Thursday, January 21, 2016

HOW TO PERSUADE PROSECUTORS NOT TO FILE CRIMINAL CHARGES AFTER A PINELLAS COUNTY ARREST IN CLEARWATER, FLORIDA

An arrest merely means that a police officer believes that a crime has been committed and that the arrested person was the perpetrator. Yet we all know too well that officers just like each of us are as prone to making occasional mistakes. When you consider the stress of their jobs, the need to protect the public as well as themselves from violence and their desire to implement fast-paced decision making, mistakes are often part of the process of any typical arrest. In fact, the chances for mistakes or inappropriate behavior from an officer increases with the significant of the felony or misdemeanor being investigated.
Townspeople locked in Mayberry jail.
Deputy Barney Fife arrests Aunt Bee 

That is why an arrest in itself is not a significant factor in whether criminal charges will actually be pursued by the prosecutors at the State Attorney's Office. The way to think of the officers and deputies of the Clearwater Police Department and the Pinellas County Sheriff's Department or other police departments is that their investigations act as the initial filters in criminal cases. They must decide if a crime has been committed and if so whether an arrest will be made. Factors which result in an arrest by local law enforcement include the severity of the alleged offense, whether the crime was violent and whether the defendant is likely to flee.

Yet in practice every felony will eventually result in an arrest tho the arrest may be postponed to an agreed upon time after negotiations for a system walk thru with fingerprinting and the posting of an appropriate bond under certain circumstances. Law enforcement may choose not to arrest immediately but to proceed based on an arrest warrant, then it's important to learn how to turn yourself in on an arrest warrant without spending time in jail. Most misdemeanors need not result in an arrest unless. However, officers in Florida must make an arrest when called to battery domestic violent cases, DUI or driving while license suspended or revoked for public safety reasons. 

Once the police have made a decision to arrest, then the State Attorney's Office makes a decision as to whether to file the case. Just as important a decision must be made as to how to file the case, should a felony be reduced to a misdemeanor even if it is filed? If the state elects to no file the case it acts as a unilateral dismissal not requiring permission from any Court. A notice of the dismissal is simply filed with the clerk of court and posted into the file. 

The criteria used by the prosecutor to file is twofold. First, can the criminal case be won at trial. Second, is filing the charge just. As you can imagine a skillful defense lawyer will bring every possible argument in persuading the prosecutor not only that the case can not be won at trial but that justice demands that the case be no filed.

Tuesday, January 05, 2016

WHY OUR CRIMINAL JUSTICE SYSTEM TOLERATES UNFAIR RESULTS EVEN FOR THE INNOCENT


In American criminal law is it possible to have justice without fairness? The unambiguous answer from our United States Supreme Court could be viewed as almost un-American. After all how can there be justice unless it is laced with fairness?

Yet our Court has often ruled that for expediency, also known as judicial economy, proof of absolute innocence - even for a defendant facing serious consequences such as the death penalty - is not sufficient reason alone for the Court to address a case.
Even this cold Lady Justice
is presumed innocent till proven guilty.

Thinking about the lawful definition of justice in America today leaves little room for questions of fairness. Instead the Court looks to finality. The need to always be moving forward with an ever lengthening line of criminal cases persuades the Court that each case must be resolved within its given framework of available time. When the clock runs out, the sentence stands for all time, innocence be damned. The prevailing law for criminal justice in our country is justice as convenience rather than justice as fairness.

And that makes the occasional call for fairness from a defendant's family member years after some obvious abuse easy for the criminal justice system to simply brush aside. The likelihood of success in opening a long ago closed case becomes a game of finding some method to lever the case open. It has nothing to do with guilt nor innocence. 

An example of the quality of leverage required to reopen a change of plea would be finding proof thru the Court Reporter's transcript of proceedings during the change of plea that the judge failed to ascertain if the defendant was affected by medication during the process of the plea. Other examples that could result in a plea being overturned would be incompetent counsel or not knowing the English language. In Florida most judges read questions and await responses with further probing questions when in doubt about the integrity of a plea with the goal of making certain that someone who pleads fully understands what he is doing as well as the consequences of the plea. 

If there was a trial by jury and the appeals process has run its course, then the chances of finding some lever to reopen a case are even more remote. Clearly once a person is found guilty there can no longer be any presumption of innocence. Unfortunately arguments based on fairness such as one that the defendant is actually innocent will be of little use. Allegations of unfairness and even proof of innocence will not likely to change the result of a criminal case. All of this means that the best chance for success in any criminal case is at the beginning. 

