Articles Posted in Other Offenses

fostex-8-track-e1516227725568-225x300I’ve been recording bands and artists since my high school days, but I sold my recording studio back in 2010.  Recently, I was going through a box of wires (junk) and I stumbled across some old ADAT tapes, and reel to reel tapes.

Now, there’s something you should know about these tapes.  You cannot play them in an ordinary reel t0 reel machine, because these tapes were made especially for use with my old 8-track Fostex recorder.  Same goes for the ADAT tapes.  These tapes are, technically, VCR tapes, but they don’t work in a VCR, they only play on an Alesis ADAT multitrack machine.  I got a little sentimental when I ran across these old band recordings, but I just don’t have the equipment to play these tapes.

These band memories captured on ADAT and Fostex are lost forever.  Maybe forever is slightly dramatic, given the fact that I can pay a ridiculous ransom to some “vintage collector” and maybe, just maybe, these old units will work.  But, you get the point.  Technology has changed so much during my lifetime that I can’t even play the memories I once made.

This whole train of thought came from an interesting article by Robby Berman, Is There Going to Be a Big Hole in History Where the 21st Century Was?   His point is pretty simple.  At some point in the future, your kids will reach “an age when they want to know who their parents were, what they thought, and what they felt.  One day the kids will come across a trunkful of these intimate messages on USB thumb drives, hard drives, or solid-state drives–and have no way to read them.  The same will be true for the thousands of digital childhood photos we’ve been taking, and which they’ll be desperate to see.  Absent a trip to a hardware archivist or local museum, all this silicon might just as well return to its original form–sand–for all the good it will do.  Experts are concerned that this time, now, in the 21st century, may well be the future’s ‘digital dark age,’ with nothing ultimately left behind to tell our story for future generations.” [Berman’s article accessed 1/17/18] Continue Reading

pouch-300x225Big charges make the news.  Defense attorneys love big cases because their egos enjoy coverage on the evening news.  Heck, lawyer egos even enjoy the bought-and- paid-for attention manufactured from incessant TV ads and billboards.  And, if you know nothing about attorneys, please know that they have quite the egos.

The ego stroking options are endless for attorneys, big cases aren’t the only way to go.  When I first started defending criminal accusations back in 1993, all the new lawyers at the public defender’s office bragged endlessly about their jury trials, even to the point of chest pounding the likes of which you haven’t seen since the intro to 2001: A Space Odyssey (One of the best movie intros ever? Certainly makes the Top Ten List).  At my old PD office, when an attorney was about to begin a trial, a loud ego blast (email) would go out office wide, saying something like “picking 6, someone please cover my office conferences”.  No, this attorney never had anything to cover, but at least the whole office knew what a “fighter” he/she was.

A particularly annoying fad of late is the rash of attorneys who write “books”.   I don’t consider these books to be real “books”,  that’s why I’m using air-quotes.  Unfortunately, books are now like a business card, a marketing tool, rather than something that can add value to folks lives.  Call me old fashioned, but I say write a good book or don’t bother.

And, this brings us to an important question someone smarter than I formulated: Am I saying this because I want to sound smarter than everyone or am I saying this because it needs to be said?  Continue Reading

IMG_4561-300x225Storytelling is important.  There are books out there that claim to teach storytelling, but its more of an art than a science, so I’m not super confident much can be learned from a book.  The most common example of this is learning how to swim.  Sure, you can read a book that will “teach” you how to swim–but if you’ve never been in the water–that book knowledge may not be a safe way to go.  I’m just saying.

I owned a record studio for many years, and storytelling can make or break a recording artist.  Much like psychologists who love to study twins separated at birth, we studio geeks love to study the course of the same story told by different singers.  One classic example of this is a song Otis Redding wrote and recorded in 1965, “Respect.”  The song did well on the soul charts, but when Aretha Franklin sang Otis’ song in 1967, she told a different story with the same lyrics.  She made history with this song, really.  Same lyrics as Otis.   Absolutely owned it.  The same effect was not had when Phil Collins covered The Supremes’ classic “You Can’t Hurry Love”.  Diana Ross’ vocals are  classic on that track, and Phil Collins didn’t come close to wrestling ownership away from The Supremes.

Do you think that cops get tired of hearing everyone’s story?

