cocaine linesHow many products these days claim to be “scientifically proven”?  Proven to kill 99% of all germs.  Eliminating 95% of all odors.  Clinically proven to smooth wrinkles, or shrink your belly.  How much “faith” can we put into these scientific claims?   It depends on who is making the claim, right?  Is it the doctor that conducted the study?  Or, is it a janitor who got a good night sleep at a Holiday Inn Express?

Typically, our court system has done a decent job of keeping out scientific evidence that cannot be substantiated.  The main vehicle for testing scientific assertions is cross examination.  When a prosecutor presents a witness who makes scientific claims, we defense attorneys are able to cross examine this witness to test accuracy.  At times, legislatures have tried to help prosecutors by passing laws that permit scientific assertions without the need to back up the claim with live scientific testimony.  The United State Supreme Court has struck down these government attempts to insulate scientific conclusions from cross examination from folks like me.  For example, Massachusetts passed a law permitting prosecutors to introduce lab reports as proof of a drug’s identity.  (See Melendez-Diaz v. Massachusetts, 557 U.S. 1256 (2009), my article on this issue can be found here).  The Supreme Court struck down this law, finding such a maneuver unconstitutional.  In essence, the prosecutor is not permitted to introduce a piece of paper from a laboratory as proof of a substance’s identity (cocaine, or heroin, for example).  They must present a scientist who knows something about the science underlying the lab report.  Then, the lab report is admissible.

When prosecutors were unable to identify “cocaine” by simply presenting a piece of paper from a laboratory, the prosecutors decided they would call laboratory employees to the stand to testify as to what the lab does, etc etc.  They would bring in anyone to testify.  The receptionist from the lab, for example—rather than an actual scientist—so as to prevent defense attorneys from cross examining someone who understands the science.  Without meaningful cross examination, why not believe an official looking document like a lab report?  In other words, some prosecutors don’t want their “science” to be challenged, so they present witnesses who cannot not answer scientific questions on cross examination.  Once again, the Supreme Court stepped in and, in the case of Bullcoming v. New Mexico, the Court held that such a tactic was unconstitutional (131 S. Ct. 2705 (2011), you can find my article on this issue here).  In order to admit a scientific document into evidence, the prosecutor must present the scientist responsible for creating the document (or, at least somebody who knows something about it).  With this in mind, let’s take a look at what prosecutors in Florida are trying to get away with in dirty urine violation of probation cases. Continue Reading

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“The assumption of an absolute determinism is the essential foundation of every scientific inquiry.”
~ Max Planck
“We must believe in free will, we have no choice.”
~ Isaac Bashevis Singer

Everyone wants to hold criminals responsible for their actions.  This “responsibility” has its foundation in the belief that we all have the free will to choose right from wrong.  What if free will is just an illusion, how would that impact the criminal justice system?   Free will creates the moral structure that provides the foundation for our criminal justice system.  Without it, most punishments in place today must be eliminated completely.  Its no secret that I’m a firm believer in free will, but I’m also a firm believer in arguing against it when it helps my clients.  That’s what we lawyers do, call me hypocritical if you like, I can take it.  Now, let’s delve into the issues and practical effects of eliminating free will.

We only punish those who are morally responsible for their action.  If a driver accidentally runs over a pedestrian–there will be no criminal charges in the death of the pedestrian.  This is what we call an “accident”.  However, if a husband runs over his wife after an argument, that same pedestrian death now constitutes murder.  It was the driver’s “intent” that made one pedestrian death a crime, and the other not. But, what if we examine the husband’s brain, and an MRI discovers a frontal lobe defect that could explain his deviant behavior?  Is he still guilty of murder?  If such a defect “caused” the husband’s actions, our criminal justice system has laws in place that would label the husband “Not Guilty By Reason of Insanity”.  That being said, what happens if “causation” runs deeper than a mere frontal lobe problem?

