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IMG_0179-e1519940395141-300x142It’s pretty rare that you get a chance to meet your heroes.  I haven’t.  But years ago, when I was playing in bands, our band manager Sarah met the lead singer of our favorite band.

I couldn’t wait to hear from Sarah about her encounter, she actually interviewed him.

Needless to say, even though his music was brilliant–the man himself was severely lacking.  Sarah was deflated and she learned the hard way the old cliche ‘never meet your heroes’.  Part of this cliche is rooted in the fact that a person’s genius in one area of life doesn’t mean that the person is great in all areas of their life.  We all know that a great actor rarely has any sort of superior wisdom over the bum on the street.  As Pat Sajak noted, “Trust me, one’s view of the world isn’t any clearer from the back seat of a limo.”

Now, let’s get to some legal stuff.  My apologies for the rough segue.

If you’re accused of possession of a controlled substance, there are only two ways that you can be convicted of this crime: First, the state may prove that you “actually” possessed the drug.

Meaning, the drugs were in your hand.  Or, the drugs were in your pocket, sock, bra, anywhere on your person. Continue Reading

cotton-swabs-jumpstory-300x200Sometimes, too much agreement makes me wonder.

If you’ve seen as many witnesses testify as I have, when you see their stories miraculously line up so neatly, it makes you wonder.

Do you believe them more because there are 9 witnesses, versus 5?  Two witnesses versus one?

Now, just because witness stories line up perfectly doesn’t mean these witnesses are lying.  I’m just questioning their accuracy.  Every time the prosecutor calls another witness that agrees with the one before, surely the case for my client is getting worse, right?

Well, agreement isn’t always a good thing.

Back in the day, under Jewish law, a capital crime required 23 judges. If every judge in a case found the defendant guilty, the suspect was deemed innocent.  Free to go.

This legal concept is known as the Paradox of Consensus.  Basically, too much agreement is a red flag that there may be a problem with the process or system generating the result.

I’ve been defending criminal cases for over 27 years, so I’ve had to stand up and say “Objection Your Honor, Cummulative” when the state calls the hundredth witness to say the same thing the other 99 witnesses said.  Prosecutors want to call twenty witnesses to say the exact same thing, figuring that with each additional conforming bit of testimony–the chances of them all being wrong would be pretty slim, right? Continue Reading

question-mark-231x300Are our courts just paying lip service to alleged victims?

As of January 8th of this year, we Floridians enacted Marsy’s Law, which requires our court system to keep alleged victims informed.  It gives a voice to victims.

But sometimes, nobody listens.

And that’s the case we have today.  An alleged victim that was utterly ignored by the prosecutor, by the judge, by the jury, and eventually–even the appellate judges ignored her.

In the recent case of Daniels v. State, Daniels was convicted of aggravated assault with a firearm. 45 Fla. L. Weekly D 1380 (Fla. 1st DCA 2020).  The facts brought out at the trial were pretty similar to many, “he said, she said” cases.

We’ve seen this movie a thousand times.  A couple gets into a heated argument.  Things were said in the heat of the moment that, upon sober reflection, may have not been entirely accurate.  Later, nobody believes the alleged victim lied the first time, they think she is lying the second time.

Where does the truth lie?  Well, we don’t have to decide that.  This is about proof beyond every single reasonable doubt.  If the alleged victim claims she lied–that should constitute instant reasonable doubt.  Case closed. Continue Reading

weed-marijuana-300x200Remember those scratch n sniff stickers growing up?  It seems weird that, somehow, you can put the smell of just about anything onto a sticker.  Fruity smells are pretty popular: orange, grape, apple, strawberries. These stickers have evolved since I was a kid, and if you go on Amazon as much as I do (come on, you know you do), you’ll find scent stickers for popcorn, avocado, and yes, animal smells.  Even unicorns.  Hey, why not? My guess is that unicorns smell like a rainbow.

Now, just because something “smells like” an apple, or a bunny rabbit, doesn’t actually mean that there is an apple somehow engrained upon a sticker.  I hate to break it to you, but your nose can be fooled.  Your nose can lead you to false conclusions.

I remember growing up in St. Louis and at about age 15, I went to my first arena concert.  It was at the “Checkerdome” (destroyed decades ago, but fond memories linger), and the band was Loverboy.

As I would come to learn, Checkerdome concerts were like a bubble of fairly lax marijuana laws in the same way that Indian reservations host more gambling options than other places.  At the beginning of the show, as soon as the lights went out, half the place lit up.  There was so much marijuana smoked in that building that even the folks not smoking weed would probably test positive for the next 30 days.  So, when my dad picked me up from the show–he was pissed.

“Son, do you want to tell me something?”

“No dad, it was an awesome concert.  They had these lasers, it was great.”

“Son, you were smoking weed, weren’t you?”   I wasn’t.  Not technically.  But as I soon realized, every inch of me smelled like it.  I have a married friend whose wife uses a similar test to smell for evidence of cheating, but that’s a story for another day.

Supposedly, law enforcement officers have better scent detection than the rest of us, but the conclusions they draw from their sniffs may not be as reliable as they once were.  There are legal consequences to an officer detecting an odor of cannabis.  If an officer smells the odor of marijuana coming from your car, everything & everyone in your vehicle can be searched.

The reason for this is that the odor of cannabis supposedly provides an officer probable cause that something illegal is afoot.  Probable cause is a squishy subject, one that entire seminars and books are devoted to (well, maybe not an entire book, but several chapters).  When we say that an officer has “probable cause,” we mean that the officer reasonably believes there is “a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213 (1983). Continue Reading

jail-e1589564822154-225x300If you’ve got to do a bit of time in jail, then it is essential to squeeze out every last drop of credit time served that is humanly possible.

