clockIf I had a dollar for every time someone told me “Oh, its only a technical violation of probation”, I would be rich.  Actually, if you consider the fact that 71% of the world lives on less than $10/day, I probably am rich.  And, so are you.

Now, I hate it when people tell me how good I have it.  As any economist would tell you, we tend to adjust to our conditions rather quickly.  This is why a billionaire will have just as bad a day due to his poorly presented blue-fin tuna lunch as I will have when my filet-o-fish from Mickey D’s stays in the fryer too long (this is why Tim Ferriss recommends we practice poverty).   Basically, no matter how rich you are, you must resist the tendency to compare yourself to others.  German billionaire Adolf Merckle was the richest man in Germany, until his fortunes decline $4,000,000,000.   This loss put him at the third richest man in Germany.  Yes, a 4 billion dollar loss is a big deal, no doubt, but when the man lost four billion he had $12 billion total.  Even though he had $8 billion after the 4 billion dollar hit–he committed suicide after the $4 billion loss.

Would Merckle’s life been any different having 8 billion vs. 12 billion?  No.  The man drove a 4-year old VW Golf.

Ok.  Back to the law.  This brief article is a tad more technical than my typical ramblings.  We’re going to delve into how a technical violation of probation can be dismissed.  Let me set the stage here.  If someone  is violated late in their probationary term, pay very close attention to the “termination date” of the probationary period, because the violation must be addressed before the termination date.  So, say you’re put on two years of probation, beginning March 28, 2015.  Your probation terminates on March 27, 2017.  Just a little over a week from today.  Now, if probation files a violation and you are picked up on the warrant on March 28th, the violation must be dismissed.   Why?  How?  Keep reading.  (exciting, I know)   Continue Reading

sky-night-300x212Let’s say a child is on his death bed.  He needs some encouragement before he passes on.  If you’re an atheist, are you tempted to comfort him with a tale of a beautiful afterlife, even if you don’t believe one exists?  An atheist friend of mine suggested that this very conversation is what gave rise to our modern notions of a deity and an afterlife (I think there’s a movie with this premise as well).  As a Christian, I’m a skeptic when it comes to the “bedside comfort” origins of belief.  But, if I get off track on religion this early in the article, my web optimizer people will dis-own me. Their little badge at the bottom of the page will vanish and you’ll stop reading.

Yet the question remains, what do we tell people who are about to encounter some horrible fate?  Should we tell them truth?  Can we be honest, yet compassionate?

We defense attorneys sometimes have to tell our clients that they’re not going to make it.  Literally, they may not live through their sentence.  This truth can be hard to swallow.  In Florida, losing a trial may mean a death sentence.  It may mean a life sentence.  Or, it may mean so much prison time that it may as well be a life sentence.

What happens if you don’t tell your client what a crappy case he has, and he loses at trial? Continue Reading

IMG_0476-e1456765765191-300x225What I’m about to say may come as a shock to folks unfamiliar with the workings of our government.

Our government officials exaggerate.

Yes, I’m as tired of such cliches as you are.   That being said, please don’t stop reading just because we’re starting out with a cliche.  Behind every cliche there may be a nugget of truth lurking.

Today, our Circle of Distrust involves law enforcement, and their habit of exaggerating arrest reports.  Why should we care if cops lie a little?  Well, an exaggerated arrest report leads to exaggerated charges, and in the end, harsher sentences for no good reason.   Imagine a horror movie with the Butterfly Effect, where small acts snowball as the movie progresses and there’s blood everywhere by the ending credits.  Trust me, these exaggerations are a major source of injustice (if injustice doesn’t bother you, please note that these exaggerations lead to wasted tax payer dollars, maybe your pocketbook should be concerned over this). Continue Reading

Two thousand years ago, there was a great Rabbi named Akiva.  Akiva was heading home late one night, when the darkness and fog caused him to make a wrong turn.  Rabbi Akiva ends up at this massive Roman outpost.  As Akiva approaches, he hears a wrestling on top of the wall, and a soldier yells down “who are you, and what are you doing here?jump-for-joy-219x300

Akiva responds, “Excuse Me?”

The guard yells, again, “Who are you?  What are you doing here?”

franklin-graham-award-winners-e1484091990549-225x300When you first become a lawyer, it’s a special feeling.  Everything is new, and egos are out of control (new lawyers are the worst, trust me).   Back in 1993, I joined Joe DuRocher’s Public Defender’s office and was thrust into a glorious pot of new attorneys, many of whom are now judges, friends, or both.  Jimmie “David” Gentle was in that group, and we have been friends ever since.   David has taken a different path of late, which we’ll get to eventually.  First, why are we talking about our old boss?

Well, I’m getting more and more sentimental these days.  My morning routine involves listing a few things I’m thankful for, and rather consistently, I have deep gratitude toward my old boss Joe DuRocher.  Joe passed on in 2012, and I miss him.  Also, I owe him.  He gave me not just a job, but a great career.  I’ll never be able to repay him for that.  The problem is, I struggle to recall all the stories Joe had for we attorneys, so, I did what I always do when I need to know something–I Googled Joe Durocher.  I didn’t find much.

