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Articles Posted in Sex Offenses

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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lens.jpgSome stories make me wonder what is happening to America. Some stories remind me that our government is out of control. This is one such story. This story makes me sick, and I hope you feel the same way. Let’s delve right in, because you’re not going to believe this.

A 15 year old girl sent her 17 year old boyfriend some sex pics of herself from her iPhone and iPad. The boyfriend reacted in the same way that any 17 year old boy would react–he sent her back a sexy video, involving his aroused penis. I know, this is shocking behavior. This is an outrage! How dare these kids play “spin the bottle” with their iPhones, using technology to produce and exchange such smut. By the way, doesn’t it seem that new technology is rarely used to make the world a better place? Take the internet. What was (is) the internet used for initially? A faster, cheaper way to view porn. What are the new smart phones being used for? A faster, cheaper way to produce said porn.

How did the police get involved? As is often the case, the girl’s mother cracked the weak pass-code on her daughter’s iPhone, and called the police to accuse her boyfriend for the production and distribution of child porn; ignoring, of course, her own daughter’s actions which started this whole thing. And, if I had a dollar for every mom who blames the other kid for her own child behaving badly, I’d be a rich man . And no, the prosecutors did not arrest, and did not charge, the 15 year old girlfriend for initiating this exchange. However, legally speaking, this sounds a like a decent case of entrapment and temporary insanity, as no 17 year old boy could resist his girlfriend’s invitation to exchange such behavior. There are plenty of studies out there on adolescent brains, and I’m pretty sure these studies would support me on this. Let’s face it, no young skull full of mush can resist such an invitation. I’m pretty sure that the old “spin the bottle” game that would get me grounded back in the 80’s has now become a felony sex crime, especially if the kids video tape the event. Naughty behavior among consenting juveniles has extremely serious consequences. Welcome to the new age, to the new age….

Here comes the shocker. After being arrested for possession of child pornography and manufacturing of child pornography–the police forced the 17 year old juvenile boy to expose his penis to them so that they could take pictures of it, in the hopes that these pictures could be used as evidence to prove that said penis matched the penis found on the 15 year old girlfriend’s iPhone video. Yep, our government created child pornography to prove a child pornography case! The irony. I can’t make this stuff up. And, it gets worse.
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bus stop.jpgSometimes, these articles answer burning questions, but not today. Questions like “why something versus nothing?” may get answered later. Today, I’m here to tell you what’s happening in Florida’s criminal courts. As always, I’m attempting to avoid big legal words that make some lawyers feel important, but fail to convey information in a way that can be digested by folks who haven’t gone to law school.

The question for today is: What is the difference between exposing your private parts, and exposing them in a lewd way? The circumstances under which you show your private parts will determine if the case is a misdemeanor, or a felony prison sentence. This is the sort of problem that exhibitionists run into when they’re caught. It seems to me that exhibitionists should simply camp out at clothing optional resorts like Paradise Lakes, but somehow, they never figure this out.

WARNING: I’m about to tell a war story–feel free to skip the next two paragraphs if you think you’ve heard this one before. It seems that the longer I practice criminal defense, the more war stories uncontrollably shoot out of my mouth. With the disclaimer out of the way, pack-it-up-pack-it-in-let me begin:

There’s a difference between exposing your private parts for a misdemeanor, and exposing your private parts all the way to a felony lewd or lascivious exhibition conviction. I had a client years ago that had already been to prison for masturbating in front of kids under the age of 18. Sometime after his prison release, he’s standing across the street from a few high school cheerleaders after their practice for the day (which he, no doubt, enjoyed watching), and he exposes his penis to the girls. The term “expose” may be an understatement, but the term will suffice for our discussion.
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witch.jpgHistorically, witch hunts have not been a good thing. Innocent people have suffered extreme temperature conditions. Now, the witch hunt has shifted its focus away from non-traditional religious practices, and into something everybody can agree is perverted–the possession of child pornography.

