Articles Posted in Legal Issues

Dear Readers, IMG_3197[1]

Have any of you visited a career counselor?  These folks take a look at your personality via long questionnaires, and make career recommendations based upon the results.  Let’s say you have no personality and don’t like people–you could become a doctor.  I’ve encountered several with rather poor bedside manners.  I’ve had friends whose fantasy career path involves gynecology, and these guys are the very folks you do not want to see on the other end of those stirrups.  (I know what you’re thinking, a few worn out cliches this early in the article?  Sorry)

I’m pretending to not enjoy bawdy humor because that’s the classy thing to do, but really, Eddie Murphy’s Delirious and RAW are timeless classics, and you can throw early Chris Rock into this mix as well.   Unfortunately, my “guy friends” have worn out one liners like “That’s What She Said”.  Who could possibly be more annoying than that friend who adds “In Bed” to everything you say?  The friend who knows everything.  Like a politician who can solve every problem facing humanity, I’m annoyed by people who think they’ve got it all figured out.  I’m not just annoyed, I find it boring, and boring is worse than annoying.  For those of you who have it all figured out–where’s your sense of adventure?   What’s worse than someone who has it all figured out?  Someone whose body language exudes such.  Often, knowing it all radiates a certain condescension, the likes of which you only see when male models flare their nostrils as they strike a pose.

Anyway, my career advice to those of you who know it all and have it all figured out  — DON’T BECOME A JUDGE.   Continue Reading

“Comparison is the death of joy.”  – Mark Twainscoresheet

Our brains are constantly sizing up other people, and it should come as no surprise that there is always someone with less body fat and a bigger bank account.  Comparison can be a bad habit, yet every party has at least one “one upper”, someone who has always been to a better restaurant, a better beach, or went to a better school than you did. [for the ultimate one upper story, see comedian Brian Regan, last 3 minutes of “I Walked On The Moon”]

Comparison is a big problem in criminal defense, even though it provides plenty of referrals.  For example, I had several 25 year minimum mandatory prison sentences dismissed for a client and as such, every referral from this old client starts like this: “Guidry, you got my friend’s 25 year mandatory prison case dismissed, and my case isn’t that serious, so you can do the same for me, right?”   Yes, I’m bragging about a serious case result, and yet, providing a helpful example.  Cocky, yet informative.

Every criminal defense attorney has negotiated a “deal of the century” that was, subsequently, not appreciated by the client.  Here’s my paraphrasing: “ATTORNEY: Great news, they’re going to drop all charges, the cops will write you a letter of apology, and you’re getting two free tickets to Sea World.  CLIENT: What? Sea World? I want Disney tickets or there’s no deal.  My bunk mate’s attorney got his whole family Annual Passes to Disney.  You’re not as good of an attorney as my bunk mate, are you?”

There is sentencing inconsistency in Florida, the statistics bear this out (what statistics you ask?  Just a few more paragraphs to go, then I’ll show you).  A case that is serious in Orange County may not be that big of a deal in Osceola County, or Seminole County (my SEO people love it when I mention my practice counties by name, so yes, I practice primarily in Orange, Seminole, and Osceola, just saying).  Some counties are known for their outrageous sentences, and that’s sad (Marion County comes to mind, and I think they’re proud of this fact).   But, such disparity raises an interesting question: Is it possible that a long sentence can violate the Constitution as being cruel, even if it is legal?   The Eighth Amendment to the Constitution bans cruel and unusual punishment.   Can a sentence fall so far outside the range of typical sentences that it becomes cruel?  These issues are addressed in the recent case of Alfonso-Roche v. State, 2016 Fla. App. LEXIS 8352 (4th DCA 2016, 4D13-3689). Continue Reading

Professional athletes are always trying to optimize their performance.  That’s their job.  Training helps performance.  Diet helps performance.  Meditation helps performance.  And, drugs help avoid potholesperformance.  For every honest athlete, there’s a Lance Armstrong just waiting to be caught doping.  Yes, how we love to see them rise, just to see them fall.

