Thursday, July 24, 2014

How Prosecutors Use & Abuse Federal Prisoners' Emails To Defense Lawyers

The New York Times recently reported that federal prosecutors are using federal inmate emails sent to their defense lawyers as evidence of wrongdoing. The evidence is being used as additional leverage to force pleas of guilty for those not yet convicted and during sentencing hearings for those already convicted. 

Although many jurisdictions are divided as to whether this evidence is permissible some federal judges are accepting the notion that defendants in custody waive any rights to private correspondence with their defense lawyers thru email.
In the Middle District of Florida in Tampa most federal prisoners are placed in the Pinellas County Jail in Clearwater while awaiting trial. But if convicted the defendants are hastily sent to Citrus County to await sentencing. Neither the Pinellas nor the Citrus jail offers email for defendants. 

Once federal defendants are transferred to a federal facility under Bureau of Prison guidelines then email is provided. Many defendants may be under the false impression that their email to their defense counsel is protected under attorney-client privilege.

All telephone calls to and from prisoners in Florida prisons are recorded. All traditional mail to and from prisoners is opened not only to stop contraband from entering the jail, but in an effort to make certain that the mail is not used to further any criminal conspiracy or enterprise. Telephone calls and traditional mail are often used as evidence in federal and Florida courts against prisoners. 

So how does a defense lawyer conduct a defense if his client in incarcerated in Florida? It doesn't matter whether the client facing a life sentence is charged with a federal conspiracy to traffic in cocaine with 10,000 pages of evidence or if the client is facing a simple battery misdemeanor charge with two pages of evidence. The evidence will be discussed in the following manner:

Upon entry to the Pinellas County Jail your defense attorney is given access to a small, gray, grim room which is presumably free from eavesdropping or other intrusion. The lawyer and his client work from two metal chairs and an old folding game table. Alleged first degree Murder charge? Game table. This face to face meeting place is the only method of safe communication provided for any alleged offense in Pinellas County. 

Yet much of the correspondence and communication in America today is conducted via email. All prisoners in both federal and Florida prisons should be given unrestricted email access if not to their families and loved ones, at least to their defense lawyers. It would even free up the wait time for the meeting rooms which are often filled.

The most important aspect of the lawyer-client privilege is the ability to communicate. Without a free exchange of ideas between defense counsel and client the lawyer-client privilege is meaningless. Lawyers for prisoners should be able to routinely send and receive emails from those they represent without fear that the emails may compromise clients in the future.

Wednesday, July 23, 2014

What Is The Likely Sentence That Will Be Imposed By A Judge For A Florida Drug Arrest?

Marijuana, hash, meth, cocaine, oxycodone pills are all sentenced harshly under Florida's strict drug laws in Clearwater, Pinellas County, Florida.

I'm often asked about the likely sentence someone could receive for various drug offenses in Florida. Many factors dictate how much discretion a judge may have in providing a sentence that does not punish too harshly. 

Here are the five most important factors which will be taken into account by the sentencing judge in the first assigned courtroom of if moved to the new Pinellas County Drug Court:

1. The type of drug is an important factor in sentencing. There are many illegal drugs. A drug such as heroin will be more severely punished that a more benign drug such as marijuana or a prescription drug.
2. The amount of drug is a very significant factor in drug sentencing in Florida. A sentence for drugs will be based on the quantity of drugs possessed. Quantity of drugs can be based on the sheer weight of drugs or can be measured by the number of pills possessed by a defendant. If the quantity attributable to a defendant is large enough, then the Florida sentencing guidelines may be trumped by a minimum mandatory sentence which the judge must give under Florida's harsh drug sentencing laws. For example, only a handful of oxycodone pills will trigger a three year minimum mandatory sentence. Although marijuana is more benign than many other drugs, someone who is raising just a few plants may be charged with having a grow house which would require the judge to give a long sentence of imprisonment.
3. The criminal history of the defendant is always a factor in drug sentencing in Florida courts. Someone with no prior drug arrests may be eligible for treatment rather than face more severe sanctions such as prison. However, the judge must take the Florida guidelines into account when sentencing. This means that someone's prior record even for non-drug offenses may outweigh the need for treatment forcing the judge to give a severe sentence.
4. If weapons, firearms or guns were found incident to the arrest for drugs, then you're expectation should be that the prosecutor will ask the judge for a harsher penalty. In Pinellas County, Florida additional charges may be filed or additional time given at the sentencing hearing in your Clearwater courtroom. While in the Federal system in the Middle District of Florida in Tampa the government will ask the judge to give an additional five years on top of whatever the sentence would have been.
5. Finally, if there is an allegation of violence during the use or distribution of drugs in Florida, it's likely that the sentencing judge will use this as an aggravating factor to give a higher sentence. For example, an arresting officer who claims that he was battered during the course of the investigation will not only file an additional felony charge of Battery on a Law Enforcement Officer, but will ask prosecutors to give additional punishment at sentencing.

