def-300x225Our entire justice system depends on folks telling the truth, but the truth can be hard to find–especially when there’s no evidence to back up the accusations.

How can we tell when someone is lying?

Without getting too psychological here, I must point out that certain characters breed a bid more suspicion than others.  Some people don’t trust lawyers.  I get that.  For others, they don’t trust car salesmen.  Again, I get that.

Our criminal justice system breeds certain high-level liars, full of serious incentives to not tell the truth.

It all starts when someone gets arrested on a serious drug offense and faces decades in prison.

And then, a ray of hope.  There is a way out of this prison time.

The conversation goes something like this: Prosecutor/Drug Agent: “Hey, if you set some people up, we’ll drop your prison time.”  Ok.  That’s a pretty huge incentive to lie.

After 26 years of defending criminal cases, I can tell you that the urge to avoid prison will drive folks to do some pretty bad things–worse things than what they’re accused of–all sanctioned by the State.  Oh, the irony.

Welcome to the wonderful world of confidential informants (CI). Continue Reading

Memory is a funny thing.  It is not as accurate as we think.Photo_092808_0061-300x225

My mom had a better memory of my childhood than I.  She told stories that I believe happened, and I was there (obviously), but I don’t remember.  Some of these stories I’ve adopted, and I don’t remember whether I’m remembering what actually happened, or I’m just remembering the story my mom told me.

Other times, I remember parts of an experience.  A few days ago, it was cold in Orlando.   And, every time I walked outside “in the cold”, it reminded me of my trip to Berlin a few years ago.  The air felt just like Berlin.  It’s funny how something as simple as the temperature has a way of transporting you to places and memories.

Some songs are attached to memories.  I heard a great obscure song the other day, and it reminded me of my days as a college DJ at KSLU.  Five seconds into this song, I’m back in a DJ booth with turntables and carts everywhere (song, Postcards from Paradise by Flesh For Lulu–told you it was obscure–yes, a  shameless display of my alternative credentials, almost as unauthentic as telling people to be authentic…).

There are plenty of things I want to remember, but I just can’t.  Here’s an odd one, and maybe you can answer this question.  First, some background.

My significant other and I were big fans of Pleasure Island (PI).  For those of you unfamiliar, think back to a time when Disney was at the peak of their powers, no competition in sight.  They decided to create an adult playground full of dance clubs, beach bars, and comedy clubs.  At midnight, they celebrated New Year’s.  Fireworks.  Dancers.  Every night.  It was a sight to behold.

But parties aren’t meant to last. Continue Reading

fun-300x225As I may have mentioned a thousand times before, it seems like we have criminalized everything.  This new level of Big Brother strictness has really hurt our younger folks, who can get a criminal record far more easily than I could have as a kid growing up in the ’80s.

And, without boring you with my adolecent middle-class suburban shenanigans, let me admit now that–under current laws–it may have been possible to charge me and my friends with several felonies back in the day (that’s a slight exaggeration, my mom always told me I was a great kid).

The funny thing about growing up in the ’80s is that most “situations” were handled inside the school–with parents, and without police involvement.  Today, schools have actual cops on staff, on constant patrol.   And, if you have lots of people running around with hammers, it should be no surprise that they find a nail or two every now and then.

As a side note, when I became a public defender back in 1993, I was given “the Tour”.  At the juvenile stop, the assistant public defender in that division was trying to make a point to me about how her young clients end up in the criminal justice system.  She had 30+ youngsters in the courtroom, and she asked the kids to raise their hand if they had two parents at home.  One kid raised his hand.  Then, she asked for a show of hands for those living with one parent at home.  Three more kids raised their hands.  Next, she asked about those living with a grandparent, and several more hands shot up.

In our case for today, we’re heading back into that juvenile courtroom full of kids who have no idea what kind of trouble they’ve gotten themselves into.  Our case begins in a middle school classroom, where several juveniles were telling each other April Fools jokes, on, you guessed it, April Fools Day, 2019.   J.A.W. v. State, 2019 Fla.App. LEXIS 16736 (Fla. 1st DCA 2019). Continue Reading

IMG_3780-300x225I enjoy writing these articles, but, I have marketing overlords that demand relevant content.  Now, what they mean by “relevant” is, writing to someone who might actually hire me.

