Wednesday, May 25, 2016


A new report from the Justice Department's Inspector General finds that federal prisoners are routinely held for months, and for a few unfortunate inmates, even years passed the release dates of the sentences handed out by federal judges. In effect the incompetence of the Federal Bureau of Prisons (BOP) is arbitrarily lengthening prison sentences for those caught within the web of the criminal justice system. Every defense lawyer and every federal judge should be angered by the report. 

Federal Prisoners Singing
for Freedom
At federal sentencing hearings prosecutors and defense counsel often argue over minute details of how to apply the infamous sentencing grid of the federal sentencing guidelines in which the number of levels given to the defendant may add months or years of imprisonment. Despite numerous Supreme Court decisions stating that Federal Judges have sentencing discretion, the truth is that the sentencing guidelines dictate most federal sentencing decisions and that federal judges have limited discretion in sentencing

Prisons must inform federal judges in some circumstances of early releases of inmates, but there's no set procedure by BOP for informing judges of late releases that may require prisoner compensation and that randomly circumvent the federal judge's sentence. In fact neither the judge, the defense lawyer nor the prosecutor may ever find out. The report notes that the federal prison system does "not have a process to consider whether to notify the sentencing court of an untimely release." Yet the report also specifies that the prison system does have a process to timely notify the relevant federal probation office, despite making no effort to notify the federal sentencing judge, the prosecutor nor the defense counsel. This makes no sense. If all the parties were notified at least defense counsel would have an opportunity to file an emergency motion for a renewed sentencing hearing. 

Clearly BOP has been given too much arbitrary power. No wonder so many federal defendants refuse jury trials because they believe the game of justice is rigged for guilt. Everyone involved in the criminal justice system needs to rein BOP in by first requiring BOP to give notice of any unilateral enhanced sentencing to all of the parties involved and second to establish judicial review even if limited in scope of BOP release date procedures. Another important step would be for BOP to send its release date schedule to all concerned parties within ten days of an inmate's arrival into the prison system and to require any subsequent amendment of that date to be given to all parties within ten days of the change with an explanation of why the date was changed and how the new date is consistent with the federal judge's original sentencing order.

The report is another blow to the notion of fair sentencing in America. At federal sentencing defense counsel should ask the judge to include in the sentencing order time limits for BOP action on release dates with demands that the federal judge, defense counsel and prosecutor be notified should the release date be changed with an explanation as to why it was changed. 

Tuesday, May 10, 2016


Judge Susan Schaeffer with those who enabled her during her long career might have hoped time would erase her history of abusive behavior as a Circuit Judge, but I'm obliged in decency to take up the task of reassessing her judicial career. She was not as one local paper put it "the best of the best" rather she embodied the worst qualities any judge could have. She was, for those of us who actually practiced before her not a judge worthy of the praise and respect we held for Judge Mark McGarry

Long Sentences for an appointment to the
Supreme Court of Florida
Good judges are people who value justice laced with a keen sense of fairness. They're humbled by the aspects of their work that compels them to daily make god-like decisions on the fate of other people. That uncomfortableness of judgment naturally comes from an awareness that no amount of knowledge is ever complete. Those who don't possess an inkling of the limits of self awareness are unfit to wear the black robe of judgment. 

Judge Schaeffer, a graduate of Stetson Law School, often scorned all the fools she had to endure in hearings or trials, even belittling one particularly earnest Harvard Law graduate soon after the shell-shocked lawyer walked out of her courtroom. Her unlimited hatred and scorn was clearly roused by that Harvard degree, something she neither had the intelligence, wit, nor grit to acquire

Yet there was never a moment in her courtroom when she did not endeavor to prove she was the smartest person there. Judge Schaeffer was the star of every motion, the center of every hearing and the brilliant decision maker for every trial in her courtroom. The facts, the lawyers, the defendants were of little consequence - it was her story that counted. To get the best possible results sharp lawyers expressed every argument within the limited framework of her self perceived brilliance showering their presiding judge with the false praises that only made the malignancy of her megalomania grow. 

It is now universally understood that millions of lives were needlessly ruined during America's failed drug war. Countless nonviolent defendants had their freedom and dignity needlessly taken. During that time every Florida judge's moral center was tested. Judge Susan Schaeffer failed that test. She often made it clear in drug minimum mandatory cases that she wished she could give even more prison time. 

At the time even attorneys with the prosecutor's office were shocked at the level of her ugly ruthlessness. Yet this was a judge who believed in the political necessity of giving maximum sentences. Judge Schaeffer, a former agent of the Internal Revenue Service, abused her new power to sentence harshly as a battering ram to further her career in the hope of being appointed to the Florida Supreme Court. In her view thoughtful, deliberate and fair sentences were given only by judges who were fools.

