Can you “know” the truth by reading a few words?  think-300x224

Often, truth cannot be reduced to words, its just something you feel deep down (Are we talking about feelings already?  And you thought you were going to learn some legal stuff?  Patience, Dear Reader).

For example, I truly knew my beloved youngest brother.  And, I could write a book containing everything about him, all of our good times, his heart felt laughter, his date of birth.  This book could describe every moment we shared, but those words on a page will not, ever, adequately describe who he was.  What he meant to me.  Words just don’t cut it.

Without getting too fuzzy here (too late?), the good news is that the truth can be conveyed without words.  Maybe a kiss.  Maybe just the touch of a hand (Yes, I stole that from a song).   Think about spiritual practices, for example.  Many people have experienced profound truths that cannot be reduced to symbols on a page.  My pastor always says that you get things in church that you just don’t get anywhere else.

The same goes for music, it can deliver truth where mere words would fail.  Have you ever heard a song a thousand times, only to have it jump out and reveal a truth you hadn’t heard before?  My youngest brother, for example, was a big Grateful Dead fan.  Yes, concerts and everything (that’s what I mean by a “big” Grateful Dead fan, he followed them around).  I never got it.   Then, a few years ago, “Scarlet Begonias” came on the radio.  I’ve heard this song a thousand times.  I like Sublime’s cover better (blasphemy?), but I’ve listened to this Dead song for, like, thirty years.  The song came out in 1975.  In 2016 the lyrics just jumped out at me.  I got it.  After all these years.  Odd, right? Continue Reading

[Dear Reader, if you’re trying to seal a criminal traffic ticket like DUI, leaving the scene of an accident, IMG_4366-e1499627407392-225x300reckless driving, or driving while license suspended–this article doesn’t apply, we’re only talking about sealing non-criminal traffic tickets]

 

It’s official.

There is way too much personal information online.

So much so, in fact, that all this “freedom of information” and “transparency” simply makes it easier for criminals to steal your identity.  No, I’m not about to launch into a Life Lock commercial, it only sounds that way.   For example, there was a  large identity theft ring that stole millions by pulling personal info from traffic citations.

Here’s how it works (no, I’m not going to tell you how to steal). Continue Reading

grace-e1481650484902-300x225They say that if you can’t explain something to a sixth grader–you probably don’t understand it.   Unfortunately, some legal concepts don’t fit nicely into a tiny article like this.  Yes, I’m already making excuses, and we’re not even three lines into this.  More importantly, I’m warning you that this article tends to be a bit detailed (boring?).

So many “scoresheet” issues come up these days, I thought it would be nice to start delving into them.  This article may sound a bit like an episode of Inside Baseball, but for those poor folks who find themselves facing possible prison time on a felony–I hope this article provides you some insights and comfort.

We defense attorneys constantly complain about the minimum mandatory sentences imposed by our legislature.  Sentencing is supposed to be the job of the judge.  Mandatory sentences unfairly tie the hands of our judges, who are forced to give some poor soul 15 years mandatory prison for $95 in oxycodone pills because the legislature has said so, when a bit of drug treatment would have made the world a better place.  Today’s case presents the opposite situation, in which the legislature has tied the hands of the judge by preventing a prison sentence.   Continue Reading

logic-300x218For those of you no longer in school, isn’t it great that we don’t have a test today, or tomorrow?  Have you noticed that kids these days are taking way too many tests?  Two things seem obvious: 1) everybody agrees there’s too much testing, and 2) no one is doing anything about it.  I would add a third point here, which is the fact that kids don’t learn anything from all this testing.  In other words, if you compare students who have taken lots of tests to students who have taken only a few–the kids who had less testing are better off.  In law school, we had one exam at the end of each semester.  No quizzes.  No midterms.  One final exam, that’s it.

There are a few countries out there that, supposedly, have the whole “education thing” figured out.  Take Finland, for example (teachers love Finland, right?).  Kids in Finland spend very little time in school, and very little time on standardized tests.  But, these kids consistently score top marks worldwide (typically battling for the top spot with Singapore).  So, how many standardized tests must Finish kids take per year?  None.  Not one standardized test in elementary school.  Not one standardized test in middle school.  Finland kids take one standardized test in their final year of high school.   That’s it.  I know what you’re thinking: how will we know Little Johnny is doing ok?

Now, before you decide to overhaul our entire American school system, it bears mentioning that Finland has a population of 5 million.  We have 326 million people.  And, there are pockets of the United States that score higher than Finland, so should Finland adopt the educational system of those parts of our country which score hire than theirs?  Where does this comparison game end?

I remember a test in middle school that, basically, was designed to see if we kids could follow instructions.  Here’s the basic format:

Teacher: “Alright class, take out your pencils.  Read all the instructions before writing down your answers.”

Test: “1. What is 12 times 14?   2.  What is the capital of Texas?  3.  What is your principal’s name?  . . . 20.  Don’t write any of your answers on this sheet.”