The simple fact is, some drugs enhance performance, so there will always be someone out there trying to gain an edge. We all know how poorly we behave when drinking, and that’s why there are laws against driving under the influence of this drug.  But, Florida driving under the influence laws have deemed several other drugs detrimental to our driving abilities, contrary to scientific studies.   For example, some athletes claim that a little bit of weed before a game enhances their performance.  My guess is that half the NBA and/or NFL players have marijuana in their system.  Well, maybe half is an understatement, but you get my drift (do we still say drift? I do, I’m white and in my late 40’s).  Almost every professional sport I can think of demands more than driving, so if athletes can enhance their performance–or, at least not diminish it–with marijuana, why should it be illegal to drive under the influence of weed?

You’ve heard my weed vs. alcohol rant before, so I’ll spare you a 1,000 words here, but suffice it to say that the vast majority of domestic violence battery cases involve alcohol.  The vast majority of bar violence, resisting officers, and overall disorderly conduct arrests come from alcohol–not marijuana.  The vast majority of DUI cases come from alcohol, not marijuana.  The vast majority of DUI manslaughter cases come from alcohol, not marijuana.  Rarely do we hear of a wife calling 911 regarding her violent husband after they both smoked some weed.  Not gonna happen.  Now, I’ve used the vague term “vast majority” several times, but are there statistics to back up these assertions?   Continue Reading

I can’t tell you how many times I’ve been to the jail in my 23 years of defending criminal cases.  Let’s just say plenty.  But, I don’t know what it’s like to spend time behind bars, as I’m only andoggy in jail “official visitor”.  Lucky for you, a dear friend of mine had the misfortune of being arrested.  He was my neighbor, he was a doctor, and he is a good friend of mine to this day.  Unfortunately, he was recently sentenced to ten years prison.

Now, my buddy has a few things to say about his stay at the Orange County Jail, before he was shipped off to prison.  I’m going to share these things with you, in no particular order, so that you or a loved one may have some idea as to what to expect behind bars.  My friend spent six months in the Orange County Jail, and much of his wisdom can be reduced to one cliched word, “respect”.  Now, this is not the slang term that passes for a greeting, but means virtually nothing.  No, respect is Jail Etiquette 101.

The best way to survive a county jail term is to respect your fellow inmates, and respect the corrections officers.  However, my friend is not suggesting that you wimp out at every confrontation.  There must be a balance between standing up for one’s self when facing a confrontation with another inmate, and respecting all those around you.  How do you walk this fine line?  I have no idea, I’m just telling you what he told me.  My doctor friend turned inmate is slightly over 60 years of age, so he benefited from the age discrimination rules the county jail employs.  The Orange County Jail’s violation code renders punishment to the younger inmate automatically, when the “senior” inmate is over the age of 59.  Punishment for fighting and shenanigans varies, but both fighters are likely to end up in the “Box” or “Shoe” for 30 days.  While in the box, there’s no recreation time, and no commissary.

For those folks in the general population at the county jail, an inmate will carry his blanket, sheet (and pillow if available) and a basic care kit.  The basic care kit is given to you at the Booking and Release Center, or the general population cell, and it consists of white boxers, a toothbrush, toothpaste, soap, socks, and a comb.  Every inmate gets a one piece uniform known as the “blues”, and these are changed twice a week.  Linens like your sheet, pillow case are changed once a week, with the blanket changed every six months.  Continue Reading

perscription pill bottleI have a few statistical facts for you, and I’m using the term “statistical” and “facts” rather loosely.

Four out of every five citizens who are arrested for drug trafficking are victims of entrapment.  Technically, five out of every five citizens arrested for drug trafficking believe they are victims of entrapment, but we’re not concerned with beliefs here, only the facts.  Entrapment can be difficult to prove, because most judges and prosecutors won’t admit their beloved agents could ever permit an informant to manufacture a crime, rather than detect a crime.  Well, I hate to break it to you, but it happens all the time.   To understand why entrapment is prevalent in Florida, it’s important to understand how the game is played.  Most entrapment cases involve confidential informants attempting to wiggle their way out of a serious charge, so that’s our focus.

The game begins when someone is arrested  on a trafficking charge involving mandatory prison time (often a mandatory minimum of 25 years in prison—about 12 years more than the average child rapist receives).   The defendant who decides to become a snitch is usually a first offender, desperate not to spend the best years of his life behind bars.  Let’s face it, this kind of time hanging over your head would cause most folks to do things they would otherwise be incapable of doing.  So, with no law enforcement training, only a desire to “do anything to avoid going to prison”, law enforcement unleashes their untrained informants into Florida’s streets.   These defendants/informants are now charged with a task that is typically reserved for “highly” trained undercover officers—set up drug deals.  Not just any drug deal.  Big drug deals.  Yes, “big” can mean “dangerous”, a story for another day.  The technical term for this untrained undercover work is “substantial assistance”.

