Patrick Megaro, Esquire

Sometimes in life, you have to speak up.  Yes, that’s what you pay an attorney for.  But no, it doesn’t always work the way it should.  And unfortunately, if your attorney doesn’t object when he/she should have–this will create all sorts of problems later.

The good news is, we have appellate attorneys like Patrick Megaro.  He solves the problems created by all the things that go wrong during a criminal trial.  And yes, lots can go wrong.

Enjoy Part 2 of Patrick Megaro’s warning to we defense attorneys, he’s going to remind us how to keep a criminal jury trial clean enough to reverse the conviction on appeal–should things come to that.   I published Part 1 of his article a few weeks ago, it deals with pretrial motion issues and voir dire.

Look, I know that you attorneys out there think you know everything–but you don’t.  Quit being so cocky.  You can’t learn anything if you think you know everything.

Read this.

Patrick Michael Megaro is a criminal appellate and post-conviction relief attorney, who practices in New York, New Jersey, North Carolina, Florida, Texas, and Washington State, and numerous Federal courts.  A native of New York, he started his legal career with The Legal Aid Society, Criminal Defense Division in New York City as an institutional public defender before going into private practice.  As an attorney, he has tried over 50 cases to verdict in various State and Federal courts, and has handled thousands of appeals and post-conviction relief petitions.  He is a partner in the Orlando-based firm Halscott Megaro, P.A. and Appeals Law Group.

Opening Arguments and Summation

To preserve for appellate review an issue relating to an alleged improper comment, a party must object to the comment when it is made and obtain a ruling on the objection.  If a party objects to the comment, but fails to secure a ruling from the trial judge, the issue is waived unless the judge deliberately and patently refuses to rule on the objection.

If the trial judge sustains the objection, the objecting party must make a timely request for a curative instruction or a motion for mistrial to preserve the issue for appellate review. The motion for mistrial must be made before the jury retires to deliberate. Continue Reading

Mark-Twain-Quote-e1525719777428-300x270Know thy past and you’ll know thy future.

This is what makes history so valuable.  If we presume that history repeats itself, knowledge of the past will help us brace for what comes next (Yes, there are lots of problems with this theory, but that’s a discussion for another day).

The problem is, how do we really know what is true from the past, and what isn’t?

There will always be some skeptic out there that will keep repeating the most intellectually lazy show stopper of all — “I’m not convinced.”  I heard a physicist recently claim that he’s not sure “causation” exists, that we cannot know causes.  He thinks the best we can hope for is correlation.  Hum.

Speaking of real life skeptics, a friend of mine has been a judge for a couple of terms and he believes that he is the only conscious being on Earth.   To him, it cannot be proven, ever,  that beings other than himself are actually conscious.  He only knows for certain that there is one conscious being; himself.  Yes, he probably plucked his position straight out of a first year philosophy class, but for whatever reason, its stuck.

As a defense attorney, I absolutely love-love-love a good skeptic.

Remember when R & B singer R. Kelly was accused of making (staring in) 21 counts child pornography for a video showing him, allegedly, having sex and urinating all over a teenage girl?  This sort of accusation brought out the best in comedians like Dave Chappelle.  Chappelle did a sketch where the prosecutors were trying to pick R. Kelly’s jury, and after seeing the video, Chappelle still wasn’t convinced.  You must see this sketch, it is priceless, but here’s the exchange:

PROSECUTOR: Mr. Chappelle, what would it take to convince you that R. Kelly is guilty?

DAVE CHAPPELLE: Okay, I’d have to see a video of him singing “Pee On You,” two forms of government ID, a police officer there to verify the whole thing, four or five of my buddies and Neal taking notes, and R. Kelly’s grandma to confirm his identity. Continue Reading

fingerprints2-216x300Any time several folks get together to form a group, there’s always a risk bad things will happen.  One of the minor annoyances of people “organizing” is that they’ll end up developing their own corny lingo.  Not only do I dislike this sort of thing, but I’m more guilty of it than most (I’m not offended by my own hypocrisy, of course.  Why not aim for good things, even if you don’t attain them every single time?).

