon.  People are going to keep transporting drugs in their cars, and I’m going to keep helping them out of it. Continue Reading

female walkerI used to think that paying less for something was a good deal.  Lower price = better deal, right?  Now I’m a bit older, and my position has evolved (‘evolved’ is a condescending term, right?).  It’s not always a good idea to go with the lowest price.  Often, paying more for something means you’re getting a better value.  So, finding the lowest priced burger, or steak, or car, or attorney—is not a good idea.  Quality matters, value matters.  And on that note, this article is worth what you paid for it.

Anyway, one of my favorite restaurants is Bern’s Steak House.  Whenever I’m in Tampa, I try to hit Bern’s, and I consider it an excellent value.  When I mentioned this to a friend who likes steak, he quipped that he can’t afford expensive steak houses.  I don’t consider Bern’s expensive.  A mere $34 buys a small filet, plus salad, plus loaded baked potato, plus French onion soup, plus two side items.  That’s a lot of food for under $35.  My friend says Outback does the same thing for $17, half the price.  I say Bern’s at twice the price is a bargain, he says I’m paying too much.

Pricing tends to be relative, yet We The People have a constitutional protection against our government charging us too much bail, or too much of a fine.  Excessive fines are banned by the Eighth Amendment to the United States Constitution.  How can we tell if a fine is too expensive for the crime?  That question was recently addressed in State v. Cotton, 2016 Fla. App. LEXIS 2859 (Fla. 2nd DCA February 26, 2016).

Cotton was convicted of soliciting a prostitute, something perfectly legal in Nevada and most of the planet–but illegal in Florida.  Solicitation is a second degree misdemeanor, meaning that, a conviction can put you in jail for up to 60 days, and possibly a maximum fine of $500.  In case you’re wondering how serious this crime really is, Florida has no lower criminal act than a second degree misdemeanor.  That being said, the solicitation statute changed a few years ago by adding a mandatory fine of $5,000.  Yes, you heard me.  Let’s say you “holla” out of your vehicle for a street walker to enter your car for sex–that will get you a $5,000 fine.  Not $2,850.  Not $4,432.  You must get the full $5,000 fine.  This seems a bit excessive, doesn’t it?  If you molest a child, there’s no $5,000 mandatory fine.  If you beat your wife in front of the child you just molested, there’s no mandatory $5,000 fine.  I could go on, but you get the idea. Continue Reading

Anyone out there have a friend that transforms everything you say into naughty innuendo?  I enjoy such banter when that friend is female (I’m just saying), but not so much when folks attempt to stretch the joke into a half hour sitcom (Broad City pulls it off, but 2 Broke Girls doesn’t).  A few professions take twisting to the extreme.  Cops are experts at taking innocent words or conduct and converting it into something criminal–and this is one of the main reasons I recommend folks never talk to the police without an attorney present.  But, even if you don’t say anything, the police can still take your innocent household items and transform them into criminal objects (check out my article “How SpaghettiO’s Can Get You Arrested“).IMG_0476

To understand the concept behind this transformation, let’s take a look at my mom’s kitchen table.  Before telling you what’s on the table, let me tell you a few things about my momma.   Of course, she’s the best.  Second, she’s an artist.  Because she’s crafty, she has little ziplock baggies everywhere for beads and jewelry.  To most officers, these tiny ziplocks have only one legitimate purpose–cocaine storage.  My Mom also takes several medications (she’s in her 70’s, and as you know, the pharmaceutical industry encourages one prescription per decade on earth, so she’s met her quota and then some).  The problem is, she doesn’t keep her pills in their prescription bottle.  She has a little MTWTFSS plastic pill organizer, and God forbid a prescription med isn’t kept in it’s bottle.  Nothing gets a rookie cop more revved up than a controlled substance separated from its prescription bottle.  Pills outside of their prescription bottle home must be illegal, after all, who would dare remove their pills from the bottle?

Back to the kitchen table.  My Mom’s kitchen table has a digital scale on it.  No, she’s not a drug dealer.  But, if this table full of tiny ziplocks, prescription drugs, and a digital scale was somehow in the hood with a few teenage black kids sitting around it–we’d have plenty of kids going to jail.  The point is, a digital scale or tiny ziplock baggies are perfectly legal until drugs enter into the picture.  Once drugs are nearby, such items could become what is known as “drug paraphernalia”, because those items are deemed help a citizen “inject, ingest, inhale, or otherwise introduce into the human body a controlled substance”.  Florida Statute, Section 893.147(1)(b).  The recent case of Chandler v. State takes a closer look at what constitutes drug paraphernalia.  41 F.L.W. 861 (Fla. 5th DCA 2/26/2016). Continue Reading