An entire book could be written about substantial assistance deals, but who has the time for that?  Here’s the three sentence version.  A substantial assistance deal is a plea agreement with extra clauses providing the defendant with guaranteed “credit” against his minimum mandatory sentence for every arrest he manufactures.  For example, if a defendant is facing a 25 year minimum mandatory for trafficking in oxycodone, the defendant may receive 5 years off of that sentence for every 25 year minimum mandatory arrest he manufactures.  If the set up isn’t a big enough deal, the credit may only be for 3 years off, or 2 years off, and so forth, and so on.  Yes, there are problems determining how much credit is due.  For example, if a defendant’s efforts lead to the arrest of eight people—shouldn’t the defendant be given credit for all eight arrests?   Continue Reading

Science never seems to prove as much as prosecutors claim.  Case in point: fingerprints.  Yes, prosecutors make some pretty ridiculous plea offers when they have incriminating fingerprints.  They get that gleam in their eye, like “Guidry, you can’t get your client out of this one–I have fingerprints!!”   Oh boy, I’ve never seen such a solid case.  Wow, my client must really be guilty this time, right?  Wrong.

What does it mean to say “the defendant’s fingerprints match those found at the crime scene?” Let me tell you what it’s not.  When law enforcement fingerprintstestifies that a crime scene fingerprint “matches” the defendant’s fingerprint, they’re not saying that these two fingerprints are identical.  Sure, it sounds that way, but even with two prints “matching”, the crime scene fingerprint could belong to someone else.  Why, you ask?  Because fingerprint analysis is not an exact science, it’s just a probability claim.   Sure, all of science can be reduced to probabilities, but that’s a philosophical discussion for another day.   Continue Reading

Our government is supposed to be transparent.  We have the federal Freedom of Information Act, and in Florida, we have Sunshine Laws.  These laws provide citizens the ability to force ouroxy government to hand over information that they may not, otherwise, publish.  If it wasn’t for FOIA requests, our world would have far fewer UFO and conspiracy books.  Jesse Ventura wrote an entire book analyzing FOIA documents, and given our government’s shady ways, we should expect even more tantalizing documents in the years to come.

Unfortunately, freedom of information is nonexistent in the criminal courtroom.  Florida juries are not permitted to know the most basic truth of a case—the potential sentence.  Kind of crazy, right?  Citizens are not allowed to know the sentence that will result from their verdict out of fear that such information would sway the jury’s conscience toward not guilty (God forbid a jury with a conscience!).  Such fears say a lot about how harsh our criminal justice system has become.

Knowledge is power.  A fully informed citizenry, typically, provides insurance against the tyranny of outrageous government legislation.  Juries should know that a $300 purchase of oxycodone pills can lead to a 25 year minimum mandatory sentence.  Yes, as little as $300.  No, juries don’t know this, even when they’re the ones about to impose the 25 year sentence.  Sadly, a minimum mandatory prison sentence for a $300 drug deal is common place in Florida.  Most citizens mistakenly believe that 25 years of mandatory prison are reserved for the likes of a Pablo Escobar (any Narcos fans out there?  Great Netflix series, I recommend it).  Even child molesters fair better, on average, than folks who possess minimum mandatory drug amounts.  Child rapists average around 17 years in prison.  Naturally, prosecutors want to keep jurors in the dark about mandatory sentences on drug offenses, as it is far easier to obtain guilty verdicts when the jury doesn’t realize just how devastating these minimum prison terms turn out to be for defendants and their family. Continue Reading

refereeAfter 22+ years of criminal defense work, certain questions keep coming up.  One of the most common is, “Do you do pro bono work?” In other words, will I work for free?  It takes a certain amount of balls to ask this question.  Would you head over to the car dealership and ask them if they’d give away a car?  Would you ask a mechanic to fix your car for free?

