Wednesday, January 28, 2015

SIX FATAL FACTORS LEADING FBI AGENTS & POLICE TO DELIVER FALSE EVIDENCE IN CRIMINAL TRIALS

It goes without saying that evidence seized at a crime scene must be properly collected and thoroughly tested. But too often the FBI and FDLE (Florida's state-wide investigative agency) have bungled the process of collection and testing making a mockery of justice in Tampa Bay area courts. 


A hair match
FBI matched Hair Sample
Every Florida citizen should be able to rely upon the honesty and integrity of evidence gathered and tested by police departments. Yet for years FBI agents under oath in criminal courts were giving false testimony about evidence in hundreds of criminal cases. For example, in many cases FBI agents testified that hair samples were not just a likely match, but a definitive match for defendants when collected at crime scenes for high profile cases such as kidnapping, murder, aggravated batter, sexual battery, assault, arson or burglary. Yet later DNA testing, years after conviction, establish that the hair samples were not in fact a match. Only now, years later does the FBI admit that these agents were simply lying under oath.

Even many early DNA tests are known to be flawed. At the advent of DNA testing jurors were told emphatically that scientific tests established links that have become undone by newer, better DNA tests that establish no links in tested samples.

All of this should remind jurors, judges and prosecutors in pending criminal cases that science is not always right, and that even when science is correct, human error, lapses of judgment or a predisposition of the tester may invalidate the process. These flawed evidence cases often seem to emerge in the most gut-wrenching high profile cases - those in which police and prosecutors are under the gun to do everything possible to get a conviction, to get a believed perpetrator of a violent act off the streets. Instead of finding justice the real criminal commits further crimes while the justice system becomes of mockery of fairness.

Judges, prosecutors, defense lawyers and jurors should be aware of the following seven factors that often are in play in false evidence cases:

First, evidence is mishandled. The priority for any officer upon entering a crime scene is self protection. Is the perpetrator still at the scene? Is the perpetrator armed? Then the officer looks to find, protect and help any possible victim. Because the sanctity of the crime scene is not really their highest priority, it's not uncommon for the evidence to become mishandled. Yet few officers will admit as much even under oath at a criminal trial.

Second, evidence is mislabeled. Crime scenes are rarely as depicted in television. Often it's very chaotic, there may be blood strewn everywhere. There may be multiple possibilities of weapons. Any evidence with its location must be registered, bagged and logged. Yet often the evidence has been moved or is simply in such a mess by the time the agents in charge of handling it arrive, that proper labeling is problematic. 

Third, evidence is ignored. That rope under the bed, what could that possibly have to do with a stabbing? And if the evidence is never recovered or remembered it will never come into play. The defense attorney will not be given access to most crime scenes until long after it has been thoroughly cleaned.

Fourth, inconsequential evidence is given greater weight than it should. The value of evidence is based on how officers and prosecutors use it. It's not unusual in criminal cases for defense counsel to find that minor pieces of evidence are being used to trump up the type of criminal charge filed.

Fifth, evidence is improperly tested or misinterpreted. How is that labs continue to present flawed results? A lot of the problem is inappropriate contact between prosecutors, investigators and the testers in which testers are told what results are needed to convict. Testers should be blind to other information in the case that is not necessary for proper testing. The testing should conform to the scientific method in seeking the truth. The testing should be consistent. The testing should be retested and calibrated against other testers on a regular basis so that outliers are reduced. Further, jurors should be allowed to hear about other results from the laboratory which were flawed.

Sixth and most disturbing is prosecutorial misconduct in persuading law enforcement to fudge facts toward guilt by claiming plenty of other circumstantial and direct evidence of guilt.

Clearly, for the criminal justice system to work effectively in Clearwater, Florida every criminal defense lawyer must demand that sworn statements from police officers, FDLE agents and FBI agents are true and honest. And that the evidence they testify about is properly obtained, labeled, and unbiasedly tested. 

Tuesday, November 11, 2014

POLICE AGENCIES TAKE PERSONAL PROPERTY WITHOUT INDICTMENT, HEARING OR EVIDENCE OF GUILT

Perhaps it should come as no surprise that police agencies make wish lists for forfeiture items. But forfeiture of property often occurs despite the fact that the rightful owner of the property is nether convicted nor charged with a federal or Florida crime. In fact across American your tax dollars are used to send police officers to special seminars where they're told which private items are worth taking from the citizens they're supposedly protecting. Jewelry is too hard to sell, computers too common, fast cars are just right. 