I decided to call David, hoping he could recall some stories.  Joe had great stories.  The problem is, many of the stories were told during our monthly PD staff meetings.  I was “too busy” with my PD case load to pay much attention  (as much as I try to make myself look good via this blog, I have to admit that ‘being busy’ simply means that things were out of control.  In that sense, and in a financial sense, I don’t miss the life of a public defender).  Anyway, I do miss Joe’s stories, so, can I get some help here?  Yes.  That’s where David Gentle comes in. Continue Reading

Some things are simply hard to explain.cross-300x224

Why is there something rather than nothing?

How did self-conscious beings arise out of lifeless star dust?

And, how can prosecutors be so cold-hearted?

To help answer question number three, above, we’re going to review a recent case.  To mentally prep you, let’s start with some stretching exercises.  For sentencing purposes, assume that drugs are bad, and selling them is even worse.  Contrary to what you’ve seen on TV, most of the drug sales force out there consist of poor people trying to support their habit.   They don’t own fast cars or 22″ rims.  And, it’s probably a myth that they’re “selling” anything.  Philosopher Chris Rock argues that no one really “sells” drugs–drugs sell themselves.  If you can get someone to buy life insurance, you’re a sales person with real sales skills.

Anyway, our true story of the day involves a single mother of three young children, and she was caught selling drugs in order to support her addiction.  State v. Sawyer, 2016 Fla. App. LEXIS 17723 (Fla. 1st DCA 2016).  The penalties facing Ms. Sawyer were steep.  She scored a minimum prison term of 39 months, a maximum sentence of 15 years prison.  But, does minimum really mean minimum?  Well, not really, ’cause you know sometimes words have two meanings’, as Robert Plant would sing.

Obviously, Ms. Sawyer’s defense attorney wanted the judge to give her something less than the minimum sentence, but to do that she would have to qualify for a downward departure.  I know, boring legal terminology just a few sentences into this.  Sorry.  And, this mandatory prison term clouds other important issues, like, does Ms. Sawyer deserve over three years in prison?  What will that cost taxpayers?  Why wouldn’t we address Ms. Sawyer’s addiction, and have her ready to raise her three kids?  Isn’t it cheaper for the taxpayers, and better for society?

These questions were irrelevant to the prosecutor.  The knee-jerk reaction to someone scoring prison is, “give them the prison time” (you know that when your knee jerks your brain isn’t even processing information).  Some folks would say that your success in life is directly related to the number of uncomfortable conversations you are willing to have.  I’ve had plenty of these uncomfortable conversations with prosecutors unwilling to think these matters through.   Why think?  The legislature has mandated a prison term, so we don’t have to give any thought to this, right?    Well, we’re going to do some thinking here.   Was Ms. Sawyer’s attorney able to get her to qualify for less than 39 months via a downward departure?   Continue Reading

I realize that none of you are pigs.  That being said, let’s review a common scenario that will come as a shock toiphone-passcode-169x300 my wholesome readership.  Imagine an attractive woman is shopping in Isle Five–the feminine hygiene isle–and she finds herself surrounded by men looking at the same products.  Are these men purchasing awkward products for their lady at home, or checking her out?

Real life example number 2: A friend of mine worked for a major hardware store (their logo is orange, you figure it out).  Roughly 85% of the male employee’s walkie-talkie chatter involves notifying other employees of “yoga pants in Isle 12”, or “short shorts in Isle 22”.  I’m just saying.

“The beautiful people” are not the only targets of creepy gawking shoppers.  Sometimes, even the not-so-attractive folks attract a crowd.  To confirm this, visit a website called “The People of Walmart” (www.peopleofwalmart.com).  Be Warned: you cannot “un-see” some of these images.  Suffice it to say that folks shopping late night at Walmart fail to pull up their pants, or bend over while wearing club skirts too short to permit any sort of bending.  You’ve heard stories that start with “You won’t believe what I saw at Walmart last night”– those stories are real. Continue Reading

graceGod and the Devil were walking down the street, and God picked up something out of a ditch.  The Devil asked God “Hey, what’s that you have in your hand?”  God said “It’s the Truth”.  The Devil said, “Give that to me and I’ll help organize it.”

I enjoy observing how different religions organize their interpretation of the truth.   My enjoyment doesn’t involve the kind of condescension a modern scientist may have towards a primitive tribe buried deep in the jungle (how dare they refuse the enlightenment and progress of science).   My enjoyment of various religions comes from the fact that there may be a bit of truth sprinkled throughout the world’s traditions. That being said, I must confess that it is difficult to interpret Christian Speak or Christianese–and I’ve been a Christian the vast majority of my life (I’ve had my doubts, which makes me sympathize with atheists more than your average follower of a Torah observant Jew).