Neuroscientists get excited when their brain scans detect an abnormality, but today we’re going to look beyond this modern day phrenology.  Some scientists now claim that human behavior may not, in fact, have its origins in the brain.  Yes, there’s a battle brewing between physics and biologists.  On the one side, we have the white coats feeling lumps on our skulls, or seeing brain electrical activity on a computer screen; all of which is fairly impressive.  But the physicists are telling us that causation predates the brain.  Basically, everything (including brain activity) is the result of the collision of molecules that behave according to the laws of physics (we call this determinism).  If every event is determined by a previous event, there is no room for squishy concepts of “free will” and “morality”.   Free will, then, amounts to one of many illusions inflicted upon us by our tricky brains.  As a criminal defense attorney, I am anxious to see whether or not folks who believe we have no free will are willing to dismiss all charges against my clients who may have (God forbid) raped their wife or killed their dog (sometimes pets evoke more emotion than spouses, I’m just saying).

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There are shopliftingplenty of legends surrounding wealthy people.  For example, people assume you’re happy if you have lots of money, and several studies support this.  Also, people assume you’re smart if you have lots of money.  There are plenty of studies to show this is not the case.  If intelligence did lead to wealth, I’m sure India would have less poverty (India contains Earth’s lion share of geniuses, FYI), and Christopher Langan would have Trump style buildings with his name on them (Christopher is the smartest human being on Earth–if you subscribe to IQ testing–but his employment isn’t CEO of the latest craze in Silicon Valley, Christopher keeps it low key with such titles as bouncer and laborer.  “Not that there’s anything wrong with that”, as Seinfeld taught me, but these aren’t the jobs you’d expect of someone with an IQ higher than Hawking or Einstein or Ben Stein).

So, I really like Apple products, and I heard a legend about Steve Jobs that seems plausible.  He didn’t like carrying around music on cassette tapes, or CD’s.  Jobs wanted a more portable music device that could hold more songs than a cassette or CD, but the engineers at Apple kept putting him off because they didn’t have the storage technology to make it happen.  Yes, the engineers are always at odds with the artists.  Later in the legend, Toshiba came out with a tiny hard drive with a decent storage capacity.  With the birth of that tiny hard drive, Steve Jobs’ dream of an iPod became a reality.  The iPod music revolution began with hard drive technology. Then the iPhone, and so forth, and so on.

Hard drive technology is now affecting shoplifting cases.   Here’s how.  A shoplifter gets caught stealing (we call this petit theft).  Back in the day, security cameras were considered new technology, but they were only being viewed live, or the footage was being recorded on a VCR that taped over itself every couple of hours.  The cameras enabled loss prevention officers to view shoppers as possible suspects.  For example, nothing screams “I’m stealing” like someone putting clothes into a bag without ever looking at the size or price.  Once loss prevention spots such odd behavior, they can close in on the suspect.  Now, with the advent of hard drive technology, some stores are able to digitally record many months of video, and when they catch someone stealing, loss prevention simply burns two copies of the footage–one for the police, and one for the local news channel (does the public ever tire of seeing someone caught in the act?).  After that, they start reviewing past footage.

The impact of technology isn’t felt on the initial petit theft arrest.  Hard drive technology is impacting shoplifters because it’s enabling loss prevention to review old video from months past.  When they rewind the tape and spot their current shoplifter in the store two months ago, guess what?  As shocking as this may sound to your virgin ears–for some of these shoplifters–this is not their first rodeo.  After the tape is rewound, we’re seeing a second theft charge.  And a third theft charge.   This wasn’t possible five years ago, as storing thousands of hours of camera footage on hard drives simply cost too much money.  The evidence was erased to make room for more recent recordings.   Today’s massive hard drives can store months and months of store shenanigans, and this added capacity is translating into additional charges for repeat offenders.

There are time limits on this madness.  Florida’s statute of limitations gives retailers only a couple of years to get their act together.  My experience has been that the stores are able to uncover video evidence of prior thefts within six months of an initial arrest.   Such delays can be bad for some folks, as I’ve seen defendants already complete their initial sentence, only to get rearrested for a theft that occurred before the one they just finished (follow that?).  Sorting through months of hard drive video still takes quite a bit of labor, but facial recognition software is speeding up these searches.  Recently, Walmart discontinued their use of facial recognition software, citing the fact that they were not seeing the return on investment they had hoped for (in other words, this technology is expensive).  Walmart seems to be the only retailer who has ever admitted to using facial recognition, but I suspect others are out there doing it as well.  The use of this software is legal in 48 states, with Illinois and Texas being the only two to ban such technology.