The New York Times even describes a sheriff who had his eye on a particularly Italian specimen of fast car which he and his deputies laid claim to after careful strategy and planning sessions to make the necessary arrest. Few would object to the forfeiture of property when linked directly to a criminal act. However, every forfeiture should arise only after charges are filed and then after a conviction is obtained for those charges. 
Police agencies look for personal property subject to forfeiture even without a conviction, hope the Clearwater, Florida cops don't  take my Pumpkin Frappuccino.
Just Don't Take My Pumpkin Frappuccino

In high profile complex criminal litigation the taking of property without a fair hearing before indictment and trial has become an effective and alarming means of depriving the alleged wrong doer of the means to fund an adequate defense. Unfortunately for everyone involved it also makes it difficult for defense counsel to buy that grandee pumpkin spice frappuccino he's had his eye on for the past hour at Starbucks, but let's not make this too personal.

Clearly national standards for federal and state police actions for forfeiture of property should include the following requirements:


  1. A charging document, indictment or in states such as Florida a charging information where no grand jury is necessary for a criminal charge.
  2. An assessment of how the property pertains to the charged misconduct. For example, establishing that the property was the ill gotten gains from a conspiracy to defraud or grand theft to  part of part of the charging document 
  3. The right to an immediate hearing to contest the taking of property.
  4. The burden of any pretrial hearing to be solely upon the government to establish why the property must be taken.
  5. At the formal hearing the property owner should have the right to confront all of the state's witnesses as well as to call to the witness stand any witness including police officers, detectives and administrative officials within the police department who could shed light on the motives of the department for taking the property and their previous actions in other forfeiture hearings.
The goal should be to protect private property by restricting the use of forfeiture by prosecutors and police departments to only those cases where there's absolute necessity for the taking.

Monday, October 06, 2014

SHOULD TAMPA BAY CIRCUIT JUDGE WHO ABUSED SENTENCING DISCRETION IN CHILD PORN CASES RESIGN?

A Circuit Judge was recently slapped on the wrist by the Second District Court of Appeal for abusing his discretion in child porn cases. From the appeals opinion it's been a long time coming. This is a judge who was reversed because he implied that he would never consider giving a lighter sentence in these cases no matter what the particular facts of the case even though a psychologist found that the defendant was a low risk for recidivism. 


Part of the problem is that judges are often taught by the cases they here. Judges who are in special divisions such as habitual offender divisions or sex offender divisions habitually hand out longer sentences even after they leave those specialty divisions. Rather than funneling all of these cases to special divisions perhaps it would be more humane for the judges as well as for the defendants to have these cases parsed out among all of the judges. 

It's not unusual for judges who routinely give out long sentences to become jaded. It's part of a continuing process that happens in the Tampa Bay area. In Pinellas County the judges who serve in the career criminal division are never quite the same when they leave. It's almost as if a little bit of their humanity is shed with each long sentence they were reluctantly forced to give. 

In Hillsborough County it appears that the judge may have succumbed to the rigors of being a sex offender division judge for far too long. It must be disheartening to listen to cases involving sexual battery, child molestation or child pornography over and over with victims who will never be healed. But not every child pornographer is a child molester and at minimum every case must be decided based not on the judge's preconceived notions but on the facts and the prevailing law. If a judge doesn't want to sentence defendants in a fair manner isn't there a judge in Tampa Bay who will?

In fact this very judge is now fighting not to give a deposition in a case in which it is alleged that he raised the bond on a defendant after conversations with representatives from the police - conversations which he allegedly failed to disclose to the defense and to which the defense was not privy. If established as true then there is precedent for a judge not only losing his seat but his license to practice law in Florida. In Miami a judge was recently disbarred for inappropriate communication with a prosecutor during a murder trial.

Normally one expects that even the worst judges are not so crass as to at least clothe their decisions in fair sounding language for unreasonable sentencing options. Yet I've found that reasonable language often leads to reasonable results. Here the appeals court  seems to indicate that there's a judge who no longer cares enough to listen to expert witnesses brought in by the defense because he has already made up his mind about the cases that come before him foolishly admitting his abundance of hubris and bias on the record.

Clearly, any judge facing such an appeals court decision should give some thought as to whether he really wants to be a judge. If any judge prefers to be an advocate rather than an impartial arbiter of law and facts, then wouldn't he or she be of better service to the legal community as a practicing lawyer? 

Tuesday, August 19, 2014

FIVE THINGS TO DO WHEN YOU SEE POLICE MISCONDUCT IN FLORIDA

If that noise in the cellar is just another officer drinking some of your best wine, then maybe it's time to consider some aspects of officer misconduct. In Florida we don't have many wine cellars at least not located under the floor mat  but we do have plenty of law enforcement officers who abuse their trust. 

