Make The Connection, Or Case Dismissed

conference-pic-e1526767430499-300x208Awww, come on guys, it’s so simple maybe you need a refresher course.  It’s all ball bearings nowadays.  Now you prepare that Fetzer valve with some 3-in-1 oil and some gauze pads, and I’m gonna need ’bout ten quarts of anti-freeze, preferably Prestone“.  — Fletch (film, Chevy Chase)

Have you ever met someone who thinks they know what they’re talking about, yet something in your gut (your BS detector) tells you they don’t really have it all figured out?

Scientists are notorious for this sort of thing.  They throw around a few equations, add a few big words, and we all assume they’ve figured something out.  Cops are as bad as scientists when it comes to acting like they’ve got it all figured out—but more on that later.

There are several scientific fields that can trigger a reasonable person’s BS detectors.  For example, evolutionary psychologists claim that people love golf because the open spaces make humans feel safe.  Hum.  People get paid to come up with this stuff?  How do I get in on this?

Neuroscience has jumped into the pure speculation game, as they now claim that everything is reducable to brain activity.  Hey, you fell in love and finally engaged in that special first kiss?  Well, it really isn’t that special, neurologists will tell you that they’ve found the “first kiss” neurons located in the bottom right corner of the frontal cortex.    Oh, you had a religious experience?  No you didn’t.  In the most condecending tone imaginable, some neurologist will pat you on the head like you’re their pet doggy, and explain that this life changing experience was just temporal lobe epilepsy.

But when you dig deeper into these so-called scientific explanations, they’re really not explanations at all.  They label things, sure enough, much like an engineer can label the data transmissions of your home modem.  But they’re not really telling you anything about what’s really happening.

Recently, I saw a neuroscientist “explain” how they’ve figured out what is going on during a psychedelic experience.  Psychedelic drug research is super interesting, and it utilizes drugs like psilocybin (mushrooms), MDMA (extasy), and DMT/Ayahuasca.

Anyway,  the “breakthrough” discovery is this: all of these drugs react on our brain’s 5-HT2B receptor.  Amazing, right?  That’s an impressive word, 5-HT2B receptor.

But there’s only one problem with this discovery.

Once a psychedelic drug hits the brain’s 5-HT2B receptor—we know absolutely nothing about what happens next.  It’s like some doctor “discovering” that once I drink some water that same water will eventually come out another orface.  Ok.  But what happens in between?  Does the water go to a kidney or two?  Is there any sort of processing?  The only thing we know about the brain’s reaction to psychedelics is that they hit the 5-HT2B receptor.  All knowledge ceases right there.

Still, its impressive to listen to neurologists toss around the term “5-HT2B receptor”.  Just saying this word increases your perceived IQ by several points, but fundamentally, this “discovery” sounds only slightly more credible than Fletch’s explanation of the Fetzer valve. 

Now, don’t get me wrong.  We’ve never let our lack of understanding stand in the way of progress.  We’ve sent people to the moon without knowing what gravity really is.   Fortunately, we know how gravity behaves and we understand  the effects of a gravitational force.  Psychedelics may turn out the same.  These drugs are curing alcoholism, depression, and anxiety.  Psychedelics may transform mental health care as we know it.  Still, we just don’t know what this drug is doing on any sort of fundamental level.

The fact is, science can get away with failing to make fundamental connections.  An anestiesologist can put you under for surgery, but the good doctor may not have a good understanding of what these drugs are actually doing to make you unconscious (nor can they even give you a good definition of consciousness).

When it comes to criminal accusations, we defense attorneys make sure the prosecutors have made every connection they’re required to make.

These connections are not so easy to come by.

Possession cases are a prime example of the need to make strong connections, otherwise the case cannot be proved.  Possession charges comes in many forms.  You may possess drugs, firearms, or child pornography–just to name a few.   Our real life case for today involves the possession of a firearm by a juvenile, but the law we’re going to discuss applies to the possession of any sort of contraband.

In D.V. v. State, a juvenile was convicted of being in possession of a firearm.  2018 Fla. App.. LEXIS 5989 (Fla. 3rd DCA 2018).  D.V. was chilling in the back seat of a nice four door Audi.  His two friends were up front.  For some unknown reason, the police pulled behind the parked Audi and approached on the driver side.

As the officer approached,  “she looked through the open car window and saw a gun on the back seat . . . located near to where D.V. was seated . . . the gun was approximately six or twelve inches from D.V.’s leg.” id. at 3.

We’ve been here before, haven’t we?   There are three people in a car.  Drugs or guns (often both, just saying) are found within inches of one of the passengers, and the person closest to the contraband gets convicted.

Is this legal?

The prosecutors convicted D.V. of being in possession of a firearm as a juvenile, and this possession was what we call “constructive.”  (if the gun was in his pocket, we would call the possession “actual”, and we wouldn’t be having this conversation).

We call it constructive possession because there are several people in the car who could have had access to the firearm, and when this happens, “the State is required to prove the defendant had (1) dominion and control over the contraband, as well as (2) knowledge that the contraband was within the defendant’s presence.” id.

Basically, the state has to connect someone to the contraband.  Just being near it isn’t enough.  How do you make that connection?

Oh.  There’s one more important requirement.  This little technicality gets more possession convictions overturned than any other little fact: “The State is required to prove control with independent proof.”  id.

What the heck is “independent proof?”

Let me tell you what it is not.  You cannot prove that D.V. possessed this gun just because he was the closest person to the gun.  Can’t do it.

Let me tell you what “independent proof of control” looks like.  If D.V. confessed something like “Yea, that’s my gun.”  Bam.  Guilty.  His confession would constitute independent proof that he had control of the gun.

Or, if someone else in the car testified that it was D.V.’s gun, again, that would constitute independent proof of control.  Guilty.

Or, even a little of D.V.’s DNA was found on the gun–that would be considered enough independent proof of control to convict him of possession (technically, there are ways around this, but that’s for another day).

Thankfully, the appeals court overturned D.V.’s conviction.  Here’s why:

The State provided evidence that there was a firearm found in the back seat of the Audi, that the Audi was jointly occupied, that D.V. was a mere visitor, and that the firearm was found near D.V. while he was seated in the backseat.  However, the State provided no proof that D.V. had any control over the firearm.  The detectives never saw D.V. move in any way, nor did they see D.V. reach for anything. . . D.V. was cooperative with the police. . .  He voluntarily provided his DNA sample for testing, but the State never introduced any DNA results at the hearing to connect D.V. to the firearm.  The firearm found on the back seat of the Audi was never tested for fingerprints.  As such, there was no fingerprints connecting D.V. to the firearm in question.  In addition, the State presented no evidence at the hearing regarding ownership of the Audi.” [emphasis added] 

The appeals court went on and on about how the State failed to connect D.V. to the firearm.   Basically, no connection, no conviction.