car-crash-300x225There’s an old saying that you never really learn to swear until you learn to drive.

Today, we’re going to discuss bad driving.  Yes, all of you “readers” are perfect drivers, I’m not talking about you.  Its everyone else I’m concerned about (kinda sounds like the school principals that assure the parents all of their kids are above average…).  After witnessing some horrible driving, it is sometimes the job of our court system to decide who should be found guilty of a simple citation called “careless driving”, and who has committed a criminal offense known as “reckless driving”.  A careless driving citation gets you a ticket & fine–but reckless driving often involves handcuffs, an arrest, and a trip to the jail house.

In the recent case of Smith v. State, an appellate court wrestled with this very issue. 2017 Fla. App. LEXIS 6531 (Fla. 2nd DCA 2017).  Smith was driving one evening before sundown, in clear weather conditions.  He was not speeding, and his headlights were on.  Suddenly, he lost control of car by swerving to his right, onto the sidewalk, eventually hitting a bicyclist.  Unfortunately, this accident caused serious bodily injury to the bicyclist.   Continue Reading

surveillance-cam-225x300Not all cops are created equal.  I have a friend, who’s a cop (hard to believe, I know), and he rarely arrests folks on drug charges.  His form of justice involves escorting the citizen to the nearest toilet and flushing the drugs into our water system. Mercy is out there, believe it or not.  But, if you’re reading this, my guess is that you weren’t so lucky.

Now, not everyone involved in law enforcement has as much mercy as my cop friend.  Loss prevention officers, for example, seem to have the least mercy in their souls of anyone in law enforcement (yes, I’m assuming things like “mercy” and “souls” actually exist, a philosophical debate for another day–but such a debate will be over the strenuous objection of my web people, who complain that I get off the legal track too easily, and thus make their optimization efforts more difficult. Oh well).

Why are loss prevention officers so eager to stick it to shoplifters? . First, Dr. Phil would probably say that loss prevention folks somehow missed their calling as true blue police officers.  In other words, they have a chip on their shoulders.  Now, a chip on your shoulder can be a good thing, look at that quarterback that was drafted #199 in the sixth round back in 2000–he’s doing ok (I’m not a Patriots fan, but you have to love a sixth round pick beating the crap out of the 198 players picked above him.  Anybody who’s had that awkward feeling of being picked next to last in gym class knows what I’m talking about).   For whatever reason, shoplifting patrol people decided that the 12 weeks of police academy was just too academically rigorous, and this tends to make them a bit more harsh than the legitimate police officers they call once they’ve caught a shoplifter.  Case in point: I had a client who was detained for shoplifting, and she really really needed to use the restroom.  She begged loss prevention for a bathroom break, but this only made loss prevention delay further–to the point where she urinated all over herself.  Loss prevention laughed about it, and invited comrades into the back room for an extended gawking session.  Talk about wanting to die!  As a defense attorney, you need only see this sort of thing a few times to start questioning what went wrong. Continue Reading

(I know, the title of this article couldn’t be more exciting, sorry, my creative title juices are not flowing at the moment.)IMG_1057-e1493239002680-225x300

How hard is it to prove a negative?  Urban myth claims that “you can’t prove a negative”.  Take the rather cliched statement notion that we can never prove that “God does not exist”–because we can’t prove a negative.  This is intellectually lazy nonsense, as there are good arguments both for, and against, a Creator.  That being said, the word “God” creates friction between myself and my web optimizer people, as they deem such discussions “difficult to optimize for search engines.”  Hum, what do these SEO people do, anyway?  Ok, I’ll stop.

Still, it’s easy to prove a negative.  Take the following statement: No Ferrari’s exist in John’s garage. Can we prove this negative?  Sure.  Open my garage door, and bam, there’s no Ferrari (most statements can be transformed into a negative). Speaking of cars, I would like an Italian sports car–of any ilk–even an Alfa Romeo (basically, some of the least expensive Italian cars out there).  [So, if you’re really interested as to why you can prove negatives, and I bet none of you are, but just in case, check out Steven D. Hales article “Thinking Tools: You Can Prove a Negative”].

Many violations of probation involve proving a negative.  Let’s delve into why probation fails on such issues. Continue Reading

drugs-various-300x225A couple of articles back, I ranted about cops trumping up charges.  Yes, my outrage can get boring at times, as it seems everyone is outraged over something.  That being said, getting pissed off about something is a fine cure for writers block.  And, in my defense, at least I’m able to give very specific examples of why you taxpayers should be concerned about how the criminal justice system is wasting your hard earned cash.

Before we jump into the case of the day, a bit of background may be helpful. We charge people for possessing drugs, not using drugs.  If a cop finds someone high on cocaine in a night club–they cannot charge them with possession of the cocaine they consumed in order to get high.  Being “high” on drugs is not a crime.  Possessing those drugs is a crime.

In some cases, the line between using a drug and possessing the drug becomes blurred.  This is especially true in drug paraphernalia cases (drug paraphernalia is any “thing” used to ingest or store a drug, like a bong or a heroin needle, etc.).  In Holloman v. State, the defendant was convicted of possession of cocaine, and he didn’t even know he had any cocaine on him.  2017 Fla. App. LEXIS 2061 (Fla. 4th DCA 2017).  Holloman was arrested with a brass fitting in his pocket, and this brass fitting had a copper mesh that facilitated the smoking of cocaine.  It was a pipe, of sorts. Continue Reading

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 (and, this is why Tim Ferriss recommends we practice poverty).   No matter how rich you are, resist the temptation to compare yourself to others.  A recent example of how this can go wrong is German billionaire Adolf Merckle.  As the tag “billionaire” suggests, he was the richest man in Germany.  Then, his company took a hit in the stock market, and his fortunes declined $4,000,000,000.   This four billion dollar loss dropped him to the third richest man in Germany.  Due to this fact, Merclke committed suicide.  Now, he still had over 8 billion dollars after this loss, but compared to his rich friends, he was no longer number one.  He was number three, and he couldn’t bear the thought of it.

Would Merckle’s life been any different having 8 billion vs. 12 billion?  Well, 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.   When someone  is violated late in their probationary term, we must pay very close attention to probation’s “termination date”, because the violation must be addressed before the termination date.   For example, say you’re put on two years of probation, beginning March 28, 2015.  My math isn’t perfect, but roughly speaking, this two year probationary term ends 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?  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