My first violation of the English language involves church stuff.   I belong to a church that is guilty of “Christian speak.”  Trust me, if you haven’t heard Christian speak, its annoying.  At its core, this language is basic virtue signalling.

For example, no one calls themselves a Christian  anymore, Christian-speak now has us referring to ourselves as “disciples”, with everyone busy working on their “ministry”.  Yes, this is virtue signalling at its finest.  That being said, this never stops me from poking fun at celebrity virtue signalers.  My church is minor league versus Hollywood.  Just try getting thru a talk show without either the host or guest explaining their commitment to various “causes”.  Again, virtue signalling.  Heck, even me telling you I belong to a particular church qualifies. Yes, I’m a hypocrite.

SIDE BAR: Jesus didn’t use Christian speak, so I’m not sure why churches have adopted such un-Christ-like attitudes.  For example, Jesus promised the thief hanging on the cross next to him that “Today you will be with me in paradise“.   Did this thief chanting some magical Christian speak that opened the doors to paradise?   Most religions claim you can only get to paradise if you belong to their church, their faith, following their rules.  Nobody gets into paradise but us.  We’re the only club members who know “the Truth”, right?  Hum.  I don’t see any of that in Jesus’ words in Luke 23:43.  Most religions have added text to Jesus’ words here, and would now claim that the thief who was promised paradise today couldn’t–actually–get there without doing some mission work, being baptized, and of course the big one–belonging to the correct religion.  Read Luke chapter 23 and I think you’ll agree that Jesus is pretty generous with his paradise admission policy–no magic words and no special religious memberships required.  I’m just saying.

Anyway, science has its own battles with language, and its own battles with the truth.  This plays out quite frequently in the criminal courts, where we have rules on what is considered “science,” and what isn’t.

One interesting battleground for science in the courtroom involves fingerprints.  Its been a few years since I’ve ranted about the so-called science of matching fingerprints, but suffice it to say that an “expert” cannot go up in front of a jury and claim that one fingerprint “matches” another fingerprint.  I know what you’re thinking, I’ve seen a lot of movies, and admitting fingerprints is never a problem, right?  Wrong.  It’s a problem. Continue Reading


Patrick Megaro, Esquire

Howdy Peeps.

Do you know how many requests I get for folks to “guest write” an article?  Tons.  And, I’ve never taken anyone up on this, ever.  I have lots of criminal defense buddies, but I’ve declined their offers.

That being said, my friend Patrick made two good points to me the other day while having lunch at Beth’s Burger Bar.  First, the Peanut Butter Burger will change your life.  Yes, it was almost that good.

Second, I should warn my defense attorney friends about all the problems Patrick sees on the appellate level.  He’s right about this.  Thus, the article below, written by an expert criminal appellate attorney.

That being said, this is an episode of Inside Baseball.  Its for defense attorneys, or those curious souls wishing to peek behind the curtain.

Enjoy Patrick Megaro’s two part warning to we defense attorneys, Part 1 is listed below, I’ll have Part 2 out shortly.

Patrick Michael Megaro is a criminal appellate and post-conviction relief attorney, who practices in New York, New Jersey, North Carolina, Florida, Texas, and Washington State, and numerous Federal courts.  A native of New York, he started his legal career with The Legal Aid Society, Criminal Defense Division in New York City as an institutional public defender before going into private practice.  As an attorney, he has tried over 50 cases to verdict in various State and Federal courts, and has handled thousands of appeals and post-conviction relief petitions.  He is a partner in the Orlando-based firm Halscott Megaro, P.A. and Appeals Law Group.

“This issue before us was not properly preserved for appellate review and is therefore not now cognizable.  Affirmed.”