As you can see there are many variables in any drug charge which may dictate a future sentence. It's important to have a criminal defense lawyer look at the facts of your case to insure that you receive the lowest possible sentence by making arguments to reduce the quantity, quality and relevance of any drugs that may have been found in your possession.

Monday, July 21, 2014

Nearly 50,000 Current Federal Prisoners Will Have Their Drug Sentences Reduced

Nearly 50,000 federal prisoners will receive a two level drug reduction that on average will result in more than two year reductions of their original sentences.

Federal Sentencing HandbookThe Federal Sentencing Commission unanimously voted to retroactively apply the Attorney General's recent decision to grant two level drug reductions in federal drug cases to achieve greater fundamental fairness for those already sentenced. Although the Sentencing Commission states that federal judges may apply the new two level lower guideline range in older cases, there is no requirement that federal judges do so. In fact because of the significant number of current federal prisoners who were sentenced under harsh federal guideline ranges, there will likely be a backlog of cases even for those who should be released under the new drug provisions.

Though the Commission states that fairness is the over-riding consideration for the retroactive federal drug sentence reductions, a look at the Commission's memorandum announcing the decision gives other reasons.

1. The Federal Bureau of Prisons population exceeds capacity by around 32%. Under today’s change addressing this problem, the Commission estimates that  46,290 offenders would be eligible to have their cases reviewed by a judge to determine if their sentences should be reduced;
2. Offenders eligible for a reduction could have their sentences reduced by an average of 25 months, or 18.8%. 
3. They would still serve 108 months, on average. 
4. Over time, these sentence reductions could result in a savings of up to 79,740 bed years (a bed year is the equivalent of one federal prisoner occupying a prison bed for a year).  

What the Commission is really saying is that because the federal prison system is now jammed by nearly a third over its actual capacity due to the harsh federal sentencing guidelines which the Commission created, the Commission now needs to save a few thousand bed years and this seems like a sensible way to do it. It's not about fair sentencing; it's about clearing the federal prisons for the next war on American citizens - not one hopes, another futile war on drugs.

For far too long the federal sentencing guidelines have needlessly destroyed the lives of our fellow Americans. It's good that the sentencing commission as well as politicians from both parties finally agree that federal drug sentences were too harsh for too long. 

Yet what does this say about the cowardly federal judges who did not have the courage to sentence federal drug defendants to treatment rather than punishment at the time of the original sentencing hearings? What does this say about the craven federal prosecutors who argued for ever more prison time for nonviolent drug crimes even when it was firmly established that prison would be of no benefit to the defendants nor for society? 

More than anything that can be bought or sold, in life what matters most is time. Time to spend in the countess ways that makes each of our lives worth living. And it was time that was stolen from these defendants. How will the lives of those needlessly imprisoned ever be made complete? The least these federal prosecutors and judges can do is to set new sentencing hearings for each of these men with all deliberate speed as if that hearing were for someone they knew from their own neighborhood or from their own family. 

Tuesday, July 15, 2014


A felony charge in Florida is defined as a criminal act for which a judge may give probation, house arrest or a prison term of more than one year; whereas for a misdemeanor a judge may give probation or jail only up to one year. When officers conduct any criminal investigation or make an arrest for any type of criminal charge one's reputation, freedom and future are always at risk. 

Handcuffs are used in felony arrests in Tampa Bay, Florida. When a felony is charged the risks become much graver, yet even a felony need not ruin someone's life if the charge is handled in an effective manner. 
Here are the best ways a clever criminal defense lawyer can work with you so that even a felony charge need not ruin your life.