One judge noted that at a judicial conference Judge Schaeffer clearly labored under the influence of alcohol and/or drugs as she bragged that the Governor would appoint her to the Supreme Court, "it's in the bag, damn it...yea... in the bag." The appointment instead went to someone who graduated from a better law school,  displayed better judicial temperament, had greater experience and who apparently managed to keep a sober disposition at judicial conferences, restaurants and golf courses.

Sadly she still possessed the Circuit bench and her failure to win the appointment only made her more hostile and unpredictable. As she bullied and blindsided lawyers they'd mutter - Why is she so angry? Is she mentally unstable? Is she under the influence of drugs and alcohol? 

Shrug your shoulders and wonder why as you walk into the darkness; all I can think about are the hundreds of people convicted of nonviolent crimes in her courtroom who still wait out their lives imprisoned in needless misery.

Monday, April 11, 2016


Officers in Tampa Bay Florida are making far too many unnecessary arrests. Proper policing should result in the arrest of a suspect only when the officer has reason to believe that the defendant is either a danger to the community or is likely to fail to appear for court. An arrest may not be unreasonable for investigations of violent crimes such as domestic violence, aggravated battery or aggravated assault.
Making an arrest
is always risky.

It's not unusual for officers to abuse the very process of making an arrest. Often an arrest for nonviolent crimes is an overblown tribute to the arresting officer's ego. The confrontation and resulting confusion of making an arrest places both the officer and the defendant in imminent danger of harm. Many inconsequential incidents snowball rapidly because of an arrest or mere threat of an arrest. Smart officers take a step back before making an arrest decision to unemotionally determine whether the defendant is a threat to the community or a threat to abscond.

Why do officers really make so many needless arrests?Unfortunately officers are often rewarded by their supervisors for making foolish arrest decisions. In fact rising thru the ranks is facilitated by a mentality of "us versus them" rather than by a love of the community they serve with respect for every person in it. Rather than being reprimanded for having a high rate of making arrests the officers are praised as being especially competent or brave. Clearly, it's helpful to have effective leadership that makes it clear to every officer that the number of arrests an officer makes should never be a factor in advancement. In fact the act of making an arrest should be the least performed action of any good officer.

Yet when you look at the statistics it's the same troublesome officers who arrest too often who also make themselves the victim of crimes by arresting defendants for crimes such as Battery on a Law Enforcement Officer or Resisting Arrest with Violence. In fact in most police agencies the majority of police officers are reasonable, looking for the best way to resolve volatile situations without escalating violence. That small percentage of psychologically damaged officers who enjoy arresting and intimidating defendants for nonviolent crimes should be drummed out of policing. 

No wonder Florida jails such as the scandalous jail in Pinellas County, Florida are over-crowded and unsafe. The sheriff should immediately make it clear to every deputy that arrests should be reserved only for those who are violent or when the giving of a notice to appear to a defendant is unlikely to succeed. 

Wednesday, March 30, 2016


It's best to take action now
so you won't be arrested later.

It's the gift that keeps on giving, that old arrest warrant you may have forgotten about but that somehow never forgets you. Even if the alleged misconduct embodied in the warrant was years ago that warrant is in the database of every major police agency in the United States. If you're stopped for a ticket or hit in an accident or report a crime the police officer who talks to you has access to the fact that there's a Judge in Pinellas County, Florida waiting to see you. And that police officer is apt to take immediate action by arresting you, in fact depending on the alleged misconduct in some jurisdictions the officer could be punished for not arresting you.

Before this era of fast information computing it may have occasionally been possible for a misdemeanor or even a nonviolent felony warrant to casually slip thru the mountainous warrant paperwork. Not any more. Today that incident from a barely remembered Florida vacation will eventually have to be faced. The question is will you choose the moment to face it or will there be a random arrest when you least expect it at the worst possible time.

You may be wondering what is an arrest warrant? An arrest warrant is the written manifestation that there exists probable cause to believe you have committed a crime and that you must answer for it. The underlying truth of the alleged criminal act is not at issue. The only attributes of the warrant that can be attacked are the validity of the warrant and the underlying identification of you as the target of the warrant. 

In practice this means that if there is an arrest warrant for a misdemeanor simple battery charge or a felony possession of drugs charge it's not possible to attack the facts and circumstances of the underlying battery or possession of drugs until after you turn yourself in on the arrest warrant. That's because a hearing of the facts of the case can not begin until every party in the case including the defendant are actually before the judge. One way to think of an arrest warrant is that it's an unavoidable invitation to become a party to a criminal case. But if your name, date of birth or other identifying characteristics are wrong then a judge may look to the warrant to see if it is actually for you. Further, a warrant may be attacked directly or prosecutors may withdraw an arrest warrant if it can be established that law enforcement officers made no reasonable effort over an extended amount of time to actually enforce the warrant.

