Science can explain everything.cropped-message-300x188

As I sit here typing, neurologists can explain how the light from the screen is processed by my retina, which is directly connected to my brain.  Some scanner out there (fMRI?) could probably map out my visual cortex as I’m looking at this screen.    Another branch of science could probably explain how my brain is sending signals to my fingers so that I can hunt & peck this article.  Scientists have no problem mapping out the function of things and figuring out their structure.  Easy stuff.

The tough question is, why should these structures give rise to any sort of feelings?  Sure, science can explain everything–except how I feel.   I’m sure some coffee scientist out there can drill down into how the delicious smell of coffee first hits my nose, which then sends a signal to my brain, which then causes me to rush to the Keurig machine and retrieve that precious liquid that gets me through the rest of day.  But, no scientist can tell me how that coffee is going to taste.

No, we’re not going to dive into “the hard problem of consciousness” today (or ever?), as I’m running out of words (web promoter people tell me to keep it under 1,000 words.  Sorry), and you’re running out of interest.  Suffice to say that, even though there are plenty of limitations on science, certain criminal cases are begging for a bit of attention from the white coats.  You need science to prove certain allegations.  You need science to defend certain allegations.  We’re going to talk about just such a case today.

Demetrius Nugent was convicted of trafficking in oxycodone based upon lots of pills found in a car he was driving.  Nugent v. State2019 Fla. App. LEXIS 89333 (Fla. 2d DCA 2019).

Here’s what happened: the Lee County Sheriff’s office was conducting a drug investigation, and they had their eye on a red Mustang that kept making odd trips in and out of a neighborhood.  They followed the Mustang to a convenience store, where they then observed a Nissan pull up next to it.  Then, someone hopped out of the Nissan and into the Mustang.  The Nissan person exited the Mustang with something in his hand, but the cops didn’t know what it was.  The Nissan leaves the convenience store and naturally, the police follow.

Now, remember what I said upfront: the police are conducting a drug investigation.

And, how do you find drugs?

Well, you’ve got to come up with a reason to stop that Nissan. Continue Reading

home-florida-300x225Have you ever met that perfect couple?  You know, the couple that causes bad thoughts to pop in your brain, like, “can anyone really be that happy?”  They must be hiding something, right?   If you’ve ever tried meditating, then you know how many random thoughts are popping in and out of existence at any given moment.  It’s tough to control sometimes.

And, I also can’t control that wave of joy that washes over me when I discover that the perfect couple is not, in fact, so perfect.  Again, these feelings just happen.  In German, the word for taking joy from someone else’s failure is “Schadenfreude.”

When the perfect couple breaks up, everybody wants to know the reason.  The simpler, the better.  We want a one-word explanation, if possible.  She “cheated”.  He “abused” me.  She’s a “narcissist.”

The problem is, reducing a complex situation to one word isn’t accurate, or helpful.

There’s nothing more annoying than watching some talk show host demand, “Give me one reason why I should vote for your candidate.”  Really, one reason?    When a judge asks “Give me one reason why I should not send your client to prison,” I’m ready with an answer that will keep my client out of prison–a better answer than what the judge expects from such an unreasonable question.

One of the many things I’ve begun to question after 26 years of defending criminal cases are the tiny convenient “facts” the police pepper throughout their arrest reports.  Yes, I’m using air quotes around “facts”.  The case we’re going to discuss today is a prime example. Continue Reading

fun-e1558908913901-300x249If you’ve ever seen an interview with a doctor or scientist, they always prance out their white coats because it makes what they’re saying more believable.  Now, if you add blinking lights in the background, you’ve taken it to the next level.  Experts love technology.

One of the cool things about advanced technology is that, if sufficiently advanced, it is indistinguishable from magic.

For example, who would have thought that a machine could ever read our mind?  Neurologists now claim they can “read your mind” by utilizing various technologies, even off the shelf EEG monitors to read electrical patterns given off by the brain (redundant, slightly).  When these machines get up to speed, they will help stroke victims who have lost their voice to speak once again.

As smart as neurologists think they are, Silicon Valley may have beaten them to the punch.  Google can “read our minds” better than the neurologists and their gizmos.  Google knows what I’m going to type before I type it.  Heck, Amazon knows what I’m going to order before I order it and I’ve heard that they’ll shift inventory of certain items to a closer warehouse in anticipation of my order.  Even scarier yet, some retail stores have hit young ladies with coupons for maternity clothes before they (and their very upset parents) realize they’re pregnant because their purchases fit a purchase pattern of other pregnant folks.

