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

theft-300x225Think back to middle school or high school for a moment.

Remember that sinking feeling when you’d get called to the principal’s office?  Even the vice-principals office would give you that same feeling, right?

Ok, so this only happened to me.

If school administration never needed to pull you out of class, good for you, but I’m sure you’ve had other “uncomfortable talks.” How about those times when your significant other mentions five vague words like: “Honey, we need to talk.”  Hum, what could that be about?  I’ve done nothing wrong.

A serious talk with a doctor can change your whole outlook on life.  As I sit here typing this on a Monday afternoon, my week doesn’t seem that valuable.  Yes, I take things for granted I suppose.  But, my tune would change if a doctor told me that I only have another week to live.  How much would I pay just to have another day?  Just to have another week?  Every day would be priceless at that point.  (some folks visualize the worst possible thing every morning, wife and kids dying, what-have-you, in order to set up gratitude to last the rest of the day.  I can’t stomach that.)

Talking with the police can land you in a similar spot.  Say the wrong thing, and you may be spending the rest of your life behind bars.  Fortunately for some, DNA testing has set free hundreds of people who have spent decades in prison–and these folks had confessed to their crime.

Yes, detectives are professional interrogators.  Just like a magician can make things disappear, detectives can make people say things that aren’t true.  False confessions occur for any number of reasons, and the phenomenon is scary.   But there is something you can do. Continue Reading

weed-300x199We have science to thank for much of our progress in the last thousand years.  Any guess as to what is the most important technology ever invented?  The wheel?  The printing press?

Hands down, whoever invented fire technology may have advanced human civilization more than any other tech, and we’ll probably never know which caveman or cavewoman came up with that brilliant idea.  You need not watch Naked and Afraid to know that fire is everything.

But, technology has created its share of problems.  Are we watching too much TV?  Are kids interacting too much with tech, rather than actual human beings?   Do people have fewer human friends now, versus decades ago, all due to technological “advances”?

What we do know is that technology is now creating a problem for prosecutors.  Here’s the evolution of this problem.

The first problem is, July 1st, 2019 marked the day that hemp became legal in Florida.

The second problem is, hemp is the same plant as marijuana.  They are both cannabis plants, but hemp contains less THC (tetrahydrocannabinol, the stuff that gets you high).  As such, the police cannot determine whether a citizen is possessing legal hemp or illegal marijuana.  After all, hemp smells the same and burns the same and looks the same as illegal marijuana.

Yes, we may be seeing far fewer possession of cannabis arrests.

Let’s get back to science for a moment, so we can understand the problem with all of this.  Scientists can send people to the moon, but they have a tough time telling the difference between hemp and marijuana.  Notice I said “scientists.”  Not police.  Not prosecutors.  Not judges.

Prosecutors rely on the laboratories at the Florida Department of Law Enforcement (FDLE) to convict folks of drug crimes by having a “scientist” testify from FDLE (yes, I’m using air quotes).  The measurement devices currently used by FDLE to test for the presence of THC are gas chromatographs (GC) and mass spectrometers (MS). The problem is, these laboratories do not have the instruments necessary to tell the difference between a legal substance–hemp, and an illegal substance–marijuana.

Continue Reading

baggies-cu-e1563998786979-225x300I went to public schools through the eighth grade, but for high school, my parents sent me kicking and screaming to an all-boys Jesuit (Catholic) High School.  I grew to love the place, but leaving my old friends was tough (I’m pretty sure that’s what my parents had in mind.  It worked, by the way).

So, one cool thing about going to a school run by priests and nuns is that you get to know a few priests and nuns.  They’re interesting people.

This one particular nun really enjoy teaching testosterone-filled young men (redundant, as I suppose all high schools are chuck full ‘o hormones).   Prior to arriving at my school, she had been locked away in a monastery for the last decade.  No communication with the outside world.  No newspaper.  No phone.  No television.  no radio.  No nothing, other than the other nuns, of course.

The sequestered way of life seemed insane to me because in my youth, I was so wrapped up in the news cycle and current events  that I couldn’t imagine spending a decade without the news.  News is “important,” right?

I asked her once, “what if something important happened, how would you know?”

She said that “if anything important happened, someone in the town would walk up the hill, knock on the door, and explain what was going on.  And, that never happened.”

Basically, this nun survived a decade without one bit of news.  Not one TV show.  Nothing. How could she NOT know “what’s going on?”

Well, I now understand where this nun was coming from because I also no longer watch the news (as best I’m able).  It’s taken me over 30 years to get there, but I’ve arrived.  No, I’m not being some smug elitist that “only reads books”, I’m just saying that for me personally, the news cycle is not uplifting.  I’m happier without it.

Now for the hypocrisy, of sorts.  It brings me great joy to bring you some happy news. Continue Reading

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