The current state of the law is scary. Simply viewing child porn is illegal in Florida. Pretty soon, just thinking about viewing child porn will be illegal. Can you think of anything else that is illegal to see?

I understand the logic here–if you cut of the demand (the viewers), the supply of child porn will decrease as well. But that’s not how child porn works. Sure, if you cut down cocaine users, the supply of cocaine will decrease, but that’s economics 101. Child porn is not an economically driven activity–there’s no money changing hands. Let’s face it, the production of child porn is some sort of perversion. So, it doesn’t take a rocket scientist to figure out that the massive prison terms child porn possession cases has not made a dent in its production.

Here’s my concern for today. The government’s quest to find child pornography is diminishing our constitutional rights, by setting the bar so low to issue a home search warrant. The level of proof to enter a suspected grow house, or to enter a home suspected of containing drugs, is far greater than the proof required to enter a home suspected of containing child pornography. The case that will prove this to you is State v. Woldridge, 958 So. 2d 455 (Fla. 2d DCA 2007).

Woldridge was charged with possession of child pornography, based upon a search of Woldridge’s home. Naturally, this search began as an Affidavit in Support of a Search Warrant. Typically, law enforcement must produce quite a bit of evidence to a judge (in the form of a sworn affidavit) to get into somebody’s house. The constitution requires probable cause that there will actually be evidence of a crime in a house before violating the sanctity of a citizen’s home. In Woldridge’s case, a judge let the police into his home because the police received a tip that child porn could be found in the home. So the question is, who gave the police this “tip”, and how reliable was this “tip?”
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woman.jpgThat ain’t workin’
That’s the way you do it Money for nothin’ and your chicks for free
” – Dire Straits, “Money for Nothing

Here’s something you already know about our government–they break the very laws that would get you and I arrested. On every level, our government may break its own laws. And no, I’m not talking about the families of congressional members that may conduct insider trades that would place you and I in Martha Stewart’s old cell, I’m talking tiny misdemeanors involving humanity’s oldest profession.

We all realize, at some basic level, that our government may lie to us. Our government may deceive us. And, our government may break the law. From a criminal defense attorney standpoint, whenever law enforcement breaks the law in order to arrest my client, I’m looking for entrapment issues. An entrapment defense is telling the court that our client should not be prosecuted because the arrest was created by police conduct that should not be tolerated. The issue often becomes one of deciding whether our government promoted a crime, or detected it. When it comes to entrapment, the level of inducement becomes an important factor for courts to consider. See Munoz v. State, 629 So. 2d 90 (Fla. 1993). So, just how far can our government go in order to “detect” a crime?

There’s a long list of illegal activities that the police engage in to catch criminals. Government officials go undercover and deal crack cocaine in our inner cities, in order to catch potential buyers. As Chris Rock was fond of saying, crack sort of sells itself, and the term “sale” may not appropriate here. In these cases, entrapment can be a difficult defense because the undercover dealers are probably providing a low level of inducement, if any at all (crack sells itself, so there’s not much inducement).

The same cannot be said of prostitution. Don’t get mad at me for saying this, but many folks would participate in prostitution if the price was right. Would you have sex once for $1,000,000.00, tax free? How about $100,000? How about $10,000, for just an hour of “work”? Again, by indulging in pricing scenarios, we’ve already established that folks woudl be willing to be a prostitute, we’re just negotiating price, or the level of inducement. The movie Indecent Proposal exposed the dirty fact that some women would become a prostitute just once if the price were right. Oh, but that was just a movie, no women would take a million dollars for one night. Pure Hollywood fiction, I’m sure.
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film.jpgAnyone out there watch ABC’s Castle? It’s a solve-the-murder-flirting-detectives show (a la Moonlighting) that follows just about the same formula as any other crime show out there. You know they haven’t found the killer within the first 15 minutes of the show because if so, what will they talk about for the remaining 45 minutes? (Actually, they could fill the time with fake trailers for Castle’s upcoming movies, and that would be creative, but network television has somewhat abandoned anything remotely creative) Anyway, there’s always that one character early in the show that says “we’ve found the killer, let’s go have some drinks.” But no, the lead detective (Beckett) has a hunch that something just isn’t right, and she’s going to peel back the layers to uncover the truth. Believe it or not, this happens in criminal cases as well. In our case today, we find an intellectually lazy majority opinion written to preserve a conviction, yet one dissenting judge stands up to uncover the truth behind the intellectual dishonesty of the majority opinion. All of this excitement can be found in Jenrette-Smith v. State, 114 So. 3d 427 (2d DCA 2013).