Bottom line here is that we defense attorneys are seeing more and more repeat offenses once loss prevention examines their old footage.  There are several legal challenges to such tactics, which we don’t have time for today (it would bore you, and I’ve got football to watch).  Should you have any questions, shoot me an email at jguidrylaw@msn.com.

When I was a kid, my mom had a list of neighborhood kids she didn’t want me hanging around.  For the most part, her intuitions were correct, and my childcontracthood is now void of any shenanigans involving “the wrong crowd”.  Sad really, but the good news is, I could find a way to be bad within the good crowd (a story for another day).  Anyway, I’ve represented zillions of clients whose arrest involved something “wrong”—the wrong crowd, the wrong place at the wrong time, and so forth and so on.  Often, if someone is going to blame a criminal charge on the “wrong” anything, it means we’ve probably got ourselves a repeat customer.  I don’t want to Dr. Phil this point too much, but folks who blame themselves rarely come back to see me on a second case.  Those who blame their wife, husband, or pet hamster–I’ve got a client for life.  Job security.

Our case for today begins the same as any “American Greed” episode—a very wealthy, elderly, woman is befriended by a married couple.  The married couple “assists” the old lady with the legal affairs of her estate while she was of limited mentalcapacity.  Somehow, the married couple ends up as beneficiaries in the will.  This is the case of Javellana v. State, 168 So. 3d 283 (Fla. 4th DCA 2015).  Mr. & Mrs. Javellana were convicted of the financial exploitation of an elderly person by manipulating a will to become residual beneficiaries of a vast financial estate.  Mr. Javellana went to trial and lost, but appealed the case on the grounds that “under a principals theory” the judge should have dismissed the charges as “there was no evidence he participated in the exploitation”.  Id. at 284.   Before we get into the evidence of exploitation, let’s briefly explore what it means to be convicted as a “principal” to a crime.

There are plenty of shady words in the world of criminal defense, and “principal” ranks right up there with “loitering and prowling”, the “odor of cannabis”, and an “unrecorded confession”.   Basically, being charged as a “principal” means the state doesn’t have much evidence against you.  It means that there’s a good chance the charges are bogus.  When you see the word “principal”, your BS detector should be on high alert (you get the point).  Continue Reading

Oh the times, they are a changin’.cannabis plant

Every time I walk into the Orange County Courthouse, I see some guy asking me to sign a petition to “put medical marijuana on Florida’s Ballot”.  Somehow, whenever I’m dressed in my work uniform (suit, tie, and briefcase, don’t forget the briefcase), the petition signing hawks leave me alone.  It may be that too many “suits” turn out to be jerks, so they just don’t bother.  I understand that, and agree.  But, if I had the time, I would chat up the “medical marijuana sign holder” and tell him that medical marijuana is perfectly legal in the State of Florida.  It has been for almost a year now.

Most people don’t realize this.  Medical marijuana is legal in Florida.  I’ll keep saying it until everyone takes down the signs asking that we make it legal.  It’s legal.  Governor Rick Scott signed the law back in 2014, and it took effect on January 1, 2015.  The law is found in Florida Statute 381.986, entitled “Compassionate use of low-THC cannabis”.