Monday, December 14, 2015

FACTORS PUSHING PINELLAS COUNTY FLORIDA TO DECRIMINALIZE SMALL QUANTITIES OF MARIJUANA

Many of the states and major cities in America have decriminalized marijuana with no backlash of an uptick in crime. Now major cities and counties in Florida are finally taking notice by pushing for their own decriminalization in an effort to focus law enforcement on more serious drug and violent crime offenses. But for many areas in the State of Florida avoiding harsh penalties for possession of even small amounts of marijuana is difficult. Yet resources are being wasted in a state that recently admitted that there were literally thousands of backlogged rape kits which the Florida Department of Law Enforcement has failed to test. Decriminalizing marijuana would seem to be an effective way for the state, cities and counties of Florida to better utilize limited resources.


Just give me the damn marijuana ticket, officer!
In Florida Miami-Dade, Broward and Palm Beach Counties have successfully decriminalized small amounts of marijuana. Instead of branding countless otherwise law abiding citizens as criminals these counties fine those caught with small quantities of marijuana. Councilmen in St. Petersburg are pushing their city attorneys to draft an effective ordinance transitioning toward fines rather than criminal sanctions for possession of marijuana in weights of 20 grams or less within the city limits.

Will this progressive city action have enough leverage to force Pinellas county do something as well? The Pinellas County Sheriff seems to be a stumbling block against reasonable change. For example, after initially saying he was for medical marijuana, he came out forcefully against the actual medical marijuana constitutional amendment by implying that illegal pot and other substances would flood the safe streets of Pinellas if it passed. Clearly, he prefers having more arrests as higher stats from misdemeanor and felony marijuana arrests fuel his arguments for ever greater funding even at a time when studies show that violent crime is down in Pinellas County. The Pinellas county commission should direct more police funding toward reducing violent crime or support a capable sheriff who will.

Ultimately it's a question of fairness. Do we really want nosey officers smelling for marijuana to avoid procuring necessary and proper search warrants? Is it fair that a college student in Miami with a small amount of marijuana is treated differently than a similar student in Largo or Clearwater? Is it fair to spend limited law enforcement and prosecutorial funds on a nonviolent offense that's legal in over half the country? Is it fair to make rape victims wait for justice because the State of Florida does not have enough money to fund thousands of backlogged rape kits?

Tuesday, December 08, 2015

HOW PROSECUTORS CONTROL & DIRECT AMERICAN FEDERAL GRAND JURY INDICTMENT DELIBERATIONS

In a well-known yet hidden truth of federal criminal law, federal grand jury's don't indict people - federal prosecutors do. It's the United State's prosecutors aided by government agents from the FBI, the DEA and fraud inspectors from a variety of Government agencies who bring cases to American grand jurors and direct the deliberations until the desired indictment is delivered. 

Grand Jury with victorious Prosecutor
after delivering Indictment
The grand jury hears only the evidence deemed worthy by the government. In practical terms this means that unless the prosecutor does not want an indictment, little or no evidence that could help the defendant will ever be given to members of the grand jury. It's an unfair process, but of course it's meant to be. 

The objective of an effective prosecutor is first to mold the charging document or indictment. During that process the prosecutor seeks to iron out or at least gain useful knowledge of possible defenses to a potential criminal case. It's not unusual for the grand jury to hear snippets of evidence of uncharged misconduct over a long course of time, even for weeks or months, especially in complex federal conspiracy and trafficking cases or complicated white collar fraud cases, until the prosecutor is satisfied that the case if contested by the defense can still be won at federal trial or better, that the defendant in the case can be forced to plead guilty. It's rare that the grand jury members will have the presence of mind, will power or strength of character to stop an inappropriate indictment from being issued by an ardent prosecutor. 

After all, the members of an American grand jury are relying on the prosecutor to not only give them the appropriate federal laws allegedly being violated, but also to provide the facts necessary to support a conviction under those laws. Nor is it likely to be considered prosecutorial misconduct for the federal prosecutor to unduly influence the grand jury's decision-making process as it's built within an often unfair federal criminal justice system that has a very high rate of success in forcing guilty pleas since many defendants come to believe that the criminal justice system is rigged in the government's favor.

In the federal prosecutions there's incentive to overcharge defendants at the grand jury level in order to gain leverage over defendants and to force a guilty plea with co-operation to indict other defendants. In fact in the Middle District of Florida in Tampa a defendant may receive a target letter, that advises the defendant that a grand jury has been convened to look at criminal conduct with the implicit threat that failure to respond, retain the services of a federal defense attorney and co-operate may result in a federal indictment. As a practical matter the prosecutor has such control and direction of the federal grand jury that the threats must be taken seriously. After a federal indictment the defendant with help from a federal criminal defense attorney must make an important life-changing decision, whether to plead guilty or have a federal trial.

