Here are some facts, straight from CNN:theft-300x225

“At the World Trade Center (WTC) site in Lower Manhattan, 2,753 people were killed when hijacked American Airlines Flight 11 and United Airlines Flight 175 were intentionally crashed into the north and south towers or as a result of the crashed.  Of those who perished during the initial attacks and the subsequent collapses of the towers, 343 were New York City firefighters, 23 were New York City police officers and 37 were officers at the Port Authority.  The victims ranged in age from two to 85 years.  Approximately 75-80% of the victims were men.”  (http://www.cnn.com/2013/07/27/us/september-11-anniversary-fast-facts/index.html, accessed August 13, 2017).

So, now you know some facts.   Do the words above give you any sense of the meaning of 9/11?   You can memorize the “facts” about 9/11, but completely miss the meaning of 9/11.

Having accurate facts won’t guarantee any sort of understanding.  Often, words have more power as they move away from factual descriptions.  For example, the words found in your favorite song may remind you more of an event than any factual description.  I can’t tell you how many times I’ve heard a song from the 80’s, and the song instantly transports me back, in a way that words on a page just can’t. Often, words in a song can convey more meaning than the words alone.

Songs work, in part, because we believe a phrase more if it rhymes. Kind of silly, right?  It is said that “a man armed with a rhyming dictionary is a dangerous man.” (Bruce Springsteen).  Rhyme works in criminal defense trials as well.  Who can forget this classic: “If it doesn’t fit, you must acquit.”  Or, how about this one: “Sticks & stones may break my bones, but words will never hurt me.”

Words may not hurt you–but words can get you arrested, among other things.   (I’m going somewhere with this, so please tolerate the cliches for a another three sentences)  Here are some dangerous words: telling a TSA agent that you’ve got a bomb, or asking a 16 year old girl to have sex (unless, of course, you’re 16 years old, but even then, its a tad young, don’t ya think?).  Our focus today will be the all too common threat to kill.

Now, if you do threaten to kill someone (hire me…), any threat to do harm is called an assault (a battery charge is physical, assaults are just words or actions).  A basic threat gets upgraded to “aggravated” when the person is using a gun or weapon to make the threat more believable.

The question is, can you be convicted of assaulting someone who doesn’t understand what a gun is, or even understand the English language?   To see how an assault plays out with a victim who does not understand what the heck is going on, we’re going to examine the real life case of Davis v. State, 2017 Fla. App. LEXIS 9415 (Fla. 4th DCA 2017). Continue Reading

IMG_4434-e1502116891803-225x300Sometimes, less is more.

It is said that, when comparing business cards, having only a few words on a business card signals that the person is mighty important.  For example, the business card of the old Cuban dictator Fidel Castro just says “Fidel Castro Ruz.  Primer Secretario Del Partido Cumunista De Cuba”.  That’s it.  No phone number.  No email.  No fax line.  No web address.  No “find me on Facebook”.  No Instagram.  No Snapchat.  Definitely no Snapchat.   My card, on the other hand, gives away the fact that I’m not that important of a guy.  I list twenty ways to contact me.  My office number.  Another office number.  My fax number.  My web address.  My email.   You name it, I list it.  I’m an attorney–and I’m just not as important as other folks.  But, this brief moment of humility reminds me of a recent news story.

I don’t live near the beach, unless living an hour away from the closest beach qualifies as living “near the beach”.  I grew up in St. Louis and to a Midwestern kid, driving one hour to the beach is, like, walking-distance to the beach (remember that song, “All the leaves are brown, and the sky is grey…”,  St. Louis is kinda like that song).

doggy-in-jail-298x300Its time for some shocking news, so brace yourself.

People lie.   People make accusations that aren’t true, or they make accusations that cannot be backed up by real evidence.  If you’ve ever been the victim of such dishonesty, your case was probably dismissed–but the scars remain.

At this point, its worth mentioning that dishonesty or false eyewitness accusations are not the only path to a bogus criminal arrest.  The fact is, people make mistakes on the job.  If you’re a cop, a mistake on the job leads to a whole lot of trouble for an arrestee.

For those of you who have been falsely accused, is there ever an apology?  No.  Are you given two tickets to Sea World for the inconvenience?   No.

The good news is, while the government rarely admits to the mistakes they make, we can remove some of the scorn that lingers after a wrongful arrest.  It’s called a seal, or an expunge.   In other words, a bogus charge doesn’t have to be a life sentence of humiliation.