We appellate lawyers cringe when we see these words written, especially in our own case decisions.  This means that no matter how brilliant the trial attorney was, they did not make a specific, timely objection at the trial level, which has effectively waived their client’s right to appeal that issue.

First, let us start with something we have all (should have) learned in law school:  general, non-specific objections are insufficient to preserve an issue for appeal.

While we all know this, but MANY times we see trial lawyers simple say “objection” or “We object to ____” without going further.

“Preservation of error principles require parties to be specific with their objections so as to inform the trial court of the perceived error.”  State v. Garza, 118 So.3d 856 (Fla. 5th DCA 2013).

This means you have to spell out WHY you object – be it in a motion, a post-hearing memorandum of law, a written notice of objection, or an argument on the record at the appropriate time why something is legally erroneous.  The objection must be SPECIFIC.

Second, the objection must be TIMELY and CONTEMPORANEOUS.  This means that you have to immediately object when something is coming into evidence – sometimes before and after.

The law requires certain objections to made at certain times in order to properly preserve them.  Here are some practice tips for the most common issues that arise during the course of a trial: Continue Reading

IMG_4911-1-e1532203537762-300x112TV shows are everywhere now.  How do you know what to watch?

Years ago, things were a bit easier.  You had three major networks.  NBC, ABC, and CBS.   The most watched show in human history was not the last episode of Seinfeld or MASH, it was the moon landing in 1969.  It is said that the moon landing had a 93% share, meaning, 93% of  Americans who were watching TV that night were watching this historic event (Credit: AJ Jacobs broke this down recently on James Altucher’s podcast).   The Super Bowl is, basically, the most watched television event of recent decades, and it consistently runs a 48% share, just to add some perspective.

AJ Jacobs points adds an interesting twist to this analysis. If 93% of all American’s were watching the moon landing–what were the other 7% of the population watching?  Back in 1969, there were only two other channels to watch.  The other 7% watched The Three Stooges.  True story.  While mankind was making one giant leap, 7% of us decided to watch Larry, Moe, & Curly.

The point is, there are quite a few idiots out there, possibly 7% of the population.  And just so we’re clear, watching The Three Stooges doesn’t makes you an idiot–but if you ignored the moon landing and opted for the Stooges, you at least qualify.

It should come as no surprise that the legal profession contains quite a few Seven Percenters.   Unfortunately, some of these folks are wasting your hard earned tax payer dollars by prosecuting cases with no evidence.  Let’s take a look at some questionable trial practices, as found in the case of Baker v. State959 So.2d 1250 (Fla. 2d DCA 2007).

First, a few true cliches.  There is no such thing as normal.  And, you never know what goes on behind closed doors. Continue Reading

IMG_4236-e1530542832691-225x300We Americans can be a rebellious group.

I’ll go out on a limb here and claim that we’re more rambunctious than most countries.  To prove my point, take the following example.

Think back to the 1970’s.  The whole world is converting to the metric system.  Two north american governments decide to make a big change.    You know, Kilometers instead of Miles.  The whole nine yards.    Canada and the United States agree that its time for North America to catch up with the rest of the world, so both countries pass a law making the metric system “official”.

Now, if you travel to Canada, their signs will say “Ontario — 10 Kilometers”.

If you travel here in the US, you’ll see “Miami — 10 Miles”.

Both countries passed the law.  Both countries agreed to convert.  Why did Canadians follow their law, and we ignored it?

Because, we’re Americans.  We don’t like being told by some Supreme Authority how to measure things.  We don’t like being told what to do.  And this brings me to the topic of the day.

When a letter comes in the mail telling you to show up for court, must we citizens drop everything, fly back into town from our vacation,  and appear in court?  All because a piece of paper lands in our mailbox?

More importantly, what happens if you don’t show up to court?

Continue Reading

IMG_5029-e1529527687928-300x73Everybody who leaves their hometown has left a few favorite restaurants behind.  I left St. Louis almost three decades ago, but I still miss Imo’s Pizza and Ted Drews Frozen Custard.  Every time I visit my hometown, I’m having Imo’s Pizza and Ted Drews (in that order, and probably White Castle later that night).

