Articles Posted in Sex Offenses

female walkerI used to think that paying less for something was a good deal.  Lower price = better deal, right?  Now I’m a bit older, and my position has evolved (‘evolved’ is a condescending term, right?).  It’s not always a good idea to go with the lowest price.  Often, paying more for something means you’re getting a better value.  So, finding the lowest priced burger, or steak, or car, or attorney—is not a good idea.  Quality matters, value matters.  And on that note, this article is worth what you paid for it.

Anyway, one of my favorite restaurants is Bern’s Steak House.  Whenever I’m in Tampa, I try to hit Bern’s, and I consider it an excellent value.  When I mentioned this to a friend who likes steak, he quipped that he can’t afford expensive steak houses.  I don’t consider Bern’s expensive.  A mere $34 buys a small filet, plus salad, plus loaded baked potato, plus French onion soup, plus two side items.  That’s a lot of food for under $35.  My friend says Outback does the same thing for $17, half the price.  I say Bern’s at twice the price is a bargain, he says I’m paying too much.

Pricing tends to be relative, yet We The People have a constitutional protection against our government charging us too much bail, or too much of a fine.  Excessive fines are banned by the Eighth Amendment to the United States Constitution.  How can we tell if a fine is too expensive for the crime?  That question was recently addressed in State v. Cotton, 2016 Fla. App. LEXIS 2859 (Fla. 2nd DCA February 26, 2016).

Cotton was convicted of soliciting a prostitute, something perfectly legal in Nevada and most of the planet–but illegal in Florida.  Solicitation is a second degree misdemeanor, meaning that, a conviction can put you in jail for up to 60 days, and possibly a maximum fine of $500.  In case you’re wondering how serious this crime really is, Florida has no lower criminal act than a second degree misdemeanor.  That being said, the solicitation statute changed a few years ago by adding a mandatory fine of $5,000.  Yes, you heard me.  Let’s say you “holla” out of your vehicle for a street walker to enter your car for sex–that will get you a $5,000 fine.  Not $2,850.  Not $4,432.  You must get the full $5,000 fine.  This seems a bit excessive, doesn’t it?  If you molest a child, there’s no $5,000 mandatory fine.  If you beat your wife in front of the child you just molested, there’s no mandatory $5,000 fine.  I could go on, but you get the idea. Continue Reading

When I was young, my family wasn’t the first to get cable TV, but, my cousin Louis had cable TV in his basement.  So, on August 1, 1981, we both sat there in amazement as MTV began its first broadcast.   On that day, my love affair with music videos began.  Soon, I convinced my parents to buy a video camera (massive piece of equipment, back in the early ’80’s) and I had a good time shooting lip synced music videos with neighborhood friends.  Eventually, I had to grow and become a lawyer, but in the ‘90’s I owned a music video production company here in Orlando, steady-cam and all.

I say all of this only to bolster my credibility regarding pictures and video.  As you know, video cameras basically capture pictures in sequence, and our iPhones have blurred the line between cameras and video cameras by doing both things without much fuss.  And, the number of pictures that can be taken per second (frames per second) has gone through the roof.  We now have cameras out there, like URSA MINI from Blackmagic Design, that will capture 160 frames (pictures) per second, all for a couple of thousand dollars.  Back when I was shooting music videos, my “3-chip” digital camera cost thousands, but could only shoot 30 frames per second.  Now, you might be asking yourself, what does this have to do with child pornography?  Well, here comes the transition folks, wait for it.

Florida’s legislature has decided to punish child pornographers for every single picture they possess.  Each photograph is a felony carrying 5 years in prison.  What this means is, as cameras become more advanced and take more pictures per second, the punishment for this crime skyrockets, as defendants charged with such crimes often possess hundreds of photos.  To see how this plays out in real life, let’s take a look at the recent case of Pardue v. State, 2015 Fla. App. LEXIS 13406 (1st DCA Sept. 9, 2015). Continue Reading

I’ve heard folks complain that some laws simply “legislate morality” and as such, those laws should be stricken.  After all, just because my mom thinks it’s wrong to do heroin, that doesn’t make it wrong for others, right?  Well, I hate to break it to you, but all of our laws legislate morality, and it seems like prostitution is a more obvious piece of moral legislation than most.  After all, everyone can agree that rape and molestation are wrong, but the grey areas involve crimes that do not, on their face, harm others.  The Libertarian in me says, hey, if youIMG_0049 want to inject yourself with enough heroin to have a Near Death Experience, go for it (NDE for short, and, doesn’t it legitimize things when a string of words has an acronym?  Yes, it does, don’t fight it).  The problem is, how far are you willing to take this idea that an individual’s drug abuse doesn’t affect anyone else? (aren’t we all ‘connected’?)  I’m guessing that most heroin addicts have no medical insurance to pay for the ambulance ride to the morgue, so the rest of us end up paying for someone else’s rock star lifestyle.  And yes, you can find a better analysis of this topic in some overpriced college textbook in philosophy, political “science”, or religious studies, but I prefer a band called Cake:

“Aging black leather and hospital bills, Tattoo removal and dozens of pills.  Your liver pays dearly now for youthful magic moments, but rock on completely with some brand new components. 

. . .How can you afford your Rock N’ Roll lifestyle?  . . .Excess ain’t rebellion, you’re drinking what they’re selling” – Rock n Roll Lifestyle, Cake

One of the “crimes” that I think shouldn’t be a crime is prostitution.  The previous sentence may offend all the good people out there, but I’m just saying, consenting adults should be allowed to pay for basic human needs.  Why reserve the basics for paraplegics who can afford sex surrogates? What I do like, though, is the idea of health insurance companies paying for sex, it’s what Marvin Gaye was talking about in his track Sexual Healing, right? Continue Reading

Florida has lots of folks on probation.  For the fiscal year 2013-2014, the Department of Corrections supervised 143,809 citizens.  Our success rate was 56.4%, and it costs the state $1,825/year to supervise these 143,809 people.   Florida only recouped $72 million on that $262.4 million supervision expense.  Yes, crime pays.  That being said, probation is a far better deal for we taxpayers than incarceration—those numbers are scary (a topic for another day).

Many of Florida’s probationers are sex offenders.  To qualify for sex offender probation, you need do nothing more than look at naked 16 year olds on your computer.  Sex offenders have far more conditions than standard probationers, and by standard probationers, I mean the ones that may have shot somebody, stabbed someone, or robbed someone at gunpoint.  Yes, looking at naked teenagers on your computer is a higher level of supervision than violent crimes (unless, of course, the violent crime is sexual in nature).  A sex offender must have a curfew, must not live within 1,000 feet of a school, day care, park, playground.  A sex offender must undergo a polygraph examination annually to determine if they are re-offending.  Also, a sex offender must keep a driving log, and cannot drive alone without his probation officer’s approval.

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All the lonely people, where do they all come from?  All the lonely people, where do they all belong?craigslist warning

There’s a certain art to getting people to do things that do not come naturally.    For example, American soldiers were not killing as many enemies in World War II as some would have preferred, so our government made changes to increase kill rates by the time we arrived in Vietnam.  One simple change involved shooting targets.  In WWII, soldiers practiced with bull’s-eye designs, but to boost kill rates, our government changed to silhouette targets of actual human beings.  (See Dave Grossman’s book “On Killing: The Psychological Cost of Learning to Kill in War and Society”).   These changes worked, and kill rates were much higher in Vietnam vs. WWII.  Now, at what cost did we increase the kill rate?  It has probably cost our soldiers more in mental agony than it is worth, though this is a subject of much debate (about which I know very little, but it might explain the higher rates of PTSD these days).  In much the same way that our military has changed how they train their soldiers to kill at a higher rate, law enforcement has changed the way they approach men in their undercover operations to catch sexual predators.  Again, at what cost?   Our court system seems to ignore law enforcement’s recent push to “create” the crime of traveling to meet a minor, rather than detect this criminal conduct.  When our government creates a crime, we typically call that “entrapment”.  When our government “detects” a crime, we typically call that “good police work”.

First of all, law enforcement has decided to pick the low hanging fruit: lonely, horny, men (possibly redundant, but not necessarily).  You may ask yourself, where does the government find all these lonely men to string along?  Craigslist, of course.  Specifically, the personal’s section “Women Seeking Men”, or “W4M”.  Now, you can’t just go straight to the w4m section.  Nope.  You must first heed the following warning from Craigslist: “By clicking the w4m link below you confirm that you are 18 or older and understand personals may include adult content.”  So, most rational human beings understand that the ads that follow are from women “18 or older”, right?  Let’s take a look at (another) a real life Craigslist case, Seo v. State, 143 So. 3d 1189 (Fla. 1st DCA 2014). Continue Reading

