Articles Posted in Legal Issues

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

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

Truth is a funny thing.IMG_5029-e1529527687928-300x73

Everyone thinks they’ve got it.

Scientists think they have it.  Every religion thinks they have it.   And, its a tad curious how psychedelic drugs cause their users to preach of new truths and perspectives.

For a hard core materialist, it won’t matter how believable an “experience” may be–its not real unless it can be scientifically verified.  (Side Note: there’s some really odd complaints these days about the fact that falsification of a scientific theory isn’t as important as it used to be–but this is a story for another day)

Anyway, speaking of materialism, love is tough to prove.  Even pain is tough to prove, doctors have to take your word for it.  For some, it may be that mathematics contains more truth than the probabilistic sciences can deliver (for you statistics fans, isn’t it true that all of science can be reduced to probabilities?).

So, if there is such a thing as “truth” floating around out there, what are some reliable ways to find it?

In our court system, the jury decides what is true.  We call them the “finders of fact”.  We attorneys obtain a Juris Doctorate degree just to better navigate the filtration of what the jury can–or cannot–hear.   the rule against presenting hearsay testimony, for example, keep rumors out of our quest for truth.

Florida’s criminal laws have lots of rules regarding confessions.  Again, if we’re on a quest to discover the truth, what’s better than a confession, right?  Well, it depends.  If the confession comes after spending 10 hours with a few cops, can you really trust that confession?   Our Supreme Court started laying down confession rules many years ago in  Spano v. New York.  360 U.S. 315 (1959).   Spano was suspected of murder but the cops couldn’t get him to talk, so they rounded up a close childhood friend, who then manipulated him into confessing.    Yes, his confession was thrown out of court.

Surely, that sort of thing doesn’t happen today, does it? Continue Reading

IMG_4236-e1530542832691-225x300We Americans can be a rebellious group.

I’ll go out on a limb here and claim that we’re more rambunctious than most countries.  To prove my point, take the following example.

Think back to the 1970’s.  The whole world is converting to the metric system.  Two north american governments decide to make a big change.    You know, Kilometers instead of Miles.  The whole nine yards.    Canada and the United States agree that its time for North America to catch up with the rest of the world, so both countries pass a law making the metric system “official”.

Now, if you travel to Canada, their signs will say “Ontario — 10 Kilometers”.

If you travel here in the US, you’ll see “Miami — 10 Miles”.

Both countries passed the law.  Both countries agreed to convert.  Why did Canadians follow their law, and we ignored it?

Because, we’re Americans.  We don’t like being told by some Supreme Authority how to measure things.  We don’t like being told what to do.  And this brings me to the topic of the day.

When a letter comes in the mail telling you to show up for court, must we citizens drop everything, fly back into town from our vacation,  and appear in court?  All because a piece of paper lands in our mailbox?

More importantly, what happens if you don’t show up to court?

Continue Reading

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.  Continue Reading

IMG_4420-300x225I belong to a nice health club.  Just by looking at me, you wouldn’t get the impression that I actually work out, but I’m a member.  I’ve got that going for me.  It does make me feel better to buy memberships and healthy things.

Have you ever seen that guy that’s always working out, yet never seems to make any progress?  That’s me.  As an “in shape” friend once told me–you can’t outrun your mouth.

Anyway, back to the gym.  Inside the men’s locker room we have a hot tub, a cold plunge, a steam room, a sauna, and tons of showers.  All of which is just to say that we need lots of towels.  The problem is, some guys don’t pick up after themselves.  Dirty towels everywhere.  Shocking, I know.

Now, there are some really great guys working in men’s locker room, making sure the place is clean and bringing us a constant supply of fresh towels.  These workers are the nicest folks you’ll ever meet, and they work for peanuts.  The least we could do for these guys is pick up after ourselves.  Its common decency, really.

On one recent occasion (which is why I’m writing about this), a fellow gym member must have had five towels on the floor.  He then packed up his things to leave, making no attempt to pick up after himself.  Another member gently mentioned to him that the towel deposit bins are just a few feet from where he was standing.  As you might expect, the towel offender was having none of that, snapping back “I pay enough dues every month, and that’s not my job.”

Actually, our health club requires members to pick up after themselves.  That is a member’s only job outside of paying the monthly dues.

At some point, we have all worked with someone who simply will not do their job.  Sure, they show up to work.  Sure, they answer their phone.  To an outsider, nothing looks amiss.  But everyone working with them–the people who know exactly what they should be doing–we know that they’re not really doing their job.

Speaking of people not doing their job, what defense attorney rant would be complete without mentioning judges? Continue Reading

Have you been to Key West?IMG_44731-e1503938818653-300x188

At times, I’ve found this place to be magical.  Other times, its just another crowded, over priced tourist trap.  Back in the 1990’s, I was in Key West and had the opportunity to meet Mel Fisher.  He was just sitting there, drinking at Rick’s off Duval St.  Within minutes, my (now ex) wife was buying treasure jewelry.  What is treasure jewelry, you ask?

Mel Fisher was a treasure hunter in Key West.  He was ridiculed by most folks because he came up empty handed for 16 years.  Maybe “treasure hunting” was just an excuse to get out on the ocean every day with investor money, right?  Every day for 16 years, he told his crew “Today’s the Day!!”.

Once you’ve failed to find treasure after five solid years of combing the ocean, isn’t it time to give up?  What about the eighth year?  The eleventh year can’t be an easy sell, can it?  Surely after fifteen years of searching, who’s going to believe you know what the heck you’re doing.

In year 16, Mel Fisher struck gold, $400,000,000 worth.  Mel’s tenacity is the stuff of legends.  Truly inspirational.

Now, some of the stuff Mel dredged up wasn’t worth much, but they are artifacts of sorts, so folks transform these items into what is known as treasure jewelry.  Basically, all the worthless little coins are transformed into earrings, or necklaces.  You’re not buying gold, per se, you’re buying the story.  And, its an expensive story.

In Seth Godin’s excellent book “All Marketers Are Liars”, there’s a story of how home stereo speakers were sold to Harvard students each year.   When the college dorms are teeming with life, a crappy van pulls up to the dorms.  The back door of this “shady” van opens wide to reveal speakers packed in like sardines.   These “smart” college kids were told a story about how these speakers just, somehow, fell off the back of a truck–so they were quite a bargain.

Sure, the shady van folks implied that the speakers were stolen.  And yes, these speakers sold like hot cakes.

Actually, the speakers were not stolen–they were clearance items bought from big box stores.  Actually, these smart kids paid more for these speakers out of the back of a van, than they would have paid down the street at Best Buy.  Why did they pay more?  Because, they bought the story.

The legal lesson for today involves telling the right story.   Today, we’re going to review what happens when you tell a judge the wrong story.  The case for today involves the prosecution asking for a continuance because their star witness has a pre-paid vacation lined up to watch the solar eclipse.  Now, I never would have told a judge this story–but to each their own.

Do you think a judge will grant a continuance so that someone can go watch the solar eclipse?

Do you think any judge, ever, has quoted a Carly Simon song?

Here’s Judge Steven Merryday’s response.  Enjoy. Continue Reading

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

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

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