Unfortunately, there are plenty of folks out there who cannot seal or expunge their record, even though the case was dropped.  Why?  Because they don’t qualify.   A prior conviction, even for something as small as a reckless driving charge, will prevent a sealing or expunge of any future criminal accusation.

Here’s an example of how a prior case can mess things up later: In January of 2017, client gets arrested for armed home invasion.  Very serious charge.  Very bogus arrest.  Charges dropped.  Client cannot get an apartment.  Cannot get a job.  Cannot do a darn thing, all because of a dropped charge. We attempt to expunge the home invasion case, but are denied because of a criminal driving while license suspended ticket for which he paid a $50.00 fine back in 1999.  Yikes!   Continue Reading

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Dear Mr. Guidry,

The police won’t really do that on a theft case, will they?  After all, its only theft charge!

Dear Potential Customer,

Yes, the police may end up doing that.  Yes, that would be a waste of tax payer money, but that doesn’t stop them (ever).  And, law enforcement sometimes surprises us with their good old fashioned police work.  Bottom line is: don’t be surprised when the police use technology you only see on TV Shows.  

So, for all you folks wondering just how hard the police are going to work at a petit theft case, or a shoplifting case, or a grand theft case — I have some (potentially) bad news for you.  The advent of “new” technologies enables law enforcement to arrest more shoplifters at Kohl’s, Macys, Wal-Mart and Target than previously thought possible.   What is this crazy “new tech” and why did I put it in air quotes?   Unfortunately, we’re getting more shoplifting arrests due to cheap data storage.  Hard drives, basically.  I know, you’re disappointed because you thought we’d be discussing the laser-guided ear lobe analysis used on the latest iteration of Law & Order.  Sorry.

Store surveillance video isn’t new, but what’s new is the fact that these stores can (and do) rewind months and months of footage to see if a recently caught shoplifter had stolen from the store previously.   Back in the day of VCR’s, stores would write over their tapes within a day or two.   Even five years ago, it was pretty expensive to keep a few days of footage, when you’re saving data from  30+ cameras recording 24/7.   Today, hard drives are cheaper.  They’re bigger.  So, how does this impact a shoplifting case?

Well, it is “possible” that folks who get arrested for shoplifting may have stolen at that store before, and everything that’s happened in the store for the last four or five months in on a hard drive somewhere.  Loss prevention will dig through old video surveillance to find out if the recent arrestee had prior theft shenanigans.  If the old footage reveals the person stealing on previous visits (and they have, that’s why we’re talking about it), there’s going to be a new arrest for an old charge.  Sure, we have ways of beating these petit theft allegations derived from old video footage, but who would have thought that cheap hard drives would lead to more shoplifting cases? Continue Reading

Can you “know” the truth by reading a few words?  think-300x224

Often, truth cannot be reduced to words, its just something you feel deep down (Are we talking about feelings already?  And you thought you were going to learn some legal stuff?  Patience, Dear Reader).

For example, I truly knew my beloved youngest brother.  And, I could write a book containing everything about him, all of our good times, his heart felt laughter, his date of birth.  This book could describe every moment we shared, but those words on a page will not, ever, adequately describe who he was.  What he meant to me.  Words just don’t cut it.

Without getting too fuzzy here (too late?), the good news is that the truth can be conveyed without words.  Maybe a kiss.  Maybe just the touch of a hand (Yes, I stole that from a song).   Think about spiritual practices, for example.  Many people have experienced profound truths that cannot be reduced to symbols on a page.  My pastor always says that you get things in church that you just don’t get anywhere else.

The same goes for music, it can deliver truth where mere words would fail.  Have you ever heard a song a thousand times, only to have it jump out and reveal a truth you hadn’t heard before?  My youngest brother, for example, was a big Grateful Dead fan.  Yes, concerts and everything (that’s what I mean by a “big” Grateful Dead fan, he followed them around).  I never got it.   Then, a few years ago, “Scarlet Begonias” came on the radio.  I’ve heard this song a thousand times.  I like Sublime’s cover better (blasphemy?), but I’ve listened to this Dead song for, like, thirty years.  The song came out in 1975.  In 2016 the lyrics just jumped out at me.  I got it.  After all these years.  Odd, right? Continue Reading

[Dear Reader, if you’re trying to seal a criminal traffic ticket like DUI, leaving the scene of an accident, IMG_4366-e1499627407392-225x300reckless driving, or driving while license suspended–this article doesn’t apply, we’re only talking about sealing non-criminal traffic tickets]

 

It’s official.