P1040115Lawyers fight about words.  And, even if we agree on the words used, we often disagree about the legal consequences of those words.  Today’s case is an example of just such a dispute.  In Tulier v. State, the defendant was convicted of attempted sexual activity with a minor for asking an illegal question.  147 So. 3d 1037 (Fla. 2nd DCA 2014).  According to the appellate court’s opinion, here’s what happened: “While driving an SUV, Tulier stopped at a stop sign.  The victim was on his bicycle in the crosswalk in front of Tulier.  As the victim passed, Tulier called out to him through his open passenger-side window.  The victim approached the passenger side of the vehicle walking but still astride his bicycle.  Tulier asked him through the open SUV window what his name was and how old he was.  The victim said his name and said that he was seventeen, although he was still sixteen at the time.  Tulier then asked the victim if he wanted to make $400, to which the victim asked how.  Tulier said, “Blow me.”  The victim immediately called his father on his cell phone, and his father told him to get the SUV’s tag number.” Id.

So, Tulier asked an underage boy to have sex with him, and that question led to a conviction for a felony sex offense.  Attempted sexual activity with a minor carries a lifetime of sex offender registrations, so it was important that Tulier’s defense attorney reduce the charge to something less serious—a solicitation.  Yes, there is a big difference between an attempt and a solicitation.  In general, an attempt goes beyond mere words into some overt act, whereas a solicitation is typically words only (however, ‘mere’ words can get you a conspiracy charge, a story for another day). Continue Reading

IMG_1087.JPGForgive me for stating the obvious, but a criminal record will hurt your employment opportunities. A petit theft charge, for example, will limit job opportunities in retail stores because most retail stores suffer the majority of their losses at the hands of their employees–so these stores prefer to hire someone with a record of driving on a suspended license or marijuana possession, rather than theft.

And, while theft charges can put a dent in things, being a sex offender absolutely crushes any hope of ever being employed again. Period. Not a dishwasher (not that there’s anything wrong with that). Not flipping burgers, rolling burritos–nothing. Not only can sex offenders not find employment (double negative? Maybe not), good luck finding a place to live that isn’t within a 1000 feet of a school or playground. I’ve seen city’s set up playgrounds just to drive out sex offenders–so much for liberty and freedom to travel.

It should come as no surprise that the bleak employment prospects of sex offenders also translate into a life of living under bridges, and having no money (redundant, I know). To add insult to injury, when a sex offender moves from sleeping under one bridge to sleeping under another bridge, this change of address requires government intervention. You anti-government folks (me?) should be jumping up and down when the government tacks on requirements to a citizens’ movements once they’ve completed their prison time and probation.

So, a sex offender is required to do two things within 48 hours of any sort of overnight movements. First, Florida Statute 943.0435 requires the offender to register his change of address with the local sheriff’s office. The sheriff’s office will photograph the offender, take down the new address, and take fingerprints. Now, when I say change of address, I don’t mean the kind of change of address that we free citizens think of. For example, this past weekend my significant other and I drove down to Cedar Key for several days. That trip to Cedar Key would be a “temporary change of address” requiring fingerprints, new pictures, the whole nine yards in both locations–the place that I’m leaving and Cedar Key. Sounds un-American, right? All of this for folks that have already paid their debt to society, served their prison time, served their probation time, and served their Jimmy Ryce Act involuntary hospitalization for treatment (many of my clients who have endured being Jimmy Ryce’d find it worse than prison, but that’s a story for another day).

[PHOTO: I took this shot in St. Croix, just over a year ago, it’s one of the many places I imagine my self sitting there and doing nothing]
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Thumbnail image for IMG_0205.JPGAs you know, judges have an obligation to hand down “just” sentences. This is not an easy task, because our elected officials have meddled in the sentencing process, and created laws that are simply too harsh for the crime committed. When judges are confronted with a potential sentencing injustice, they have an escape valve known as a downward departure. In essence, if a defense attorney can convince the judge that certain mitigating circumstances are present, a trial judge may “downward depart” from the sentencing guidelines (so, if the legislature says the defendant must serve 10 years prison, the judge may ‘downward depart’ to give something lower, like 5 years prison, for reasons discussed below).

Sex offenses are the unofficial targets of ridiculous sentencing guidelines. For those of you who pay too much in taxes (all of you who actually pay taxes?), rest assured that sex offenses are that giant sucking sound Ross Perot thought he heard coming out of Mexico. But hey, why pay teachers the money they deserve when we can, instead, spend another $43,285/year housing a guy in prison for looking child porn? The sentence for possessing several hundred child pornographic images will exceed the minimum mandatory sentence given to a child molester, a rapist, and even some murderers (for more info, see my article found here).