Cops can also predict behavior.  Much like the timing of a maternity coupon before the woman knows she’s pregnant, cops can sense when things are about to go down.  And, that’s how we arrived at our case for today.

At around 3:00 a.m. a Polk County officer was parked at a church when he noticed noise coming from a nearby (closed) Walgreens.    The officer sneaks up on the back door of the Walgreens and calls for backup as he sees two men using a yellow crowbar to pry open the back emergency door of the Walgreens.  These guys must have sensed trouble so they ran away and were quickly picked up by a black Mustang.  The officer calls in a description of the car, and a few moments later the black Mustang was pulled over down the street.  Sanchez v. State 2019 Fla. App. LEXIS 6756 (Fla 2d DCA 2019) Continue Reading

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You’re about to hear some strange goings-on, and because so much strange stuff tends to come out of Florida, let’s start with a true story from out West.

Earlier this year, a nursing home in Phoenix discovered that a patient of theirs was pregnant.  Eventually, this nursing home patient gave birth.  Now, a woman giving birth isn’t odd by itself.  Even a woman giving birth in a nursing home isn’t the craziest thing ever, but this particular woman has been a vegetative state for 14 years.   Even after giving birth, this woman is still in a vegetative state.

The police department didn’t need to call in the FBI to help solve this one.  The local cops just obtained DNA samples from all the male nurses working at the assisted living facility and moments later–crime solved.  To no one’s surprise, the father of the child was a licensed nurse in charge of taking care of the woman.  [See Also the film “Kill Bill Vol. 1”, the intro scene entitled “My Name is Buck”, its art imitating reality, and as Greg Graffin once sang, Sometimes Truth is Stranger than Fiction (my web optimizer people discourage obscure punk rock references, sorry web people)].

A similar strange thing happened in an Osceola hospital recently.

A seventeen-year-old girl gave birth to a child.  Sure, she’s a bit young to be giving birth.  In this case, the oddity was the fact that her baby had a brain defect, a chromosomal abnormality.  This abnormality tells the doctors that, basically, the crime of incest is afoot.  Continue Reading

Some of you are too young to remember late fees.IMG_2927-300x225

Late fees involved renting a $3 movie and paying another $6.42 in late fees.  Late fees created that pit in your stomach when you glanced over at your coffee table, noticed a blue & yellow Blockbuster video box, and wondered to yourself “Wasn’t that supposed to be returned last week?”

Blockbuster made $800,000,000 per year on late fees. I’m pretty sure I contributed about $100/year to that pile of money, and it made me angry every time.  It’s not too far of a stretch to assume that most Blockbuster customers hated their late fees.  But solving problems will make you money, and one man’s problem is another’s opportunity.   So, a tiny company saw my late fees as an opportunity and did the seemingly impossible: video rental with no late fees.

Wow.  What a concept.  And that’s where the Netflix revolution began.

When I heard about this video rental company without late fees, my next question was: where do I sign up?  I gladly paid Netflix a monthly fee to mail me DVD’s long before Netflix was crowned the world’s largest movie production company.

Here’s the crazy thing: Blockbuster saw all of this unfolding.   They could have stopped it.  Yes, you know how this story ends, but as the story goes, someone in Blockbuster management with a “C” title (could have been a CEO, CFO, COO, who knows) proposed to their board that they do away with their late fees, as Netflix had done.

The board erupted in laughter.  “We ain’t giving up $800,000,000 in late fees, are you effing crazy?  We should fire you just for suggesting such…” (this is my fictional account of what happened in the board room, I’m sure they used actual curse words in the real meeting).

Blockbuster could have bought Netflix for pennies on the dollar  (just as Yahoo could have bought Google for pennies on the dollar, and the list goes on and on).   Yes, hindsight is 20/20, and as Yogi  said, “it’s tough to make predictions, especially about the future.” Continue Reading

math-300x195For a moment now, I want you to conjure up your best Carl Sagan sense of wonder.  Remember his awe at the ‘unreasonable effectiveness of mathematics in science’?

Physics uses math in an attempt to model the world, and models predict things.   For example, the right mathematical models can reveal how billiard balls or motors or planets will behave.  It seems complicated because these equations can fill entire blackboards.  But it is easy.

Now, with even greater awe, imagine how useless mathematics is in biology.   Yes, you heard me.  Math is useless.  As Noson Yanofsky notes in his book The Outer Limits of Reason, math isn’t good at predicting “how a crowd [will] react to a certain event, or how a human [will] react to a relationship” because that “is far too complicated for our mathematics.  Mathematics does not predict all phenomena.  It only helps with predictable phenomena.  Or, as it is slightly humorously phrased, ‘God gave the easy problems to the physicists‘.”