There is way too much personal information online.

So much so, in fact, that all this “freedom of information” and “transparency” simply makes it easier for criminals to steal your identity.  No, I’m not about to launch into a Life Lock commercial, it only sounds that way.   For example, there was a  large identity theft ring that stole millions by pulling personal info from traffic citations.

Here’s how it works (no, I’m not going to tell you how to steal). Continue Reading

grace-e1481650484902-300x225They say that if you can’t explain something to a sixth grader–you probably don’t understand it.   Unfortunately, some legal concepts don’t fit nicely into a tiny article like this.  Yes, I’m already making excuses, and we’re not even three lines into this.  More importantly, I’m warning you that this article tends to be a bit detailed (boring?).

So many “scoresheet” issues come up these days, I thought it would be nice to start delving into them.  This article may sound a bit like an episode of Inside Baseball, but for those poor folks who find themselves facing possible prison time on a felony–I hope this article provides you some insights and comfort.

We defense attorneys constantly complain about the minimum mandatory sentences imposed by our legislature.  Sentencing is supposed to be the job of the judge.  Mandatory sentences unfairly tie the hands of our judges, who are forced to give some poor soul 15 years mandatory prison for $95 in oxycodone pills because the legislature has said so, when a bit of drug treatment would have made the world a better place.  Today’s case presents the opposite situation, in which the legislature has tied the hands of the judge by preventing a prison sentence.   Continue Reading

logic-300x218For those of you no longer in school, isn’t it great that we don’t have a test today, or tomorrow?  Have you noticed that kids these days are taking way too many tests?  Two things seem obvious: 1) everybody agrees there’s too much testing, and 2) no one is doing anything about it.  I would add a third point here, which is the fact that kids don’t learn anything from all this testing.  In other words, if you compare students who have taken lots of tests to students who have taken only a few–the kids who had less testing are better off.  In law school, we had one exam at the end of each semester.  No quizzes.  No midterms.  One final exam, that’s it.

There are a few countries out there that, supposedly, have the whole “education thing” figured out.  Take Finland, for example (teachers love Finland, right?).  Kids in Finland spend very little time in school, and very little time on standardized tests.  But, these kids consistently score top marks worldwide (typically battling for the top spot with Singapore).  So, how many standardized tests must Finish kids take per year?  None.  Not one standardized test in elementary school.  Not one standardized test in middle school.  Finland kids take one standardized test in their final year of high school.   That’s it.  I know what you’re thinking: how will we know Little Johnny is doing ok?

Now, before you decide to overhaul our entire American school system, it bears mentioning that Finland has a population of 5 million.  We have 326 million people.  And, there are pockets of the United States that score higher than Finland, so should Finland adopt the educational system of those parts of our country which score hire than theirs?  Where does this comparison game end?

I remember a test in middle school that, basically, was designed to see if we kids could follow instructions.  Here’s the basic format:

Teacher: “Alright class, take out your pencils.  Read all the instructions before writing down your answers.”

Test: “1. What is 12 times 14?   2.  What is the capital of Texas?  3.  What is your principal’s name?  . . . 20.  Don’t write any of your answers on this sheet.”

Yes, this is a sneaky test, and the teacher paces the classroom with a big smirk as the  kids frantically write down their answers.  Eventually, I caught on to this trickery.  I would lock eyes with the teacher as if to say “I can follow instructions, I’m with you, look at my idiot classmates not following instructions….”   [legal segue coming up] This same sort of failure to understand the “meaning of words” is why we’ll be examining a violation of probation case today.  We have a probation officer, a prosecutor, and a judge–none of whom can follow fairly simple instructions.  Shocking, I know.  Fuentes v. State, 2017 Fla. App. LEXIS 7801 (Fla. 3rd DCA 2017).   Continue Reading

st-louis-airport-300x225I was going to title this article “How Target Knows You’re Pregnant Before You Do”, but my mom mentioned to me that my titles never truly match what the heck I’m talking about.  This article is going to be a rare exception to that rule.  Thanks Momma.