In many churches, I simply do not understand what they are saying.  Yes, I read the Bible.  Yes, I have a Masters Degree and a Juris Doctorate degree, so all of this thinly veiled boasting implies a level of linguistic skills that should get me through a church service, right?   Wrong. Christian phrases and mantras leave me scratching my head.  What does it mean when a Christian church claims to be “Gospel centered”?  I don’t know what this means.  The good news is, fun with words is not limited to faith.  Card games have now capitalized on ambiguous phrases.  Just try playing “Cards Against Humanity” with someone unfamiliar with politics or porn.  Half the fun of a word game like “Cards Against Humanity” is trying to explain terms like “glory hole” to someone who has never seen porn.

Anyway, our next big word for today is Grace.  The word rarely gets a mention in criminal court rooms, but there is one exception to the rule.   Florida Statute 948.05 states that a judge may, at any time, “discharge the probationer or offender in community control from further supervision”.   This, my friends, is what we call “early termination of probation”.  And, it is entirely a matter of grace.   Continue Reading

To understand how long it takes to expunge a case, let’s indulge in a fantasy.  Imagine an American company makes Teddy Bears in an Orlando factory.  The factoryexpunge no objection employs teenagers to sew the bears together and ship them out (unrealistic, because teenagers don’t work in factories, and we don’t have factories in Orlando, do we?  No, cheesecakes don’t count).

At this imaginary factory, three employees do all the work.  Cindy attaches the arms and legs.  George attaches the eyes and ears.  And, Bill puts the tag on, boxes up the bear, and ships bears to happy children everywhere.

How long does it take to make a teddy bear?  That depends.

Let’s say you walk into this Teddy Bear factory and notice that Bill is sitting around twiddling his thumbs.  He has no bears to bag and tag (as the coroners office would say).  Why are there no bears to ship?  Because George has 1,000 bears stacked up at his desk waiting for eyes and ears.  It will take a week for George to catch up.  This, my friends, is what we call a bottleneck.  Now that we’ve refreshed your recollection of 9th grade economics, let’s dig deeper. Continue Reading

I rarely watch horror movies, but I’ve seen enough to know that most of the plots focus on young white kids IMG_3441doing something stupid.  I define stupid as entering a creepy abandon house for no good reason.  Many stand up comics have good rants on the horror film behavior of black people versus white people.  A complete list of these differences was teased out by comedian Orlando Jones, and it can be found here.  For example, Orlando believes that black folks would never “adopt a kid who turns out to be the devil”, or “eat grilled chicken”, and these are common activities for white horror film stars.   Eddie Murphy believes that horror films will never star black folks because if “there’s a ghost in the house, [black people] get the fuck out”.  The movie would last 30 seconds.  No needless investigations of what’s lurking downstairs.  (See Eddie Murphy’s  “Delirious“, it’s worth a viewing even if it means you forget about reading the rest of this, it’s just that good)

There’s some great horror movies out there known as “found footage” films.  The idea is fairly simple: documentary filmmakers disappear under mysterious circumstances, and someone finds their footage.  The Blair Witch Project is one such film.  UCF alum created a fictional account of three film students who disappear after entering a forest to investigate a local Blair Witch legend.  All that’s left of the crew is their film footage.  Spooky.

The found footage genre owes its origins to Ruggero Deodato’s 1980 shocker Cannibal Holocaust.  By 1980’s standards, this horror film was so “real”, so controversial, that its creator was arrested soon after it’s premiere in Italy (and yes, the films were seized as well, what great free promotion!).  The plot was simple: Indiana Jones types travel to study remote cannibal tribes in the jungle, and they never return.  When they don’t return, investigators re-visit the jungle to investigate their disappearance, and as per the formula–they find the missing crew’s shocking footage.  Let’s face it, if someone is dumb enough to hang out with a whole jungle tribe of Jeffery Dahmers, going missing cannot be a good thing. Cannibal Holocaust contains animal mutilation, murder, rape, and absolutely grotesque images.  Eventually, the murder charges against the film’s creator were dropped after several of the “dead” actors appeared on TV to explain how they shot the film.  The film grossed $200,000,000, and that was in 1980.  Yes, you heard me.  The present value of $200 million from 1980 is, approximately, one zillion dollars.  There was only one film to beat out Cannibal Holocaust in 1980–Spielberg’s E.T. The Extraterrestrial.

Believe it or not, our Florida case for today involves found footage (of sorts).  In State v. Tumlinson, Mr. Tumlinson was charged with lewd or lascivious molestation of a child under twelve years of age “after law enforcement discovered and then questioned Tumlinson about his personal journal entries that described sexual contact with a child, J.T.  Law enforcement was contacted after Tumlinson’s former roommates found the troubling journal entries Tumlinson left behind at their home.”  (Fla. 2nd DCA 2016, Case NO. 2D15-1814).  (You didn’t think I could transition from Cannibal Holocaust to a Florida case, did you?  I’m not proud of the segue here, but we’ve got to talk about the law at some point) Continue Reading