I have a rule in my office: No Math.

I don’t do math.

So, it should come as no surprise that when someone wants me to compute their chances of success at trial or at a hearing or what-have-you, I won’t do it because attaching numbers to such unpredictable events is useless.  Basically, the outcome of a criminal case can often be “far too complicated for our mathematics”.

Sure, you must ask an attorney “How many times have you defended this type of case, and what kind of results are you seeing?”  I get that.  But, any answer from an attorney that says something to the effect of: “Your chances of winning this Motion to Suppress is 79.3%”.  They’re lying.  Or at the very least, their quantification of past results into a predictive model of future success needs to be scrapped.  Quantifying the situation gives a potential client a false sense of security.

I started my defense attorney career as an assistant public defender.  My first day in court, ever, was my first day of work.  It was a trial day.  I won my first trial.  But, I really knew very little about defending criminal cases.  My stats remained great, but my actual knowledge was minimal.  As I’ve gotten better at this (and 26 years in, I’m still learning…), I’ve also taken more losses.  My stats are worse as I get better at this.

No defense attorney has a crystal ball.  No one cannot predict every outcome of every criminal case.  If an attorney guarantees you an outcome–get it in writing.  Even physicists, with all their fancy equations, can only predict so much before resorting to uncertainty principles.  We can’t even trust the weatherman to tell us the weather next Thursday, can we?

That being said, we attorneys use our experience to make very accurate predictions about how a case will go, from start to finish.  Even without math, humans are fairly predictable, judges are fairly predictable, and we can prepare our clients accordingly.   No matter what you’re charged with, we attorneys must be able to tell you what range of punishments are available to the judge.  We must be able to answer the simple question “What Am I Facing?”    Continue Reading

fun-300x225Orange County has been on the cutting edge (if that’s what you can call it) of helping out folks who have made just one bad mistake.  We call this cutting edge help “diversion”.  And yes, I am guilty of stretching the term “cutting edge”, and  I’m warning you now that this article may contain a few more cliched terms.

Anyway, Orange County was one of the first counties (out of 67 in Florida) to institute a DUI Diversion program.  For those of you unfamiliar with “diversion”, its just a fancy term for an agreement with the prosecutor that goes something like this: “do a bunch of stuff, and we’ll drop your case.”   You can find more information about Orange County’s DUI diversion program here, but the point is, it has taken Seminole County almost a decade to create DUI program of their own.  The new program is creatively titled the “Seminole County First Time DUI Offender Program”.

Let’s start with the basics. Seminole County is careful not to call their new program “diversion”,  because “diversion” means “dismissal”.  So, it is not a diversion program.   But, Seminole’s First Time DUI Offender Program does accomplish lots of positive things–it just doesn’t go all the way to dismissal.

I know what you’re thinking because every person charged with first time driving under the influence is thinking the same thing: “What’s going to happen to me?”  Well, I’ll tell you.  In Orange County, if you’re a DUI first offender,  your case “may” get dismissed.  Thrown out.  Gone.  Sure, it will take lots of work on your part, and your attorney’s part, but dismissal thru diversion is a very real possibility.

In Seminole County, the answer to the question “What’s going to happen to me on my first time DUI?”  is not so simple.

Seminole County isn’t going to drop your case, as would happen with Orange County’s diversion.  But, Seminole County will drop the DUI charge down to something lesser, called an Alcohol Related Reckless Driving.  This is a beautiful thing.  Its not the most beautiful thing ever, but its still a beautiful thing.  As a bonus, you will not be convicted of this lesser reckless driving charge–meaning, you’ll receive a withhold of adjudication.  Meaning, this case can be erased later (we call this “sealing”, and its a story for another day). Continue Reading

Truth is a funny thing.IMG_5029-e1529527687928-300x73

Everyone thinks they’ve got it.

Scientists think they have it.  Every religion thinks they have it.   And, its a tad curious how psychedelic drugs cause their users to preach of new truths and perspectives.

For a hard core materialist, it won’t matter how believable an “experience” may be–its not real unless it can be scientifically verified.  (Side Note: there’s some really odd complaints these days about the fact that falsification of a scientific theory isn’t as important as it used to be–but this is a story for another day)

Anyway, speaking of materialism, love is tough to prove.  Even pain is tough to prove, doctors have to take your word for it.  For some, it may be that mathematics contains more truth than the probabilistic sciences can deliver (for you statistics fans, isn’t it true that all of science can be reduced to probabilities?).

So, if there is such a thing as “truth” floating around out there, what are some reliable ways to find it?