I do give a “free consultation”.  But, a free consultation isn’t legal advice.  Law firms use free consultations to decide whether or not a case—and client—are a good fit for the firm.  Hopefully, potential clients are sizing up the law firms they interview in the same fashion. That being said, a free consultation will never equate to some sort of guide as to how to defend yourself.  Every now and then, I get a do-it-yourself kid who wants legal advice, rather than a free consultation.  If you want examples of folks who have failed because they lack enough common sense to hire professionals to assist them, just tune into Tosh.O  and you’ll get a feel for how folks behave without supervision (Comedy Central, weekdays, you probably already watch it, don’t pretend you don’t).

So, when people aren’t asking me to work for free, they’re asking some form of the question “How much time will I serve?”  Well, that’s a loaded question.  As a general rule, everyone is entitled to some sort of discount on their prison sentence–the going rate is 15%.  For example, a 10 year prison sentence will be reduced by 15%, to 8 ½ years, for what we call ‘good time’ or ‘gain time’.  However, this general rule does not apply to all crimes, as some must be served without a discount (or, “day-for-day”).  Today, we’re going to take a closer look at this issue, as it presents itself in Melvin v. State, 2015 Fla.App. LEXIS 14949 (Fla. 1st DCA 2015). Continue Reading

“Believe none of what you hear, and half of what you see.” Benjamin Franklin (I think)IMG_1609

Unfortunately, violations of probation are fairly easy to prove, but there are a few rules that must be followed.  First and foremost, a violation cannot be based solely upon hearsay.  There are entire books written on the concept of hearsay, of which the first chapter would bore you to tears.  At the risk of losing you on such details, let me just say that hearsay involves a person quoting someone who is not present in court.  So, you can’t convict someone of violating probation by telling the judge that “Someone told me that the probationer did something”.  As basic as this may seem, you may be surprised to find that judges, probation officers, and prosecutors do not understand this age old concept.  To prove this to you, we’re going to take a look at the recent case of Mullins v. State, 2015 Fla. App. LEXIS 13553 (Fla. 2nd DCA Sept. 11, 2015).

Mr. Mullins was found guilty of violating his probation in two ways: (1) he failed to obtain the consent of his probation officer before changing his residence, and (2) he gave false information to his probation officer regarding his actual residence.  Yes, this is two violations for the price of one relocation.  Mullins’ violation began as so many others do–with a probation officer’s surprise home visit.  (Yes, you were thinking a positive drug test, and that’s probably first on the list, with surprise visits running a distant second place) Continue Reading

The waiting is the hardest part, according to Tom Petty.  I get quite a few calls from folks wondering how long it will be before the state files charges against them.  I always say, if you’re going to wait around to see what the government is going to do to you, expect the worst.  The government is not your friend, and they’re not going to help you through the trauma of an arrest.  And, after the trauma of an arrest, it can be stressful waiting to see what or when or if charges will be filed.  On the inside of the government machine designed to rack up convictions, think about what information the prosecutor is reviewing before making a charging decision.  A prosecutor has numerous cases, and will certainly review all of the facts in front of her.  The problem is, if you haven’t hired an attorney to plead your case to the prosecutor before she has made a filing decision, then chances are, the only evidence they have to go on will be the extremely bias reports provided by law enforcement.

So, this may seem a bit obvious, but if you have a case that contains facts that were omitted by law enforcement (most cases fall under this category, and I’m not being cynical), hire an attorney as soon as possible so that the prosecutor can have all the facts before making a charging decision.  No, this not a thinly veiled plug for my services.  I’m just amazed at how serious some cases are, and yet, these folks are taking their time hiring an attorney.  If you wait for something to happen, expect the worst to happen.  If you’re proactive and actually have someone fighting for you–expect good things to happen.  Any sort of delay is a bad thing.  Defense evidence is slipping away.  Video evidence is being taped over, dispatch calls are typically kept for 30 days, and most private security cameras hold their data for even less time than that.  Add to that the numerous witnesses whose statements sound far more credible when taken within days of the incident–rather than months later.  I had a trial last year that involved two eyewitnesses to a crime, and both eyewitnesses were intentionally ignored by the police (because the officers knew their testimony would not be helpful).  Had we been able to point out this testimony to the prosecutor prior to their filing decision, it would have made all the difference in the world.  Timing is everything, as they say (whoever ‘they’ are). Continue Reading