Unfortunately, Florida doesn’t have a Ted Drews (there’s only one, and as I said, it’s a 1,000 miles away).   The good news is, I have found a substitute.  I really really like Dairy Queen’s Blizzard.  Blizzards are the next best thing.  For those of you unfamiliar with the Dairy Queen menu, a Blizzard is soft serve ice cream with sweets mixed in.  Depending upon my mood, I may mix in cookie dough and peanut butter cups, or bananas, chocolate, and peanut butter.  It’s just tough to say.

Full disclosure:  I have not been compensated in any way to endorse DQ’s blizzard, Ted Drews, or Imo’s.  If I had any sort of inkling that mentioning products would get me some freebies, I would launch into a rant about my love of Porsche and various all-inclusive resorts.

Anyway, back to Dairy Queen.

What do you think the average net worth is of the folks eating at DQ?

Let’s think about how many customers the average DQ can seat.  Maybe 30 or 40 dessert goers, max?  Dairy Queens are typically small.   Could you, possibly, get a good feel for the net worth of the customers inside without ever stepping foot inside?

I have a friend looking for an apartment, and he won’t even tour an apartment inside if the complex doesn’t pass his “parking lot test.”  In other words, if there are crappy cars parked everywhere–he doesn’t want to live there.  Doesn’t matter what the place looks like on the inside.  Same goes for a DQ parking lot, you may be able to gauge the net worth of the folks inside just by looking at the parking lot, right?

Wrong. It is really hard to establish net worth based upon car alone.  After all, the average income of a BMW owner is the price of the BMW.  So, we’re not going to be able to establish an average net worth based upon the parking lot (does knowing the average income of a BMW owner really tell us anything meaningful? Hold that thought).

The good news is, we can still establish the net worth of Dairy Queen customers at a particular store, on a particular day.  Let’s take a look at a Dairy Queen in Nebraska, on Monday, June 11th, 2018.  Continue Reading

Why are some defense attorneys so expensive?IMG_2925-e1508532095556-300x239

Willie Nelson has a great answer to a similar question: Why is divorce so expensive?

Because it’s worth it.

Several decades ago, my friend was the best criminal defense attorney in Orlando–charging $15,000 down on a misdemeanor.  In today’s dollars, that would be $43,447.  Yikes.

Who throws around that kind of money on a misdemeanor?

And, who has the balls to charge that much for a misdemeanor?

That being said, a Hermes Birka bag will set you back $65,000.  Yes, a purse for $65,000.  If you were to try to go buy one now–you can’t.  Sorry to get your hopes up.  As the story goes, Hermes pretends to be sold out even though the store always has a couple new Birka bags in the back.  Hermes purse pricing strategy is similar to my friend’s pricing strategy–except that my friend was worth every penny.

Ok, back to my very expensive defense attorney friend.  He “had it all.”  A house in Windermere? Check.   An expensive boat? Check. An airplane? Check.  No, he wasn’t secretly some closet personal injury lawyer (that’s where all the money is–for those of you who know anything about criminal defense work, this isn’t a get-rich-quick scheme).

So, after years of commanding top dollar, my friend’s fees dropped dramatically.

A first time misdemeanor DUI that may have cost $20,000 was now running $7,500.  And a year later, that same first time DUI fee plunged to $2,500.  I’ve been charging about $2,500 for a first time DUI for over 15 years, go figure…. Continue Reading

earth-moonWe live in an absolutely huge universe.  I don’t want to get too Carl Sagan on you, but let’s face it, the more we know about the universe—the bigger it gets.

We’ve known for a while that our universe is full of stars.  And these stars form galaxies.  There are billions and billions of galaxies that each contain billions and billions of stars.

Add to that a boat load of planets orbiting all those stars.  That’s right, we’ve now discovered planets everywhere.