The problem is, everyone thinks they can talk their way out of a criminal charge.  This is America, and even though folks have the right to have an attorney present, not everyone exercises this right.  Yes, this is a bad idea on many levels.  Remember, there is an art to storytelling, and even true stories come out sounding fishy once the police get done misquoting you.  But, every now and then the right story will get a case dismissed.  Sure, I’m spoiling the ending, but it will be an interesting ride. Continue Reading

math-300x195Tech people are a pretty cocky bunch.  Most tech believers will tell you that all of human “progress” has come via technology.  Obviously, they’re not focusing on our more deadly weapons or better ways to destroy the environment, they’re bragging about the most basic technologies–like how to start a fire.  After all, if we were still trying to figure out how to start a fire, you wouldn’t be reading this right now, and we would all be eating the original paleo diet.

Often, new technologies mean job losses to someone, somewhere.  When elevators were first invented, nobody trusted these machines to magically transport them to another floor.  So, a human being was employed full time to operate the elevator.  Eventually, the “Elevator Operators Union” (it still exists) lost 17,000 jobs with the advent of automatic elevators.  And, who can forget the autoworkers losing their jobs to bright yellow robots who could build cars smarter, better, faster?

Its not fair to single out the robots, or the invention of automatic elevators.  For example,  9,000 Blockbuster Video locations shut their doors once the internet started delivering movies.  Nobody that I know of has ever stood up for the Blockbuster store clerks that are now unemployed.

Technology seems to be bored with wrecking blue collar jobs in manufacturing.  Rumor has it technology is also after my job.  Yes, good old fashioned white collar attorney jobs.  I had a fairly wealthy friend recently do his will from forms purchased over the internet (LegalZoom, I think).  Ten years ago, he would have hired an attorney at 10 times the price.  And, hey, let’s not forget all the accountants that have lost a job to TurboTax. Continue Reading

question-mark-231x300For several weeks now, my left index finger has been twitching.  Out of the clear blue, twitching.

I did what most people do, looked up “finger twitching” on Google.  Now, there’s plenty of problems with online medical diagnosis, but the main problem is my brain.  It seems to be wired to click only on the articles that have the most severe diagnosis.  So, my eye scans Page One of my Google search, locking in on an article where finger twitching was the first sign of a deadly brain tumor.  I’m immediately drawn to the worst case scenario.  I can’t help myself.

But, was I asking Google the right question?  No.

I have a Juris Doctorate degree, but zero medical background–so the medical questions I’m asking Google are not going to help me.  To get to the right answers, I’ll go see my doctor and he’ll ask me the right questions.  I don’t know the right questions to ask.  Now, when your doctor asks you series of seemingly unrelated questions–there’s a method to their madness.  These odd doctor questions have a purpose, and we all must suffer through them eventually.

The great Tony Robbins reasons that “quality questions create a quality life.  Successful people ask better questions, and as a result, they get better answers.”  I see his point.  Any 6th grader can “get answers”  just by asking Google.  Getting answers isn’t the point.  The point is, are you asking the right questions?  Does anyone ever admit that they’re asking the wrong questions?  Most people don’t ask the right questions, especially when it comes to legal stuff.  I’m not offended by that, as it is my job to ask the right questions.

As a general rule, Tony Robbins suggests “starting every day by asking yourself these 3 questions:

(1) What is something I can do for someone else today?

(2) What is something I can do to add value to the world today?

(3) What is something that I have to offer other people?”

[See “Ask Better Questions”,  www.tonyrobbins.com/masterpiece/ask-better-questions/] 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

Laws need not be logical to be legal.  For example, does it make any sense that a motorcycle cop can issue a citation for failing to wear a seat belt?  What motorcycle has seat trafficbelts?   Does it make any sense to charge an 18 year old with the crime of “Possession of Alcohol By a Minor”, yet its legal for this same 18 year old to become an porn star on her 18th birthday?  Drinking a Miller Lite is illegal, but porn acting is perfectly legal.  I suppose she could act like she’s drinking beer while filming her scenes, but they’d have to fill the bottle with apple juice for the youngster.  Or, at age 18, you can join the armed forces and, potentially, kill people in defense of our country.  But, you can’t drink a beer.  Sorry, that’s a crime.  Doesn’t seem right, does it?  I think that, if you’re old enough to defend my freedom, have a beer.  I’m buying.  Anyway, let’s try to transition into the somewhat less exciting topic of driving while license suspended (DWLS).  Smooth segue, right?