The predictive power of computers–once they have enough data–is fascinating.  My preoccupation with data began when I learned that supermarkets were getting in trouble for  sending out ‘suggestive’ coupons after crunching a customer’s shopping habit data.   The prime example of this, I believe, was Target.  Target was sending women coupons for baby stuff before these women knew they were pregnant!  Imagine the father of a high school daughter getting maternity clothing coupons in the mail?  [for a great article on this, check out How Target Figured Out A Teen Girl Was Pregnant Before Her Father Did, Kashmir Hill, Forbes, Feb 16, 2012].   Similar problems are created at home when criminal defense attorneys start sending “Arrested? Hire Me” letters to that same daughter–somebody’s going to start asking questions.  Sure, kids think that they can hide their shenanigans by intercepting the mail before Mom & Dad get home, but “kids helping out” can be even more suspicious than overly suggestive attorney solicitations.

Anyway.  How does Target know a woman is pregnant?  Well, we humans are rather predictable.  No, I’m not talking about you, dearest reader–you are unique, different, and “nobody understands you.”   Target’s computers were able to anticipate the shopping needs of women based upon changes in their shopping history.  Once a computer knows you’re buying luggage, you’ll be buying “travel size” deodorant and toothpaste at any moment.  Same goes for pregnant women.  The data points were, apparently, more sophisticated than the old myths regarding pickles & ice cream.  It was important that Target figure out when a woman was pregnant before it is made public, because, “birth records are usually public, the moment a couple have a new baby, they are almost instantaneously barraged with offers and incentives and advertisements from all sorts of companies.  Which means that the key is to reach them earlier, before any other retailers know a baby is on the way.” [from an excellent article entitled “How Companies Learn Your Secrets“, by Charles Duhigg, New York Times, Feb 16, 2012]  Duhigg’s NYT article provides some clues on how this works, noting that: “One Target employee I spoke to provided a hypothetical example.  Take a fictional Target shopper named Jenny Ward, who is 23, lives in Atlanta and in March bought cocoa-butter lotion, a purse large enough to double as a diaper bag, zinc and magnesium supplements and a bright blue rug.  There’s say, an 87 percent chance that she’s pregnant and that her delivery date is sometime in late August.”  Continue Reading

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Some folks would say that successful negotiations involve “getting to YES.”  I disagree, because too many people say “yes” but don’t really mean it.  We’ve all encountered that dinner time telemarketer that says “You want to stop the suffering of abused children, don’t you?”  Yes.  Of course I do.  But, my “yes” doesn’t mean I’m going to open my wallet.  I’m saying “yes” to get them off the phone.

A better strategy is to get people saying “no” early, because “no” is a far more comfortable word.  An entire book has been written about the nuances of yes vs. no, (and its a great book), called  “Never Split the Difference,” by Chris Voss & Tahl Raz.  Their book explains negotiating techniques that request ‘no’ responses, rather than ‘yes’ responses.   Negotiation techniques can play into every aspect of life (obvious, I know, you’re really learning something today).  One example found in the book involves fundraising, and how the standard phone scripts for these campaigns can raise more money–depending upon whether the scripts are rigged for ‘yes’ responses versus ‘no’ responses.   Yes, these telemarketers are just reading stuff from their computer screen, written by so-called negotiation experts.  Studies have shown, believe it or not, that scripts which prompt a ‘no’ response yield far greater donations.  An example from the book goes something like this:

Fund-Raiser: Do you think we need change a change in the White House this November?”  Response: “Yes, I do.”  “Fund-Raiser: Can you give me your credit card number so you can be part of that change?” (example of a “yes” based script)

Fund-Raiser: Are you going to sit and watch them take the White House in November?”  Response: “No, I’m not.”  “Fund-Raiser: If you want to do something today to make sure that doesn’t happen, can you give to our committee to fight for you?” (example of a “no” based script)

As a side note, and barely related to the “Yes & No” mentioned above, I should tell you about how Derek Sivers feels about saying “Yes” to anything.  (Isn’t this our second side note?  When are we going to read about driving on a suspended license?)  Derek recommends never saying yes to anything.  Never.  If you’re going to say yes, it had better be a “HELL YES!!”.  The original version of this decision making model involves a more vulgar F-word–but the point is–you should be saying “No” most of the time, unless you’re really enthused.  I find this advice great for a guy like me, whose done criminal defense for 24 years (oh, my web people love these types of sentences).  But, when I was just starting my career, I said “yes” to many things, just to get my feet wet.  Now that I’m a bit older, I admit that there’s a certain power to saying “no”.  Fortunately, I am in a position to say “no” frequently.  Anyway. Continue Reading