The funny thing about all of this is that Earth is the only place we know of where atoms are observing atoms.  Amazing, right?  All this stuff in the universe, but only one place where the “stuff” is observing the other “stuff.” (If we had all the time in the world, I would launch into a short quantum physics discussion, in particular, how “conscious observation” effects physics.  Or, we could discuss Fermi’s Paradox.  Now, my web people tell me I’ve got to get to a legal discussion eventually–but they don’t really read what I write–so let’s dig deeper with the knowledge that my web people aren’t reading this.  Anyway, the physicist Ernico Fermi was at a science conference where the white coats were giddy over their predictions as to just how much extraterrestrial life must be out there besides us—given how big the universe is.  He was the Debbie Downer of that physics conference, posing the simple question: “Where is everybody?”)

Observation is a funny thing.  Even when it comes to criminal law, observation is just as important as it is in science.  The police cannot just go off to search a home based upon a hunch, they have to observe some bad stuff and report it to a judge who may then issue a warrant.  If you’ve seen as many criminal cases as I have in my 25 years of defending, one thing is for certain:

The police are watching. Continue Reading

conference-pic-e1526767430499-300x208Awww, come on guys, it’s so simple maybe you need a refresher course.  It’s all ball bearings nowadays.  Now you prepare that Fetzer valve with some 3-in-1 oil and some gauze pads, and I’m gonna need ’bout ten quarts of anti-freeze, preferably Prestone“.  — Fletch (film, Chevy Chase)

Have you ever met someone who thinks they know what they’re talking about, yet something in your gut (your BS detector) tells you they don’t really have it all figured out?

Scientists are notorious for this sort of thing.  They throw around a few equations, add a few big words, and we all assume they’ve figured something out.  Cops are as bad as scientists when it comes to acting like they’ve got it all figured out—but more on that later.

There are several scientific fields that can trigger a reasonable person’s BS detectors.  For example, evolutionary psychologists claim that people love golf because the open spaces make humans feel safe.  Hum.  People get paid to come up with this stuff?  How do I get in on this?

Neuroscience has jumped into the pure speculation game, as they now claim that everything is reducable to brain activity.  Hey, you fell in love and finally engaged in that special first kiss?  Well, it really isn’t that special, neurologists will tell you that they’ve found the “first kiss” neurons located in the bottom right corner of the frontal cortex.    Oh, you had a religious experience?  No you didn’t.  In the most condecending tone imaginable, some neurologist will pat you on the head like you’re their pet doggy, and explain that this life changing experience was just temporal lobe epilepsy.

But when you dig deeper into these so-called scientific explanations, they’re really not explanations at all.  They label things, sure enough, much like an engineer can label the data transmissions of your home modem.  But they’re not really telling you anything about what’s really happening.

Recently, I saw a neuroscientist “explain” how they’ve figured out what is going on during a psychedelic experience.  Psychedelic drug research is super interesting, and it utilizes drugs like psilocybin (mushrooms), MDMA (extasy), and DMT/Ayahuasca.

Anyway,  the “breakthrough” discovery is this: all of these drugs react on our brain’s 5-HT2B receptor.  Amazing, right?  That’s an impressive word, 5-HT2B receptor.

But there’s only one problem with this discovery.

Once a psychedelic drug hits the brain’s 5-HT2B receptor—we know absolutely nothing about what happens next.  It’s like some doctor “discovering” that once I drink some water that same water will eventually come out another orface.  Ok.  But what happens in between?  Does the water go to a kidney or two?  Is there any sort of processing?  The only thing we know about the brain’s reaction to psychedelics is that they hit the 5-HT2B receptor.  All knowledge ceases right there.

Still, its impressive to listen to neurologists toss around the term “5-HT2B receptor”.  Just saying this word increases your perceived IQ by several points, but fundamentally, this “discovery” sounds only slightly more credible than Fletch’s explanation of the Fetzer valve.  Continue Reading