This article is my tiny act of marketing defiance, written about homeless folks who are being harrassed by sex offender task forces–and–whom I’m pretty certain cannot afford my services.  Yes, I’m virtue signalling within three sentences.  Sorry.

So, its hard enough being homeless.  And its even harder to be a homeless sex offender.    Yes, not many people are going to read past “homeless”, but the good news is that the analysis in our case today applies to most criminal offenses.

Our case for today demonstrates just  how difficult it is to prove the felony called “failure to register as a sex offender.”  Here are the facts.

Mr. Demus was released from prison in Broward County.  He is a sex offender, and sex offenders are required to register with the sheriff and the DMV constantly.  When folks are released from prison, for example, they must register their new residence–letting Big Brother know where to find them.

Mr. Demus was arrested several months after his prison release, in Broward County, for failing to register as a sex offender.  For those of you unfamiliar with the crime “failing to register”, the state gets two crimes for the price of one.  They charged Mr. Demus with (1) failing to report in person to Broward’s Sheriff’s Office within 48 hours of establishing a residence within Broward County, and (2) failing to report to the driver’s license office within 48 hours of any change in his residence.  Demus v. State, 2019 Fla. App. LEXIS 15276 (Fla. 4th DCA 2019). Continue Reading

loan-224x300Everything seems to be a crime these days.

And, everything seems to be so serious.

When I started defending criminal cases back in 1993, several crimes that were misdemeanors are now felonies.  Some stuff that is a serious felony today wasn’t even a crime when I was growing up.  For example, if me and my friends were armed with photo texting abilities back in 1983, I’m pretty sure some of us would have committed a felony or two exchanging pictures with our girlfriends.  Should 16-year-olds be doing this sort of thing?  Of course not.  Should they be labeled a sex offender for the rest of their life for having the raging harmones that most teens (adults?) don’t understand how to temper?

Harvey Silverglate wrote a book about how each of us may be committing a crime or two each day, called “Three Felonies A Day”.

Fortunately, of recent, we’re seeing a shift away from punishment, and towards public safety.  Continue Reading

0-e1570278972378-300x168Have you ever been told, “Don’t just stand there, do something?”

Often times, “doing something” is a terrible idea, yet folks cannot seem to let go of this impulse to pretend that “doing something” will help the situation.

Here’s an important observation of Seth Godin regarding our impulse to ‘do something’:

doing something makes us feel like we’re making the problem go away.  Sometimes the problem isn’t going to go away.  Everything we do at a funeral isn’t going to bring the person back from the dead.  Everything we do in a courtroom isn’t going to help in the short run, even the long run, the victim of that crime.  The idea that people in government need to ‘do something and do it right now’ because we are in pain is one of the weakest points of democracy. . . .

The alternative is to stand there.  Not to stand there and ignore the situation, but to stand there and accept the situation.  Yes, this happened.  Yes, this situation exists.  Yes, we are uncomfortable.  Yes, the answer is complicated.  Yes, we don’t know exactly what to do.  So, we’re going to stand here.  We’re going to stand here not ignoring it but immersing ourselves in it, thinking as hard as we can to understand–maybe for a second, maybe longer–what that other person, what that other force, what that situation needs.”

Seth Godin, Akimbo podcast,  Don’t Just Do Something, Stand There, August 8, 2019.

Sometimes, good things come to those who wait.

Sometimes, doing nothing is a good thing.  It gives you time to think about the situation.

And that’s the good news for today.  It seems like our legislature has given some things a bit of thought, and as a result, we’re seeing several promising changes to our criminal laws, which took effect a few days ago, on October 1st, 2019. Continue Reading

If you’re a rude person, there are all sorts of ways to express yourself.

In a similar vein, if you want to escalate the tension of a situation, there are all sorts of ways to transform the moment into a bigger dealvid-e1568755194369-225x300 than it really is.

One way to spice things up is to put a phone in somebody’s personal space.

“I’m recording you!  What did you just say?  Say it again, I dare you.”