Before we delve into the Jenrette-Smithcase, it is important to review some basic mandates of legal construction. Florida Statutes Section 775.021(1) contains a mandatory rule of construction, so that “when the language [of a law or statute] is susceptible of differing constructions, it shall be construed most favorably to the accused.” Easy enough, right? Is there anything more important for an appellate judge to do than interpret the law as it applies to a given set of facts? As you will soon discover, knowing the law and knowing how to interpret it are two different things.

Mr. Jenrette-Smith received 30 years in prison after a jury convicted him of promoting sexual performance by a child. In the spring of 2009, Jenrette-Smith decided to permit M.S. (she’s a juvenile, so we don’t use her full name), a sixteen year old runaway girl, to live in a bedroom of his home. Both M.S. and Jenrette-Smith decided to take sexual pictures of themselves, with no one else was around during the picture taking (no audience, in other words). M.S. and the defendant had the pictures developed at Walgreens, defendant paid. M.S. told the jury that the pictures were stashed in Jenrette-Smith’s mattress. She could not remember who carried the pictures from Walgreens to their home, or even if Jenrette-Smith ever looked at the pictures. Also, there was no testimony as to who stored the pictures in the mattress.
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mobile texting.jpgOur government is constantly pretending to be something it’s not–in order to catch would-be criminals. The problem is, have you been on the internet recently? Isn’t EVERYBODY pretending to be someone they’re not–on the internet? Go to a dating site, and you’ll find extremely old self-photos, false age data (everyone pretends to be younger online), and job titles that stretch the imagination (everybody online is some sort of president, vice president, expert, sanitation engineer). The government has caught on to this, as they now have teams of highly paid detectives sitting in front of computer screens, pretending to be underage girls.

Sometimes, lying is perfectly legal. For example, when our government pretends to sell drugs, they are legally entitled to arrest would-be drug addicts attempting to buy their next fix. One recent Orlando sting operation had undercover cops going door to door in poor neighborhoods attempting to sell admittedly stolen goods. Now, don’t expect this sort of undercover operation in Heathrow or Alaqua, this sort of MBI (Metropolitan Bureau of Investigations) operation is reserved only for the least of our brothers (hum, you know what the Bible says about whatever you do to the least of our brothers). Anyway, the undercover MBI agent knocks on a random door, and a poor 80 year old man answers the door. The undercover cop claims to have several stolen cartons of Marlboro cigarettes at a great price. The 80 year old said “no thanks”, because he doesn’t smoke. But, MBI didn’t spend all that money on this operation to take “no” for an answer, so just like any good door to door salesman, this undercover cop had to make his quota of arresting poor people for the day. As such, the cop pushed the old man harder, asking if any of his children smoked. Eventually, the old man bought a few cartons of stolen cigarettes for his son who smokes. Soon thereafter, he was arrested and charged with Dealing in Stolen Property. Now, legally, the property doesn’t actually have to be stolen in order to convict on a charge of dealing in stolen property. Seems kinda wrong, doesn’t it? Well, since when has “wrong” ever stopped our government? After all, this was an Orange County “MBI” operation, and any government organization that is represented by three letters is probably up to no good. I’m just saying.
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