Now, the question for today may sound like another episode of Inside Baseball, and for that, I’m slightly sorry.  It is the effect this law has on probable cause that should concern we citizens.  Law enforcement may not search your person, home, or vehicle without a warrant so long as they have “probable cause”.  Nine times out of ten, probable cause involves some officer telling his buddy “You smell weed?  Yea, I smell weed too, let’s search this place”.  Five times out of ten, this odor is detected after a citizen denies the officer permission to search.   Up until January 1, 2015, probable cause based upon the smell of weed made a bit of sense, as marijuana was illegal in any form up until that point.   Continue Reading

Violations of probation (VOP’s) come in all shapes and sizes.  Some are more difficult to prove than others.  A dirty urine violation, for example, is deceptively complex.  Even a curfew violation may not be as simple as you might think.  But today we’re going to review what happens when a citizen is on probation and violates by getting arrested on a new charge.  Nothing gets a prosecutor more giddy than a VOP case based upon a new arrest.  But, don’t be distracted by a prosecutor’s confidence, as their zeal often blinds them to the weaknesses in their case.  I’m all for a little confidence, it makes my job easier.no masks

The recent case of Vidale v. State sheds some light on just how difficult it can be to prove up a new law violation at a VOP hearing.  166 So. 3d 935 (Fla. 4th DCA 2015).  Vidale was serving a two year probationary term for dealing in stolen property and throwing a deadly missile.  Like all other probationers, he had two prime directives while on probation.  First, don’t get arrested.  Second, don’t hang out with criminals.  Easy enough, right?  These conditions pretty much parrot every mom’s advice on Earth.  Unfortunately, Vidale found himself in jail on a violation of probation due to a new arrest for burglary of a dwelling and possession of cannabis.  Here’s the testimony at the violation of probation hearing. Continue Reading

perscription pill bottleI have a few statistical facts for you, and I’m using the term “statistical” and “facts” rather loosely.

Four out of every five citizens who are arrested for drug trafficking are victims of entrapment.  Technically, five out of every five citizens arrested for drug trafficking believe they are victims of entrapment, but we’re not concerned with beliefs here, only the facts.  Entrapment can be difficult to prove, because most judges and prosecutors won’t admit their beloved agents could ever permit an informant to manufacture a crime, rather than detect a crime.  Well, I hate to break it to you, but it happens all the time.   To understand why entrapment is prevalent in Florida, it’s important to understand how the game is played.  Most entrapment cases involve confidential informants attempting to wiggle their way out of a serious charge, so that’s our focus.

The game begins when someone is arrested  on a trafficking charge involving mandatory prison time (often a mandatory minimum of 25 years in prison—about 12 years more than the average child rapist receives).   The defendant who decides to become a snitch is usually a first offender, desperate not to spend the best years of his life behind bars.  Let’s face it, this kind of time hanging over your head would cause most folks to do things they would otherwise be incapable of doing.  So, with no law enforcement training, only a desire to “do anything to avoid going to prison”, law enforcement unleashes their untrained informants into Florida’s streets.   These defendants/informants are now charged with a task that is typically reserved for “highly” trained undercover officers—set up drug deals.  Not just any drug deal.  Big drug deals.  Yes, “big” can mean “dangerous”, a story for another day.  The technical term for this untrained undercover work is “substantial assistance”.

An entire book could be written about substantial assistance deals, but who has the time for that?  Here’s the three sentence version.  A substantial assistance deal is a plea agreement with extra clauses providing the defendant with guaranteed “credit” against his minimum mandatory sentence for every arrest he manufactures.  For example, if a defendant is facing a 25 year minimum mandatory for trafficking in oxycodone, the defendant may receive 5 years off of that sentence for every 25 year minimum mandatory arrest he manufactures.  If the set up isn’t a big enough deal, the credit may only be for 3 years off, or 2 years off, and so forth, and so on.  Yes, there are problems determining how much credit is due.  For example, if a defendant’s efforts lead to the arrest of eight people—shouldn’t the defendant be given credit for all eight arrests?   Continue Reading

I’m sure you remember the financial crisis in 2008 involving Wall Street and fraudulent mortgage backed securities.  I’m sure you’re sick of hearing about it too, but hang inloan there, this all ties in, I promise.   We’re going to compare the treatment a Florida citizen receives for her mortgage fraud, versus the punishment received on Wall Street for a similar mortgage fraud.  Can you guess where this is going?  Let’s start with Wall Street.