In our court system, the jury decides what is true.  We call them the “finders of fact”.  We attorneys obtain a Juris Doctorate degree just to better navigate the filtration of what the jury can–or cannot–hear.   the rule against presenting hearsay testimony, for example, keep rumors out of our quest for truth.

Florida’s criminal laws have lots of rules regarding confessions.  Again, if we’re on a quest to discover the truth, what’s better than a confession, right?  Well, it depends.  If the confession comes after spending 10 hours with a few cops, can you really trust that confession?   Our Supreme Court started laying down confession rules many years ago in  Spano v. New York.  360 U.S. 315 (1959).   Spano was suspected of murder but the cops couldn’t get him to talk, so they rounded up a close childhood friend, who then manipulated him into confessing.    Yes, his confession was thrown out of court.

Surely, that sort of thing doesn’t happen today, does it? Continue Reading

IMG_3780-300x225Sometimes, the toughest thing to do is to not do anything.

A common, thoughtless phrase goes something like this: Don’t just stand there, do something.  Almost always, this is bad advice.

Our brains are hard wired to “do something,” much in the way that a deer runs across a busy road when he hears a random noise behind him.  This impulse to “do something” may have helped us survive in the wild, but it no longer carries the same wisdom.  “Doing something” tricks us into thinking we have control of the situation, and probably makes us feel less regret later, should things turn out bad.  Unfortunately, doing something can get you into trouble.

If you have the courage to “not” do something, to stand still, you’ve just increased your chances of success.

This is Warren Buffett’s 5/25 Rule.

Now, I can already sense the eye-rolling, and eye-rolling rates has been linked to a marriage’s chance of success, so I take your eye-rolls seriously.  Plus, invoking Buffett’s name will make some of you yawn, in the same way that talking about quantum physics at a gathering will bore everyone to tears (guilty as charged).

Here’s how you follow the 5/25 Rule.  First, write down 25 things you need to do, and place them in order of importance.

Next, circle the top 5.

Keep in mind that, even though you’ve circled the Top 5 goals, the other 20 goals are still pretty important to you, right?  Well, even though those other 20 things are super important–the Rule requires you to cross out the remaining 20 things on your list.

Under the 5/25 Rule, the bottom 20 goals are completely out of your life.  Forget about them.  Actually, Buffett goes beyond mere forgetfulness, he says these 20 things just became your “Avoid At All Cost” list.  You may be tempted to work on #6, or #9, or #14, because these are still important things.  But, you can’t touch them.  You can’t do anything on this avoidance list until you succeed on your five most important things.

And that, my friends, is the 5/25 Rule.  And that, my friends, is what we call FOCUS.

Imagine you’re a reporter, and you land an interview with Bill Gates and Warren Buffett sitting at the same table.  their first interview together.  This actually happened.  And, imagine you ask them a simple question “What is the one trait that made you both rich?”

They both answered with the same word, at the same time.  FOCUS.   Continue Reading

cof-300x225There’s an art to giving a good apology.

It is said that for an apology to be effective, it has to be costly.  No, we’re not (necessarily) talking about money.  A good apology doesn’t require the restaurant manager to wipe out your tab and fork over a $50 gift card.  The cost for an effective apology can be to your reputation (for example: “I want everyone to know what a bad attorney I’ve been”).  Or, the cost can come in the form of a future commitment to do better (“We’re changing our corporate structure to include more training”).

Apologies are not only the right thing to do, but they can be good for business.  Doctors who apologize to their patients for screwing up are significantly less likely to be sued by that patient.  As such, we now have “I’m sorry” laws that don’t permit folks to use an apology later in court.

All of this brings me to my own apology, of sorts.

I passed the bar in 1993 and my first job was as a public defender (PD).  My first day on the job as a PD was a trial day.  Not just any trial day, but the first day of a very busy trial period.  I had over 50 clients set for trial–and I had never stepped foot in a courtroom.  Like I said, this was my first day as a lawyer, first job, first everything.  When the elevator doors opened in Orange County’s old courthouse, there were so many people set for trial that you could barely get to the courtroom.

So, if you were my client back in 1993 on my first day as a public defender–I’m sorry.  Yes, I did the best I could.   But, you folks did not get my best work.  Not even close.  Actually, I’m a better lawyer after 25 years of defending cases than I was last year, 24 years in.  I wish I could apologize to all the folks who didn’t get my best work while I was a public defender.  That being said, I loved my time as a PD, it was a training camp of sorts, and it is a mandatory experience for all aspiring criminal defense attorneys.   Continue Reading