How can we possibly stop the insanity? Judges look to the downward departure rules to help impose more reasonable sentences. To understand the kind of battles that ensue on the rare occasion that a judge departs on a sex case, let’s take a look at the downward departure found in State v. Davis, 141 So. 1230 (1st DCA 2014). Here’s what happened. Davis responded to an adults only dating website, specifically, to a 32 year old’s ad claiming that she and her “little sister” were in town, looking to have fun tonight. Naturally, the ad makes no mention as to how old the 32 year old’s sister really is, so Mr. Davis answers the ad. And, you know the rest of the story, but I’ll say it anyway. The 32 year old was actually a detective of unknown age (though, I presume of legal age, it’s hard to make detective by age 16). And, the promised ménage a trois (all the French I know, plus a few lines out of “Lady Marmalade”) is only twisted into something criminal once the detective has Davis hooked.
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high heels.jpgIt’s time, again, to compare Florida’s laws to the rest of the world. Here in Florida, beating your wife–in front of your young kids yelling “stop hurting mommy”–carries a maximum fine is $1,000 and possibly jail time (of course, therapy for the kids will cost more than that). But, asking an undercover cop for $40 worth of sex will get you a $500 fine plus a mandatory $5,000 civil fine. That’s right. Consenting adults, a $5,000 mandatory fine. Kid’s yelling “stop hurting mommy” = $1,000 fine (max).

Technically, there isn’t a misdemeanor in Florida that carries a greater financial penalty than soliciting sex. A $5,000 mandatory fine sounds like something out of Middle Eastern country, maybe Turkey. No, prostitution is legal in Turkey (it’s the Middle East, how can that be?). How about those uptight Brits? Nope, prostitution is legal in the UK. Well, surely this $5,000 fine could be imposed by the predominantly Catholic Mexicans south of the border, right? Wrong, prostitution is legal in Mexico. Hum. Maybe the Russians would impose $5,000 mandatory fine? Sorry. In Russia, prostitution is like a speeding ticket, carrying a maximum fine of $65; it’s not criminal. But, as luck would have it, the good old State of Florida has a $5,000 mandatory fine attached to asking for sex from a prostitute. Florida has managed to make it into the top ten for our incarceration rate (worldwide), so it should come as no surprise that our fines are just as excessive as our incarceration rates. But, the times, they are a changin’.

Recently, a rare dose of common sense has sprung up out of Broward County. In the case of State v. Javares Jones (12-21991MM10A), Judge Kenneth Gottlieb found that the mandatory $5,000 civil fine attached to a Solicitation of Prostitution was unconstitutional. The facts of the case are pretty straight forward. Jones entered a plea to a second-degree misdemeanor Solicitation of Prostitution on January 21, 2014, and the court imposed a “mandatory civil penalty of $5,000”, pursuant to Section 796.07(6) of the Florida Statutes. Yes, this is a lot of money, especially when you consider the fact that a second degree misdemeanor carries a maximum fine of $500, and up to 60 days in jail. We all know that $5,000 is a bit excessive, but how do you prove such?
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Christ the King.jpg I’ve been in front of many many judges over my 21+ years practicing criminal defense. Their job is simple–to referee the game. Nobody comes to the game to see the referee, but how these judges call the game may influence the outcome. As the old saying goes, a good lawyer knows the law, and a great lawyer knows the judge. That’s true, but knowing a judge’s religious beliefs will not necessarily provide you with any more knowledge as to how harsh, or lenient, that judge may be. That fact is probably a sad commentary on how our beliefs affect our decisions at work. As a Christian, I wouldn’t make a very good judge, because Christianity requires a bit a mercy and love. Mercy, essentially, suspends justice. But as a judge, your job is to dispense justice, not mercy. It is disappointing for me to see judges that call themselves Christians hand down completely unmerciful decisions. We’re going to take a look at just such a decision today.

Recently, an appeals court overturned a rape sentencing due to judicial comments regarding religion. Obviously, religion has no place in the courtroom, but as a defense attorney, a tad bit of mercy every now and then is much appreciated. And, to no surprise to some of you, but much of the judicial mercy I’ve seen comes from judges that are not particularly religious. To make matters worse, the harsh sentences often come from so-called religious judges. Again, hypocrisy can be frustrating, but certainly not surprising. Today, let’s examine the role religion is permitted to play in the sentencing of Florida’s defendants. The case is Torres v. State, 124 So. 3d 439 (Fla. 1st DCA 2013).
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