And, if you find yourself in that unfortunate position of having to await transport from another state’s jail back to Florida you may be wondering, is any of that time in a “foreign jail” going to count?

Well, that depends.

In the recent case of Chimale v. StateChimale filed a motion to get an additional 97 days of additional foreign jail credit for time spent in an Argentina jail awaiting transport back to Florida.  2020 Fla. App. Lexis 5109 (Fla. 1st DCA 2020).  Argentina wasn’t holding him on any other charge, so most folks would assume that because the Florida case was the only reason he was being held–Chimale was entitled to that time served.  But, that’s not the law, and his request for that credit time served was denied.  Here’s why. Continue Reading

cocaine-300x225Remember that episode of Seinfeld where Elaine dates a gynecologist and she complains of his “lack of interest” in her, and the running joke was that her doctor friend had seen plenty of women at work all day, so Elaine couldn’t do much to peak his interest after work.  I get that.

And, I feel the same way about crime TV shows.  I get this stuff all day, so I don’t need to go home and watch more of it.  In real life, the nuts & bolts of a criminal case are far less dramatic and often–very important aspects of the case get ignored on-screen.

For example, one of the most important documents in a criminal case is The Information.  It’s the document that formally charges a citizen with a crime.  Other states call this an “indictment,” but in Florida, we call it an information.

Our real-life case for today involves a citizen convicted of drug trafficking, and his conviction required him to serve a minimum mandatory prison sentence of 15 years in the Department of Corrections.  All trafficking cases carry a minimum mandatory prison sentence, but all the drama, in this case, came from the Information.  Continue Reading

Mark-Twain-Quote-e1568495858450-300x168Way back in the early 80’s, kids were selling newspapers on every corner. I remember one such kid would always be sitting outside of my church after mass, and another kid would sell newspapers in front of Dierbergs (a supermarket in St. Louis, where I grew up).

Newspapers began their decades-long slide by this time, as folks’ attention spans were just starting to shift to different platforms. This was the early ’80’s, and the first indication that technology may be providing we kids some alternatives happened at my friend’s house across the street.  They were the first to get a small dish on their roof that only provided them one channel–Showtime.

Can you imagine, only one channel?  It seemed like my neighbors were rich, to be able to afford this small dish on their roof that no one else had.  I was in middle school at the time, think 1981-ish, and we would gather around my friend’s TV at night when the parents went to bed, hoping to catch an R-Rated movie. And, Showtime always delivered. We middle school boys were in heaven.

Continue Reading

Check-in-information-380907-300x200

Remember that old Hertz commercial from the ’70s with OJ Simpson running through the airport like he’s heading towards the endzone?

We don’t want to be late  returning our rental car, do we?  We might get charged for an extra day or an extra hour, or criminally charged.

Have you ever read your car rental agreement, or just rushed through initialing all of the boxes?   Believe it or not, initialing those boxes (or not) may create some interesting issues later. And, that’s our real-life case for today.  Try to contain your excitement, because this case contains an important lesson for defending criminal cases.

Sampaio was arrested for the felony of failing to return a hired vehicle.  He didn’t return a car, and he signed “most of” his car rental agreement.  Yes, he conveniently skipped an important box, but more on that later. Continue Reading

Workplace-of-manager-397536-300x200

For those of you working for a big company, isn’t there always someone tucked away in some cubical who makes you wonder: What does he do all day?

Some people collect a paycheck, yet do nothing.  No work gets done.  Instead, they’re checking their phone all day, shopping, or whispering on the phone.  Nothing wrong with any of this, it is just a matter of how much you do it.  After all, “all things are poisons, it is only the dose which makes a thing poison.”  (Paracelsus)

A friend of mine became inspired by such folks and decided to try that lifestyle out for himself.  He worked at a large company and figured that if he stopped working today–it would take the company a full two years to figure out he stopped working.

I thought he was crazy.  And he was.  But he did it, and it actually took some work to not work.  He showed up for work every day but did absolutely nothing for several years until, like clockwork, he was fired almost exactly two years later.

So, maybe I cannot tell you what that guy on the fifth floor does all day,  but I can tell you that our elected officials are busy making every crime far worse than it needs to be.  Our analysis below will examine a law that permits multiple DUI convictions for the same drunk driving episode.  Piling on more punishment doesn’t make our roads any safer, but that’s a story for another day.  Continue Reading

vid-e1568755194369-225x300The police have lots of power, but they cannot arrest anyone, for any reason–even though it may seem that way at times.  We’re going to take a dive today into the limits of police powers, and what’s written below may come as a shock to most of you.   Well, “shock” may be too strong of a word, but interesting is certainly an accurate description of today’s legal technicality.

If a police officer knows you’ve committed a misdemeanor crime, because maybe he’s watched video survaillance, or obtained eyewitness sworn statements, or whatever the case may be–may he then arrest you?

After all, he’s seen you commit a crime on video, or he’s interviewed the eyewitesses.  Good enough for an arrest, right?

Well, not necessarily.

Let’s dive into the real-life case of H.R. v. State, 2020 Fla.App.LEXIS 1734 (Fla. 3d DCA 2020).   H.R. was convicted of a misdemeanor criminal offense of falsely activating a fire alarm (Section 806.101, Florida Statutes).  The officer did not see H.R. pull the fire alarm, but he viewed a surveillance video that showed H.R. and another witness nearby the fire alarm, and the officer then obtained a sworn statement from the eyewitness who indicated that it was H.R. who pulled the alarm. Continue Reading