Articles Posted in Misc

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

[This is Part 2 of my cut & paste Kindle highlights of the wonderful book Fooled by Randomness, by Nassim ponce inletTaleb]

Observational data is important to science, and Fooled By Randomness  by Nassim Taleb cautions us that we should not take scientific data so seriously.  We live in a random world, and data can only get us so far in life.

To understand the white swan problem, let’s start with the basics (actually, we’ll end with the basics too, but you know what I mean):

At some point in history, a biologist of the binocular sort (other biologists are of the microscope sort, right?) decided to prove once and for all that “all swans are white”.

He started proving “all swans are white” by observing lots of swans, and documenting his findings.  The first year, he observed 1,000 swans, and all of them were white.  Even with a thousand observations under his belt, he was not ready to publish his results in “Nature”, as more data was needed.  So, he observes another 3,000 swans the next year.  Same result–all the swans were white.   The question is, how much data must this biologist collect before proving that all swans are white?  And, as this biologist collects more and more data, how much more confident should we be in the theory?  Will another 10,000 observations of white swans make us pretty sure that all swans are white?  How about another 100,000 observations of white swans?    Continue Reading

pinball-e1477950529850-225x300

Every 23 seconds, an attorney is asked: “What are my chances of winning?”

Some attorneys play along with this game, especially if it’s a slow month, and throw out a number, like: “You have an 90% chance of winning”.  Most people call several attorneys, and the attorney who is most confident (throwing out numbers, say, in the 90% range)  may end up getting the case.  Confidence is a good for business, right?  But, are such numbers honest?

After 23 years of defending criminal cases (my web people love statements that brag about decades of practice, I will get a star beside my name for this), I am here to tell you that such numbers are pulled out of thin air.  I know, it’s shocking to hear that an attorney could utter words that stretch the truth.  Pull yourself together and read on, because other professions are just as guilty of spitting out misleading/unsubstantiated numbers as attorneys.

Financial advisers and scientists are at the top of the misleading numbers list.  Yes, this is why you don’t believe every infomercial that claims “studies have shown xyz 99% effective”.  But the problem here runs deeper than shady marketing practices, the problem involves what sort of conclusions scientists and financial analysts should be permitted to draw from their data.  To understand problems with data interpretation, we’re going to take a journey through my Kindle highlights from an excellent book by Nassim Taleb entitled Fooled By Randomness.   The book explains just how difficult it is to answer the very simple question “What are my chances”. Continue Reading

What if you were just told that you’re about to hear a “shocking, unethical, and unprofessional” story?  First, the word “shocking” sounds like something straight out of The National Enquirer, and handshakeevery week this tabloid claims to have a new, shocking story (which then has the effect of making it seem not so shocking).  Is it shocking that a vegan celebrity was caught eating ribs at 4 Rivers?  No, its not, because the BBQ at 4 Rivers is so good, it’s intrinsic deliciousness has the power to convert vegans to the other team.  Now, maybe vegan-to-ribs is a bit of a stretch, vegans may start with cheese or egg long before they lick the meat off a slab of ribs.  If CNN or Fox News tells you something is “shocking” and “unethical”, you’ll immediately think that some politician was caught with “his” pants down (yes, I said “his”, because it seems that women don’t get caught in such compromising positions–why is that?).  Today, our shocking story doesn’t come from a tabloid, or cable news, it comes from The Florida Supreme Court.

In The Florida Bar v. Adams and Filthaut, the Florida Supreme Court called the behavior of these lawyers “the most shocking, unethical, and unprofessional as has ever been brought before this Court”.   (Fla. No. SC14-1054, August 25, 2016, you may find the opinion by clicking here).

It all began in Tampa with a lawsuit between two local DJ’s.    After the first day of trial, the lawyers for each side retired for the evening.   A paralegal for the defense attorneys (Adams, Filthaut, and Diaco) spotted the opposing lawyer (Campbell) at a bar in a nearby steakhouse.  She called her lawyer bosses to let them know what she’d found.  After a flurry of communications between the paralegal and the three defense lawyers, a plan hatched to have their female paralegal flirt with opposing counsel (he didn’t recognize her as being part of the other side).  She flirted, lied about where she worked (obviously), and bought him drinks–enough drinks to dip him into a DUI situation.  And, a DUI arrest was the goal here.  To aid in the plan, attorney Filthaut reached out to a cop friend Sargent Fernandez to post up outside the steakhouse to await his big lawyer arrest.  Everything was in place for when Campbell would drive home. 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

IMG_2636

Frank Turner The Sleeping Souls at The Beachum, June 11, 2016

I took my daughter to see Frank Turner & Gogol Bordello at The Beachum last night.  Really, she took me.  I’m not a music journalist, as you will soon realize, so, I’m going to tell you how I felt.

First, Frank Turner and his band The Sleeping Souls.

A few years ago, my friend Ed Leinster passed away.  He had worked with me here at the office for many years, and his motions were absolutely brilliant.  He was brilliant.   Before he passed, he told me of how he was going to legally dismantle the entire sex offender registration scheme.  After explaining it to me, I was convinced he could do it–but he passed on before ever getting the chance.  To understand this loss, imagine Einstein passing on before he formalized his theories on relativity.  Imagine Michael Jordan giving up basketball in high school.  I’m not exaggerating, Ed was just that good.