Monday, December 07, 2015

HOW THAT FOOL JUDGE HOLDER AIMS FOR JUSTICE BY TRUMPING THE CRIMINAL SENTENCING GUIDELINES

Judges - some are good, some are bad, some are smart and still others are just fools. Let's take a look at Circuit Judge Holder, a fool if there ever was one. For most criminal judges in Florida finding justice for criminal defendants is quick and easy, it's all about calculating the guideline ranges and like a machine spitting out the highest prison sentence possible. Smart judges know you can never give too much prison time to a defendant as it never pays in the end to show too much compassion or to look too deep into the facts and circumstances of a case. Real justice practiced by smart judges in Florida is all about being re-elected preferably without any opposition. The best way to do that is not to take any undo risks with those damned defendants who'd enjoy nothing more than spoiling their breakfast newspaper time with some new sordid crime followed in section B.
Donkey Wonder Fortune Teller Calculating Machine
 Used By Florida Judges to Calculate Prison Terms

Who knew that in the west coast of Florida there could be a judge who is not a mere guidelines and scoresheets calculating machine? Apparently this fool, Judge Holder, believes that justice means weighing all the facts surrounding an incident not only from the prosecution, the police, the witnesses and the victims, but all of the circumstances of a crime including even the possible motivations and incomprehensible suffering of the very defendant who committed the crime. 

In a recent case before Judge Holder in the special court for war veterans he ruled on the fate of a veteran shown to have post-traumatic stress disorder. The young veteran, a student at the University of South Florida, was charged with discharging a firearm, aggravated assault with a deadly weapon and criminal mischief. In his case, as in many so-called violent crimes, no one was actually hurt with his psychological issues combined with alcohol clearly shown to be a contributing factor.

In fact the only life seemingly ruined because of the incident was that of the young veteran who faced not only the grim prospect of years in prison after being branded a violent criminal for the rest of his life, but also of living a life with fewer job and educational opportunities as he'd been expelled from USF.

Because of the proven PTS the Judge Holder gave no jail time despite Florida sentencing guidelines dictating prison. Instead he gave two years of house arrest with a reasonable provision of his sentence being that the veteran receive regular help and therapy for his PTSD. 

But merely making sure that he'd given the young veteran a fair sentence wasn't enough for this judge. He took the time to write members of the board of the University of South Florida and to speak to them in urging the university to allow the young veteran to get his degree. Of course they ignored the judge, after all he's a fool. Just because he cares about justice, compassion and second chances why should he assume anyone else does? This is Florida, after all.

Wednesday, December 02, 2015

WHY THE JURY NEVER HEARS THE UNEMBELLISHED TRUTH IN CRIMINAL TRIALS IN TAMPA BAY FLORIDA

Why is it that criminal trials are often the least likely place one can expect to find unembellished truth? Walk into any courtroom and you'll hear the judge harangue defense lawyers, prosecutors and witnesses with long lists of which bits of evidence, facts and circumstances are proper to present. Much of this happens outside the hearing of those lost-looking jurors, though as the trial progresses they become all too aware of what is obvious to everyone else in the courtroom - they're not really hearing all the evidence.
painting of sleeping jury in Clearwater, Florida courtroom
Pinellas County Jury searches for Truth

Clearly it's laudable that any good judge aims to give the defendant a fair trial, while other judges seem to not so much want a fair trial for the defendant a fair playing field where the prosecution always wins. Either way a judge will cloak most evidentiary decisions with language that's based on keeping out possible prejudicial information that might inflame those innocent jurors. The quest for fairness may entail not letting defense counsel ask worrisome questions about prior police misconduct or a judge could prevent prosecutors from bringing up a defendant's prior criminal history at least until the defendant takes the stand to testify in his own defense.

But as the judge parses thru layers of testimony and evidence - allowing this, denying that - those familiar with the actual facts of a case will find that the facts presented to the jury are oddly different than what really happened. How it happens may be a mystery but it always does. The mysterious result is damaging not only to the integrity of those involved, but also to the ends of justice itself. 

In criminal cases there's always a detective or police officer who testifies. These witnesses see that the actual facts become distorted until over time their sense of absolute truth and vital honesty erodes. Unfortunately all of those tied to the criminal justice system especially judges, defense attorneys and prosecutors suffer from observing the constant failure of truth. In fact, I even fear for the bailiffs who day after day hear multiple versions of facts - all but the truth - like courtroom clocks giving false time.