Does the government understand it’s own laws?  If you ask the elected officials who are drafting the laws, they supreme courtmay tell you to wait until the bill has passed to find out what’s in it.  Basically, not even the people drafting our laws understand them, and things get no better once a law has passed.   Ask three government officials a question, and you’re likely to get three different answers.  Even if you arrive at a reasonably correct answer, that law may conflict with several other laws.  For example, when We The People decided to legalize marijuana in several states, our federal government did not agree with that decision.  After all, marijuana is still a Schedule 1 narcotic under federal law. So, do you think the federal government might respect the state electorate’s decision?  Of course not.  Like some two year old throwing a tantrum, the feds harass legal marijuana retailers by threatening money laundering charges against any bank that accepts currency derived from the sale of an illegal narcotic.  If you want to legally buy weed, you’re going to have to pay in cash.  Coincidentally, this is the way weed transactions have gone down while the substance was illegal, so I guess some things never change.

The federal government is not happy with certain aspects of Florida’s criminal justice system.  Namely, they don’t like the fact that Florida permits citizens to admit to a crime–yet not be found guilty of it.  We call this a “withhold of adjudication”, and here’s how it works.  Say you have stolen a car, and you confess to such.  In court, the guilty plea sounds something like this: “Yes Your Honor, I stole that car, I plead guilty to the crime of Grand Theft Auto”.   In Florida, the judge may respond “I am not going to find you guilty of stealing the car, this court will withhold adjudication, you will not be a convicted felon”.  Unfortunately, the federal government has never approved of such technicalities, and the feds will treat this plea as a conviction.  To see how this issue was recently resolved, let’s take a look at the case of  Clarke v. United States of America, 2016 Fla. LEXIS 277 (Fla. 2016). Continue Reading

There are several common themes we defense attorneys hear from people unfamiliar with the criminal justice system.  First, everyone thinks that their case should be dismissed because “the cops didn’t read me my rights”.  I hate to be the bearer of bad news, but cops are not required to read everyone Miranda warnings.   The second favorite reason for dismissal is the statute of limitations.  If the suspect isn’t caught “in the act”, and arrested months later, most people assume their case must be thrown out under the statute of limitations.  And, that’s our topic for today.  For those of you not familiar with the concept,  Florida law imposes a statutory deadline on prosecutors, forcing them to begin their prosecutions within a certain amount of time.  [The statute of limitations is found in Florida Statute Section 775.15]clock

Here’s how the time frames work.  Prosecutors must begin “prosecuting” all second and third degree felony cases within three years (we’ll talk about what it means to start a lawsuit later).  Misdemeanors must begin in two years for first degree misdemeanors, and one year for second degree misdemeanors.  And the next logical question is, when does the statute of limitations clock start ticking?  The period begins when the offense is committed.  With these basics out of the way, let’s dig a little deeper.

The statute of limitations places the burden on the state to begin their lawsuit “without unreasonable delay”.  This is where we find 99.99423% of the problems. What does it mean to start a lawsuit “without unreasonable delay?”  First, the government must locate the person they seek to bring a case against, and arrest them.  Pretty basic, right?   Both criminal and civil cases can be dismissed if the party bringing the lawsuit makes no attempt to serve the person they’re suing.  The statute of limitations does not specify how the government should begin their lawsuit without delay, but often times, we defense attorneys can show that the government has made no attempt to locate the person they wish to prosecute.   So, what happens when the government arrests the suspect after the statute of limitations has expired?

We are a lawsuit happy society.  This is especially true of our government.  When the government sues you, more often than not, it is a criminal lawsuit.  State of Florida vs. YOU.  Initiating any sort of lawsuit carries with it the burden of informing the person you’re suing that they are, in fact, being sued.  In criminal cases, the burden is on the state to inform the defendant of the lawsuit “without unreasonable delay”.  If a lawsuit begins when the other party is served with notice or “papers”, a criminal lawsuit’s notice is typically an “arrest”.  How does a prosecutor begin a criminal case in which the suspect hasn’t been arrested yet?  They get a judge to sign an arrest warrant, and the prosecutor gives this arrest warrant to the sheriff, who will then locate the defendant and make the arrest.  If the sheriff’s office makes no effort to locate a defendant, such laziness may constitute an “unreasonable delay” (and the case will be dismissed as violating the statute of limitations).  But, there is a recent case which seems to suggest that the government need not make any efforts to initiate their lawsuit–so long as the defendant is shown to have been out of state.  Sure, We The People must follow the rules to locate the person we are suing–and if we fail to serve them, our lawsuit may be dismissed.  Not so with the government.  They play by their own set of rules.   Continue Reading