Driving on a suspended license (DWLS) is a progressive disease.  It starts small, but often grows into a prison term.  Here’s the pathology:  a citizen gets caught driving without a valid license.  A cop issues a citation. But, as luck would have it, the person gets caught driving a second time without a valid license.  Then this same person gets caught driving a third time.  Once a driver has three convictions for driving on a suspended license, you have now officially caught the attention of the Department of Motor Vehicles (and that, my friends, is never a good thing).  At this stage, the DMV will issue what is called a Habitual Traffic Offender (HTO) suspension for five years.  If a driver is caught a fourth time driving on an HTO suspension–this is a felony offense, carrying up to five years prison.   Continue Reading

Does the government understand it’s own laws?  If you ask the elected officials who are drafting the laws, they supreme courtmay tell you to wait until the bill has passed to find out what’s in it.  Basically, not even the people drafting our laws understand them, and things get no better once a law has passed.   Ask three government officials a question, and you’re likely to get three different answers.  Even if you arrive at a reasonably correct answer, that law may conflict with several other laws.  For example, when We The People decided to legalize marijuana in several states, our federal government did not agree with that decision.  After all, marijuana is still a Schedule 1 narcotic under federal law. So, do you think the federal government might respect the state electorate’s decision?  Of course not.  Like some two year old throwing a tantrum, the feds harass legal marijuana retailers by threatening money laundering charges against any bank that accepts currency derived from the sale of an illegal narcotic.  If you want to legally buy weed, you’re going to have to pay in cash.  Coincidentally, this is the way weed transactions have gone down while the substance was illegal, so I guess some things never change.

The federal government is not happy with certain aspects of Florida’s criminal justice system.  Namely, they don’t like the fact that Florida permits citizens to admit to a crime–yet not be found guilty of it.  We call this a “withhold of adjudication”, and here’s how it works.  Say you have stolen a car, and you confess to such.  In court, the guilty plea sounds something like this: “Yes Your Honor, I stole that car, I plead guilty to the crime of Grand Theft Auto”.   In Florida, the judge may respond “I am not going to find you guilty of stealing the car, this court will withhold adjudication, you will not be a convicted felon”.  Unfortunately, the federal government has never approved of such technicalities, and the feds will treat this plea as a conviction.  To see how this issue was recently resolved, let’s take a look at the case of  Clarke v. United States of America, 2016 Fla. LEXIS 277 (Fla. 2016). Continue Reading

One of the cool things about criminal law is that our evidence, disputes, and analysis are open to the public. All of our disagreements at motion hearings and trials are open to the public. If an “expert” claims that XYZ is true, that expert will be subject to cross-examination, and he or she must answer the opposing side’s questions (redundant, I know). This is not true of science. What we think of as “scientific truth” is subject to the whims of those who decide what will be published and who should be awarded research money. The culture of science discourages dissent, so science typically doesn’t advance based on honest debates about the evidence, but rather, “science advances one funeral at a time” (Max Planck). Dr. Henry Bauer, Professor Emeritus of Chemistry & Science at Virginia Tech, explains that for many “scientific truths”, “there are perfectly competent and well informed scientist who disagree on the basis of good evidence with what everyone else believes, and that this evidence and the arguments offered by these dissenters is simply ignored by their supposed peers, who seek to enforce an orthodoxy instead of assessing all the evidence with an open mind.” Bauer, Henry “Dogmatism in Science and Medicine

The criminal court system is far more intellectually honest than much of the scientific community. Criminal justice issues are subject to cross examination in a public forum, now, try getting a scientist to defend their views in a public and most will only show up if the opposition still believes the earth is flat. In criminal law, when several judges disagree, sometimes the Supreme Court will step in to resolve the dispute, and the entire process is open to the public. Every piece of evidence, every appellate brief, every oral argument. So today, we’re going to examine one of many disagreements percolating in Florida’s criminal courts regarding the popular criminal charge of driving while license suspended or revoked (DWLS).

At first glance, an arrest for driving while license suspended implies that the citizen at one time possessed a valid driver’s license that has since been suspended or revoked. But many folks in Florida have never had a driver’s license to begin with, and yet they still end up getting arrested for driving on their suspended (nonexistent) license. Should a person who has never had a license be convicted of driving on a suspended license? Florida courts disagree on this issue, so let’s begin the analysis with a (bad) case out of the Second District Court of Appeals, Carroll v. State, 761 So. 2d 417 (Fla. 2nd DCA 2000).
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