Yes, this is a sneaky test, and the teacher paces the classroom with a big smirk as the  kids frantically write down their answers.  Eventually, I caught on to this trickery.  I would lock eyes with the teacher as if to say “I can follow instructions, I’m with you, look at my idiot classmates not following instructions….”   [legal segue coming up] This same sort of failure to understand the “meaning of words” is why we’ll be examining a violation of probation case today.  We have a probation officer, a prosecutor, and a judge–none of whom can follow fairly simple instructions.  Shocking, I know.  Fuentes v. State, 2017 Fla. App. LEXIS 7801 (Fla. 3rd DCA 2017).   Continue Reading

st-louis-airport-300x225I was going to title this article “How Target Knows You’re Pregnant Before You Do”, but my mom mentioned to me that my titles never truly match what the heck I’m talking about.  This article is going to be a rare exception to that rule.  Thanks Momma.

The predictive power of computers–once they have enough data–is fascinating.  My preoccupation with data began when I learned that supermarkets were getting in trouble for  sending out ‘suggestive’ coupons after crunching a customer’s shopping habit data.   The prime example of this, I believe, was Target.  Target was sending women coupons for baby stuff before these women knew they were pregnant!  Imagine the father of a high school daughter getting maternity clothing coupons in the mail?  [for a great article on this, check out How Target Figured Out A Teen Girl Was Pregnant Before Her Father Did, Kashmir Hill, Forbes, Feb 16, 2012].   Similar problems are created at home when criminal defense attorneys start sending “Arrested? Hire Me” letters to that same daughter–somebody’s going to start asking questions.  Sure, kids think that they can hide their shenanigans by intercepting the mail before Mom & Dad get home, but “kids helping out” can be even more suspicious than overly suggestive attorney solicitations.

Anyway.  How does Target know a woman is pregnant?  Well, we humans are rather predictable.  No, I’m not talking about you, dearest reader–you are unique, different, and “nobody understands you.”   Target’s computers were able to anticipate the shopping needs of women based upon changes in their shopping history.  Once a computer knows you’re buying luggage, you’ll be buying “travel size” deodorant and toothpaste at any moment.  Same goes for pregnant women.  The data points were, apparently, more sophisticated than the old myths regarding pickles & ice cream.  It was important that Target figure out when a woman was pregnant before it is made public, because, “birth records are usually public, the moment a couple have a new baby, they are almost instantaneously barraged with offers and incentives and advertisements from all sorts of companies.  Which means that the key is to reach them earlier, before any other retailers know a baby is on the way.” [from an excellent article entitled “How Companies Learn Your Secrets“, by Charles Duhigg, New York Times, Feb 16, 2012]  Duhigg’s NYT article provides some clues on how this works, noting that: “One Target employee I spoke to provided a hypothetical example.  Take a fictional Target shopper named Jenny Ward, who is 23, lives in Atlanta and in March bought cocoa-butter lotion, a purse large enough to double as a diaper bag, zinc and magnesium supplements and a bright blue rug.  There’s say, an 87 percent chance that she’s pregnant and that her delivery date is sometime in late August.”  Continue Reading

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Some folks would say that successful negotiations involve “getting to YES.”  I disagree, because too many people say “yes” but don’t really mean it.  We’ve all encountered that dinner time telemarketer that says “You want to stop the suffering of abused children, don’t you?”  Yes.  Of course I do.  But, my “yes” doesn’t mean I’m going to open my wallet.  I’m saying “yes” to get them off the phone.

A better strategy is to get people saying “no” early, because “no” is a far more comfortable word.  An entire book has been written about the nuances of yes vs. no, (and its a great book), called  “Never Split the Difference,” by Chris Voss & Tahl Raz.  Their book explains negotiating techniques that request ‘no’ responses, rather than ‘yes’ responses.   Negotiation techniques can play into every aspect of life (obvious, I know, you’re really learning something today).  One example found in the book involves fundraising, and how the standard phone scripts for these campaigns can raise more money–depending upon whether the scripts are rigged for ‘yes’ responses versus ‘no’ responses.   Yes, these telemarketers are just reading stuff from their computer screen, written by so-called negotiation experts.  Studies have shown, believe it or not, that scripts which prompt a ‘no’ response yield far greater donations.  An example from the book goes something like this:

Fund-Raiser: Do you think we need change a change in the White House this November?”  Response: “Yes, I do.”  “Fund-Raiser: Can you give me your credit card number so you can be part of that change?” (example of a “yes” based script)

Fund-Raiser: Are you going to sit and watch them take the White House in November?”  Response: “No, I’m not.”  “Fund-Raiser: If you want to do something today to make sure that doesn’t happen, can you give to our committee to fight for you?” (example of a “no” based script)

As a side note, and barely related to the “Yes & No” mentioned above, I should tell you about how Derek Sivers feels about saying “Yes” to anything.  (Isn’t this our second side note?  When are we going to read about driving on a suspended license?)  Derek recommends never saying yes to anything.  Never.  If you’re going to say yes, it had better be a “HELL YES!!”.  The original version of this decision making model involves a more vulgar F-word–but the point is–you should be saying “No” most of the time, unless you’re really enthused.  I find this advice great for a guy like me, whose done criminal defense for 24 years (oh, my web people love these types of sentences).  But, when I was just starting my career, I said “yes” to many things, just to get my feet wet.  Now that I’m a bit older, I admit that there’s a certain power to saying “no”.  Fortunately, I am in a position to say “no” frequently.  Anyway. Continue Reading

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