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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

cell-phone-prohibited-300x295You’ve seen this movie before and it ends with a mom crying.  A mom who will never be the same.

And, you hear this all the time–speed kills.

And, you hear this all the time–don’t drink and drive.

The case for today is G.A.Q.L. v. State but G.A.Q.L. is a juvenile offender so we don’t use his name, we use initials.  I’m going to call him “G” for short.  2018 Fla. App. LEXIS 15240 (Fla. 4th DCA October 24, 2018).

Based on the statements above, you now know what happened, but let me give you the facts anyway.  “G” was speeding, wrecked his car, and killed one of his teenage passengers.  “G” is a juvenile, and his blood-alcohol level was a 0.086.  Basically, that’s over four times the legal limit for minors, the limit for minors being a 0.02.

“G” survived the crash and another passenger also survived.  That passenger decided to chat with the police.

The surviving passenger told the police that “G” had been drinking vodka that day (why get in the car with him? They’re kids, remember?  And, I’ve rode with friends on occasion that, in hindsight, was a not so smart idea).  The passenger told the police she was communicating with “G” via his iPhone that day and even after the crash.  These communications became evidence of sorts, and the police were able to obtain a warrant to search “G”s iPhone 7.

Why is important for you to know that this was an iPhone 7?  Well, there’s a problem with iPhone’s.

The police can’t crack them. Continue Reading

IMG_0476-e1456765765191-300x225Its hard to believe that the movie El Mariachi came out 25 years ago.   Its one of my favorite movies, and I love the director, Robert Rodriguez.   Rotten Tomatoes gives El Mariachi a 93%.  For you Rotten Tomatoes fans, this is a good number, but worse movies (more expensive . . . comic book hero movies, for example)  have received higher ratings.

Here’s the thing: Rodriguez wrote, directed, and filmed El Mariachi in 1993 for $7,000.  And he did it in two weeks.  Feeding the crew of a super hero movie cost millions.  Yes, millions for food.  Again, Rodriguez created a great, classic movie for $7,000.

As you might imagine, it was tough for Rodriguez to film such a classic on a low budget.  I think the term “low budget” covers budgets up to $100,000, so $7,000 should qualify for some word we have yet to invent.  Of course, once Hollywood saw what he Rodriguez could do with $7,000, future budgets ran into the millions.

Surely, things would get easier with more money, right?  There’s a song about Mo Money, but you have to get your 90’s on to sing along to such rap wisdom.

Rodriguez was once asked by an aspiring filmmaker about how few problems he must now have–with more money to make his films.  The student filmmaker explained “I tried filming my movie on a low budget–but this went wrong, that went wrong, everything went wrong!”   I loved Rodriguez’s response: if you are a filmmaker, you are hired because everything goes wrong.  That’s the job.

Same goes for criminal defense.  Things go wrong, that’s the job.

Yesterday, a client apologized to me because his witnesses were a tad difficult.  He was right, but an apology was completely unnecessary.  I fix problems for a living.   After 25 years of defending every sort of case imaginable–my job is to fix things (my web people love these sorts of statements, borderline advertising, I know, but you need to know what I do).   I’m not the Wolf, but things get fixed (follow me here, Robert Rodriguez is friends with Tarantino . . . ). Continue Reading

cocaine-lines-300x225People love being righteous, don’t they?

How many of these righteous people are actually correct?

If we set up a cage match between righteousness and truth, people much prefer being righteous over truth.  This factoid comes to us via studies done by Jonathan Haidt.  I don’t think the results of Haidt’s study surprised anyone, because we all know people who are so possessed by their righteousness that they are blinded to the truth.  You see righteousness prevailing over truth in politics all the time–folks would much rather support their team than take the time to sort out the truth.

So, if you want righteousness,  just chat with anyone who is convinced that their political party is correct.  Or, you could talk to cops.  Same righteousness, different topic.

We defense attorneys read tons of arrest reports where police officers are 100% convinced that a defendant is driving drunk, or dealing drugs, or you-name-it.  If you’re accused of driving drunk and refused to blow into the machine, the entire crime is just the officer’s opinion.  And yes, I’m righteous about my insistence that the police are super righteous.

Our real life case for today involves several officers convinced that someone is a drug dealer–without having any evidence to back it up.    McFarlane v. State, 239 So. 3d 1272 (Fla. 2d DCA 2018).  Here’s what happened: Continue Reading