Recently, a federal judge summarized the 2008 crisis as follows, “Did defendants accurately describe the home mortgages in the offering documents for the securities they sold that were backed by those mortgages?  Following trial, the answer to that question is clear.  The offering documents did not correctly describe the mortgage loans.  The magnitude of falsity, conservatively measured, is enormous.”  [Judge Denise L. Cote, Federal Housing Finance Agency v. Nomura Holding America, 2015 U.S. Dist. LEXIS 10466 ( S.D.N.Y. 2015, Case No. 11cv6201]

Ok, so Wall Street didn’t “accurately describe”  some home mortgages, and we all know how that story ends.  What about the little guy, or in our case, a gal named Jacqueline Izquierdo.  She was convicted of mortgage fraud and grand theft.  The prosecutors claimed that she provided false information on loan documents used by the mortgage company to determine her eligibility for the mortgage, and convicted of grand theft for taking $216,000 in loan money that she, supposedly, was not entitled to.  Izquierdo v. State (Fla. 3rd DCA October 28, 2015, Case No. 3D13-2751).

Just for a little perspective here, remember the billions of dollars in mortgage fraud from 2008?  No one was arrested.  No one went to prison.  Ms. Izquierdo received a sentence of 14 months prison, followed by two years of home confinement (community control, as we call it here in Florida), and then 8 years of supervised probation.  Here’s what she did. Continue Reading

Science never seems to prove as much as prosecutors claim.  Case in point: fingerprints.  Yes, prosecutors make some pretty ridiculous plea offers when they have incriminating fingerprints.  They get that gleam in their eye, like “Guidry, you can’t get your client out of this one–I have fingerprints!!”   Oh boy, I’ve never seen such a solid case.  Wow, my client must really be guilty this time, right?  Wrong.

What does it mean to say “the defendant’s fingerprints match those found at the crime scene?” Let me tell you what it’s not.  When law enforcement fingerprintstestifies that a crime scene fingerprint “matches” the defendant’s fingerprint, they’re not saying that these two fingerprints are identical.  Sure, it sounds that way, but even with two prints “matching”, the crime scene fingerprint could belong to someone else.  Why, you ask?  Because fingerprint analysis is not an exact science, it’s just a probability claim.   Sure, all of science can be reduced to probabilities, but that’s a philosophical discussion for another day.   Continue Reading

Our government is supposed to be transparent.  We have the federal Freedom of Information Act, and in Florida, we have Sunshine Laws.  These laws provide citizens the ability to force ouroxy government to hand over information that they may not, otherwise, publish.  If it wasn’t for FOIA requests, our world would have far fewer UFO and conspiracy books.  Jesse Ventura wrote an entire book analyzing FOIA documents, and given our government’s shady ways, we should expect even more tantalizing documents in the years to come.

Unfortunately, freedom of information is nonexistent in the criminal courtroom.  Florida juries are not permitted to know the most basic truth of a case—the potential sentence.  Kind of crazy, right?  Citizens are not allowed to know the sentence that will result from their verdict out of fear that such information would sway the jury’s conscience toward not guilty (God forbid a jury with a conscience!).  Such fears say a lot about how harsh our criminal justice system has become.

Knowledge is power.  A fully informed citizenry, typically, provides insurance against the tyranny of outrageous government legislation.  Juries should know that a $300 purchase of oxycodone pills can lead to a 25 year minimum mandatory sentence.  Yes, as little as $300.  No, juries don’t know this, even when they’re the ones about to impose the 25 year sentence.  Sadly, a minimum mandatory prison sentence for a $300 drug deal is common place in Florida.  Most citizens mistakenly believe that 25 years of mandatory prison are reserved for the likes of a Pablo Escobar (any Narcos fans out there?  Great Netflix series, I recommend it).  Even child molesters fair better, on average, than folks who possess minimum mandatory drug amounts.  Child rapists average around 17 years in prison.  Naturally, prosecutors want to keep jurors in the dark about mandatory sentences on drug offenses, as it is far easier to obtain guilty verdicts when the jury doesn’t realize just how devastating these minimum prison terms turn out to be for defendants and their family. Continue Reading