So, I knew Ed was a legal genius, but I also heard he was a truly gifted trial attorney.  And, that’s where my good friend Ted Marerro comes in.  When Ted was prosecuting felony cases, he went up against Ed.  Bottom line:  Ted racked up 70+ jury trials as a prosecutor, and no one came close to the skills of Ed Leinster.

Originally, this interview was going to be about Ed.  But, Ted’s insights into everything else are worth more than what we initially set out to accomplish.  For example, when defending a cold blooded killer, how do you contain your disdain as he delights in telling you of his murderous ways?  How well can opposing counsel beat your ass without ever having met the client before jury selection?   Ted is not religious (understatement), but he lists several examples of how Christians have gained his respect.  There’s stuff in here about Bob Wesley, Bill Garmany, Jeff Ashton, Joe DuRocher, Don West, Chaney Mason, Andrea Black, and numerous local judges.  A conversation with Ted is like that road trip where you’re really looking forward to the destination–but end up having more fun along the way.  I’m going to convince Ted to come back for Part 2 and 3.  Here’s Part 1.      Continue Reading

I”m warning you in advance that this is, sort of, a book review.  Technically, a book review would require far more thought than what I’m about to say, so let’s call this a strong book recommendation.  What has possessed me to write my first book recommendation ever?  I’ve written over 340 articles for this blog and at about article #10, I started running out of ideas.  This nagging feeling of having nothing to write about continues to this day so, I’m going to recommend a book by Tim Kreider entitled “We Learn Nothing”.

I read this book months ago, so the details here are bit sketchy, sort of like I remember Obi One getting killed in the first Star Wars (makes me cry every time), but I don’t remember much else (well, I also remember Vader chocking some Death Star board member using the force, but that’s about it).   Anyway, I couldn’t put this book down.  I’m the type of person that reads, like, ten books at a time, and I blame Kindle for enabling this attention disorder.  Kreider’s book has so much wit and wisdom, it made me feel inadequate, and I soon realized I will never be able to write a book this good.  “We Learn Nothing” is a collection of true stories, most of which begin with drinking shenanigans, but end up revealing some eternal truth.  The heart of this book is great storytelling, and great storytelling can get you anywhere in life; you can write great songs, get elected to office, win over juries at the local courthouse, get funding for your tech-startup.  Anything.

Let me tell you how I came upon this book.    I was listening to Tim Farriss’  podcast, when he departed from his usual two hour life hacking interview, and instead gave a 15 minute nugget of wisdom from Tim Kreider entitled “Lazy, a Manifesto”.  You can find the audio here, and it is a must listen.  Seriously.

Without further ado, here’s some thoughts from Mr. Kreider’s “We Learn Nothing”traffic, in no particular order (compliments of my Kindle’s ability to save notes): Continue Reading

backpack

“The assumption of an absolute determinism is the essential foundation of every scientific inquiry.”
~ Max Planck
“We must believe in free will, we have no choice.”
~ Isaac Bashevis Singer

Everyone wants to hold criminals responsible for their actions.  This “responsibility” has its foundation in the belief that we all have the free will to choose right from wrong.  What if free will is just an illusion, how would that impact the criminal justice system?   Free will creates the moral structure that provides the foundation for our criminal justice system.  Without it, most punishments in place today must be eliminated completely.  Its no secret that I’m a firm believer in free will, but I’m also a firm believer in arguing against it when it helps my clients.  That’s what we lawyers do (call me a hypocrite if you like, I can take it).  Now, let’s delve into the issues and practical effects of eliminating free will.

We only punish those who are morally responsible for their action.  If a driver accidentally runs over a pedestrian–there will be no criminal charges in the death of the pedestrian.  This is what we call an “accident”.  However, if a husband runs over his wife after an argument, that same pedestrian death now constitutes murder.  It was the driver’s “intent” that made one pedestrian death a crime, and the other not. But, what if we examine the husband’s brain, and an MRI discovers a frontal lobe defect that could explain his deviant behavior?  Is he still guilty of murder?  If such a defect “caused” the husband’s actions, our criminal justice system has laws in place that would label the husband “Not Guilty By Reason of Insanity”.  That being said, what happens if “causation” runs deeper than a mere frontal lobe problem?

Neuroscientists get excited when their brain scans detect an abnormality, but today we’re going to look beyond this modern day phrenology.  Some scientists now claim that human behavior may not, in fact, have its origins in the brain.  Yes, there’s a battle brewing between physics and biologists.  On the one side, we have the white coats feeling lumps on our skulls, or seeing brain electrical activity on a computer screen; all of which is fairly impressive.  But the physicists are telling us that causation predates the brain.  Basically, everything (including brain activity) is the result of the collision of molecules that behave according to the laws of physics (we call this determinism).  If every event is determined by a previous event, there is no room for squishy concepts of “free will” and “morality”.   Free will, then, amounts to one of many illusions inflicted upon us by our tricky brains.  As a criminal defense attorney, I am anxious to see whether or not folks who believe we have no free will are willing to dismiss all charges against my clients who may have (God forbid) raped their wife or killed their dog (sometimes pets evoke more emotion than spouses, I’m just saying).

Continue Reading