What should you do if there is a warrant for your arrest from Pinellas County, Florida? As a criminal defense lawyer I look to the following factors in accessing what to do next: the severity of the charged offense, the length of time since the offense and the integrity of all of the identifying information on the warrant. If the charge is not too serious or nonviolent it's likely possible to schedule a time for you to turn yourself into the authorities and later attend a hearing where the judge and prosecutor formally attend to the merits of the case. Once you've become a party to the case then the case will end either in dismissal, plea or trial by jury. My goals for you will be to find the best possible solution not only in disposing of the warrant but also in finding the best solution to the underlying allegations of criminal misconduct.

Wednesday, March 09, 2016


When confronted with a federal investigation it's vitally important for defense lawyers and their clients to fully understand the various factors used by prosecutors in making indictment decisions. Not every case referred to federal prosecutors finds it's way to the grand jury. There is in fact a natural process of deliberation, decision making and evidence gathering based on each district's prosecutorial priorities. Each district is guided not only by the prevailing priorities of the federal government but by local priorities.

Grand Jurors
Deliberating in The Middle District of Florida
In the Middle District of Florida the decision making process for seeking indictments is short circuited, by which I mean the process almost always leads to the seeking of indictments no matter how soft or hard the quality of evidence, in certain types of cases. There are four types of cases prioritized to the extent that there's very limited prosecutorial discretion in taking the case to the grand jury for an indictment. These are Trafficking in Drugs, Identity Theft with tax refund fraud, child pornography and firearm violations. Each of these cases arrive at a prosecutor's desk amped up, glowing and especially weighted toward seeking the harshest possible indictable offense with the longest sentences. 

America's war on drugs means that trafficking in drugs is both a local and national priority especially in that the Middle District of Florida is designated as one of the few venues for trials of the Central American drug war involving the United States Coast Guard taking down of go-fast vessels and drug carrying submarines with huge quantities of cocaine. Identity Theft is a local priority because it's so rampant in the Tampa Bay Area that even local law enforcement agents who used driver's license information for identity theft have been indicted. Child pornography and firearm violations are national federal priorities. 

In essence there is much less ability for the defense to influence indictment decisions in these four types of cases, because the prosecutor will have limited discretion. Further, in these four groups the FBI, ATF or DEA agent will be more knowledgeable as to strengths and weaknesses of each case than the assigned prosecutor. 

Other cases will gain or lose urgency based on the significance of the alleged crime, any possible threat to the community and media exposure. In these cases only the statute of limitations or staleness of evidence limit a prosecutor's ability to more thoroughly investigate possible criminal conduct before seeking an indictment.

Thursday, March 03, 2016


Before the dust settles here's a few words about Justice Scalia's odd passing while at a very wealthy man's luxurious Texas hunting lodge. Odd because the Supreme Court Justice though a lover of the second amendment and every literal word of the constitution was not a hunter nor was this solid family man among his family as he died. 
Bring out another for our favorite Judge!

The owner of the ranch said he'd only just met the judge - it was a mutual friend who snagged the justice an invitation. Yet how unusual and unfortunate that the Supreme Court declined to hear a case involving a business owned by that ranch owner last year. What a small world it is. Yes, all of us I suppose, routinely entertain folks whom we don't know with extended stays at our ranches. Perhaps the good judge made it a habit to seek shelter for a few nights among random American citizens to better comprehend life as lived by typical folks to fuse this knowledge with ever better legal opinions, lifting us out of the dark mire of our dismal days toward the light of his constitutional analysis.

One wonders how the judge happened to find himself among people so rich, so different from those with whom he must have enjoyed spending his time. Yet when away from his family and his true friends - folks just like you and me - he chose to be with the very wealthy. What was he doing there? 

Perhaps with his famous wit he was enjoying the role of making these very rich men smile. The judge known for his brilliant, witty opinions used his interpretation of American law as a powerful shield protecting the wealthy, the powerful, the polluters, and the election riggers from civil and criminal liability. But these rich folks could not be expected to understand his opinions much less to actually read them, so at their leisure he came to them as humble as any court jester just to bring them happiness.

This was a courageous judge, isn't that what they're calling him, this man who destroyed the weak and helped the powerful gain ever greater strength. He must have gone to the rich rancher's large estate to guide these wealthy men. Perhaps in his righteous zeal he spent his last day on earth with the very rich only to be a thorn to them: "Again I tell you. It is easier for a camel to go thru the eye of a needle than for a rich man to enter the Kingdom of God…

Maybe he said it with a mirthful wink while downing his final bottle of 1982 vintage Chateaux Lafite-Rothschild, after all, to us he was a Supreme Court Justice, but to those whom he served so well, he was just another obedient court jester.