  1. Attempt to have the charged felony dismissed. The facts of the case should be filtered thru any laws that may prosecution of the case impossible. For example, one defense to a felony aggravated battery charge would be self defense, which if successfully deployed could result in complete dismissal of the criminal charge. In an aggravated assault case a successful defense could in dismissal of the charges if facts establish that the victim was not in actual fear of immediate bodily harm from the alleged misconduct.
  2. Make every effort to have the felony charge reduced to a misdemeanor. If the charge can be reduced then the criminal justice system is limited to control of a defendant's life for a maximum time of one year. For example, in an aggravated battery the charge should be reduced to a misdemeanor battery if the victim's injuries are not severe. In a felony grand theft case the charge could be reduced if the amount were proven to be under the felony threshold in Florida of $300.
  3. Make certain that if you plead to a felony charge you're given a withholding of adjudication. In some felonies, such as third degree felonies or cases involving a juvenile, the judge may have the discretion to literally withhold adjudication of guilt, meaning that a defendant may later honestly claim to a future employer that he was not adjudicated for the felony.
  4. Reduce punishment so that you do not serve time in prison. When a criminal case is unlikely to be won because of significant evidence of guilt, then it may be necessary to reduce the punishment by persuading prosecutors that there is no justification for prison time. For example, it's important to remind prosecutors that in most nonviolent crimes serving prison time for someone who has no prior record is unlikely to prevent further crime and in fact may have the opposite effect of making the person a hardened criminal.
  5. Help you articulate why the felony happened and why it will never happen again so that you can become a functional member of the community. If you can demonstrably understand the underlying causes that triggered the crime you'll be much more effective in living a full life again. For example, in job interviews someone convicted of a felony can help assure a prospective employer by showing what was learned from the felony charge and punishment and why going thru that has made you a better person - a person more fit for the job than others who didn't have that learning experience.
If you and your criminal defense lawyer work hard to reduce the consequences of any felony charges, then the criminal justice system in Tampa Bay, Florida need not ruin your life.

Thursday, June 26, 2014


Will the Supreme Court's recent cell phone search decision really protect cell phone users from improper police searches? The good news is that the Supreme Court threw out the red hearing of officer safety which law enforcement often use as an excuse in warrantless searches. 

In the vast majority of cases a cell phone can not jeopardize officer safety. Yet cowardly courts would buy into the facetious arguments of prosecutors. Chief Justice Roberts noted the distinction between checking a cell phone to be certain there's not a dangerous razor blade hidden within as opposed to roaming thru the contents of a phone to randomly find unlawful acts. 

Justice Roberts not only protected his cell phone from improper police searches but protect ever cell phone in Tampa Bay, Florida and the United States from government intrusion.
Justice Roberts' cell phone is safe
Further, Roberts noted that the potential for destroying incriminating evidence by remote wiping of the phone was unlikely and something that the officers could stop by simply taking out the phone battery or by slipping the phone in an aluminum case. For too many years judges have given law enforcement officers the benefit of the doubt in new technology even when logic, if not common sense, was strained.

Although the decision requires a search warrant to search the phone of a defendant for cell phone evidence Robert's left some leeway in a "now or never" situation and even then a worst case scenario would merely be that the evidence might not be useable to gain a conviction at trial. Roberts further noted that the cell phone of today are much more than phones with the capacity to show much more of a person's life, frame of mind, political standing and common interests.

In Florida the law has been settled for some time and at least one Tampa Bay, Florida judge had the courage to no longer allow officers to search based on a lie under oath. Last year the Florida Supreme Court made a similar decision to restrict warrantless cell phone searches when it threw out evidence gleaned from a cell phone in a robbery case. It's good that the United States Supreme Court has now settled the issue of personal privacy rights in favor of citizens as a decision for law enforcement would have reduced the privacy of every American.

Friday, June 20, 2014


Despite the Department of Justice's new 'open discovery rules' and 'ethics re Brady seminars' many federal prosecutors continue to give inadequate discovery in violation of the prevailing Brady rules. In an attempt to address the 'epidemic of Brady violations' a new bill proposed in Congress by the Center for Prosecutorial Integrity would add muscle to the Brady rules by "...requiring prosecutors to implement an Open-File policy" for the following evidence:

In the future Perry Mason will be given timely discovery of the federal prosecutor's entire file.
Prosecutor, give Mason the damn discovery!
1. All witness statements would be subject to discovery.
2. All forensic test results would be made available to the defense.
3. All other evidence gathered by the prosecution that exists within the case file of the prosecutor.

It's clear that Brady violations are the leading type of prosecutorial misconduct perpetrated by the Government while prosecuting federal criminal cases.

Clearly prosecutors have an obligation to do their best to seek justice rather than merely to seek convictions yet too often prosecutors have tunnel vision that rejects evidence of innocence. Yet too often prosecutors view any evidence inconsistent with guilt as unreliable. But this is not a game. This is the lives, reputations and future of those who face the entire power of the federal government. Shouldn't they have access to all of the evidence, not just the evidence which prosecutors say is Brady material? As long as prosecutors decide which evidence is Brady material, there'll be incentive for prosecutors to obscure the actual value of evidence for the defense.  

For fair and just outcomes in federal criminal cases in the Middle District of Florida in Tampa and thru out the United States it's essential that all evidence must be given to defense lawyers. Why would prosecutors want anything less if they are interested in providing justice instead of mere convictions? 

The only way to insure that all evidence is made available to the defense is to have a complete Open-file system as the proposed bill would mandate. Then everything within the prosecutor's possession goes straight to the defense. Then let an American jury find a just verdict having seen all the evidence the lawyers provide.