As you may recall, video cameras used to be really expensive.  Only major news networks had the money to annoy public officials or celebrities with cameras.  Now, the potential annoyance has spread to us all.

Welcome to the future.

Sure, we have a Right to Privacy, but technology is creating all sorts of potential privacy violations that were not contemplated by the writers of the Constitution.

Even doorbells are now creating privacy issues. Continue Reading

Mark-Twain-Quote-e1568495858450-300x168How hard is it to predict the path of a hurricane?

We have computer models.  We have Satellite 4000 Radar Plus scanning the skies.  We have people with Ph.D.’s and wind sensors and thermometers and atmospheric pressure sensors and still, no one can tell you where this storm is going to land.  

A hurricane was heading our way a couple of weeks ago, Dorian.  Every news channel had 9 different “models” showing the storm heading in nine different directions.

Or, as Yogi Berra would say, “It’s tough to make predictions, especially about the future.”

And yet, many folks want to know what’s going to happen if they lose at trial.  I would want to know this if I was accused of a crime.  And, I want to answer this question.  I’m tempted to answer this question.  Some lawyer marketing people insist that the amount of confidence I exude when I answer this question may determine whether or not I get hired.

If you ask me what’s going to happen if you lose at trial, here’s my first question.

Who is your judge?

As the saying goes, a good lawyer knows the law but a great lawyer knows the judge. Continue Reading

referee-300x200I’m not a huge baseball fan, but I’ll watch when the St. Louis Cardinals are in the playoffs (and, they usually are).

Like many pro sports, baseball permits the players to argue with the umpire–up to a point.  But, when a certain line is crossed, the umpire throws a weird hand jester pointing to the exit–and the player is ejected from the game.  Even if you know nothing about baseball, you’ll recognize when a player is booted from the game.

What sort of language gets you kicked out of a game?

There are lines in baseball that you don’t cross.  A player can say “Hey ump, come on, that wasn’t a strike”.   Or even,”that wasn’t a [explitive] strike.”

But, the player cannot say, “Ump, you are an [explitive].”  If you complain that the pitch was an [explitive] ball when the umpire thought it was a strike, that’s ok.  But if you complain that the umpire is an [explitive], you’ve crossed the line and you’re getting thrown out of the game.  Even calling the umpire’s mother a bad name may get you ejected from the game.

Sometimes, a team manager may deliberately get himself ejected from the game, just to rally his players a bit.  The same cannot be said in my profession.  In criminal defense, saying the wrong thing may get your client convicted.   In our case for today,  a prosecutor said some things that got a conviction overturned.

Loucrucha Jeansimon was sentenced to 30 years in prison for drug trafficking.  As you may have figured out by now, this sentence was overturned because the prosecutor said some things that shouldn’t have been said. Continue Reading

home-florida-300x225Let’s say you’re inside your home.

Let’s say the police are pounding on your front door.

Let’s say the police are demanding entry because they have probable cause to arrest you.

Let’s say you tell the police to piss off, and that you’re not letting them in.

Let’s say the police kick down your door.

Is this legal?

Notice what I didn’t say.  I didn’t say they have a warrant.  All they have is probable cause to arrest you for something.

What we have here is the facts in the recent case of Nieves v. State.  2019 Fla.App.LEXIS 12095 (Fla. 2d DCA 2019).  Nieves’ girlfriend called the police, claiming he beat her.  The girlfriend waits outside of the hotel room for the police to arrive, the police interview her and decide they have probable cause to arrest Nieves for domestic violence battery.  So, the police knock on the hotel room door in an attempt to arrest Nieves.  Nieves talks to the police and refuses to answer the door.  The police decide to get the resort’s management involved.  The police now have a key to enter the room and arrest Nieves.

However, Nieves braced the bed against the door and as the appellate court noted, “Mr. Nieves’ ingenuity with the bed left [the police] unable to enter.  One officer started to kick through the door.  Some others removed the screen from the open window, grabbed Mr. Nieves, and pulled him through the window and out of the room.  He struggled as the police attempted to put him in handcuffs.”  id. at 3 Continue Reading