We have officers who lie under oath to get search warrants, officers who search thru official databanks to learn private information, officers who commit felonies to gain access to private property and officers who run tags from those parked at legitimate businesses to later make marijuana arrests. One reason for misconduct by police in Florida is that they are under no duty to tell the truth or be honest when dealing with defendants and this dishonesty may become a habit.

All of these acts of police misconduct have recently been committed in Pinellas County, Florida. Clearly, there is an ongoing problem of repeated police misconduct among police agencies. Even if it's only a few bad cops are ruining the reputation of the majority of good cops, there's still a very real possibility that an interaction with an officer could turn ugly.

What should you do if you have an interaction with a corrupt police officer? 

  1. The most important issue must always be your safety. Don't do or say anything that will make the situation worse. 
  2. Your goal should be to later be able to find witnesses or evidence to establish that you were victimized. 
  3. If criminal charges were filed against you, then you should tell your criminal defense lawyer all of the facts including whatever the officer did that was inappropriate. It's important to let your lawyer know everything that happened and why.
  4. Officer misconduct is not the same as a Get Out of Jail Free Card. The goal of prosecutors will still be to prosecute any crime. But if the officer's actions undermine the probable cause that a crime was committed then the charge may be dismissed or reduced. For example, in one notorious recent case DUI charges were dropped in the Tampa Bay area when it was shown that officers helped to set up a honey pot trap of a DUI arrest for an unsuspecting man. The officer was fired and the FBI is still investigating the facts for a possible federal indictment.
  5. Your criminal defense attorney may consider filing a grievance with the police department or asking another agency with jurisdiction to look at any possible unlawful activity by the police department. It's very unlikely that prosecutors will initiate an investigation of a local police department as most cases prosecutors receive are generated from arrests and investigations made by the police department. But this should only be done after a full discussion of how it may effect your criminal case.
As you can see it's important to have an understanding of the criminal justice system and knowledge of the interaction of the various police agencies and prosecutors in dealing with police misconduct. If you have reason to believe you have been the victim of police misconduct in Clearwater, St. Petersburg or anywhere in Tampa Bay feel free to call criminal defense lawyer Robert Hambrick any time.

Saturday, August 16, 2014

Why American Law Enforcement Wages War Against Us



The current crisis of police violence, gamesmanship and civil rights violations in Ferguson, Missouri - of all places - brings to light the guiding militaristic 'win at all costs' operational guidepost of American law enforcement. Clearly law enforcement in the United States has lost its way. 
Police in Tampa Bay, Florida have no need for armored vehicles, nor tanks, nor other military equipment.
But Officer, I wasn't speeding!

One of the unfortunate consequences from the winding down of America's foreign wars has been the marshaling of militaristic slogans from veterans into the police community. But not only have ideas of war from the Middle East infiltrated the police community - the used armaments from those wars have made their way to middle America. Now the smallest police forces in America can boast of having tanks, rocket launchers, armor piercing equipment and many other battlefield tested weapons. No wonder there's a war mentality in American law enforcement. Since they have the equipment of war what are they suppose to do, simply sit on it? Who are these armaments to be used against?

Our federal and state governments share blame for periodically declaring war against various segments of American society. In the late fifties and sixties civil rights marchers were arrested in the South even as they fought police to protect their basic constitutional rights such as the right to vote. Later as the Supreme Court defended the defenseless by finally protecting civil rights, other wars emerged against Americans. Again these wars were waged by law enforcement. Among the most bitter fights is the war on drugs conducted for two generations which has successfully incarcerated millions of otherwise law abiding citizens, destroying lives without pity nor mercy while making a mockery of justice. 

Yet lost in the shameful statistics of waste and decay from harsh drug minimum mandatory sentencing found in federal and state prisons is an interesting question. What have these corrupt sentences from wars waged against our own citizens done to prosecutors and law enforcement? It has made them cynical, base, immoral and free from the burdens of conscience. It has empowered the untrustworthy with the ability to imprison those whom they hate thereby imperiling the very rule of law upon which our republic was founded.

What can be done to change the very hearts of law enforcement officers? Law Enforcement officers who want to wage war against us must find other work or face imprisonment themselves. New police leaders must be appointed and elected who will work to hire only those who are truly fit to wear their badges with honor and pride to defend American constitutional rights. In the mean time could someone please ask the cops to lock up the rocket launchers before they accidentally hurt somebody.


Monday, August 11, 2014

Federal Judge Arrested For Second Domestic Battery Should Resign Or Be Impeached

A federal judge on vacation was released on bail after being represented by the public defender's office at his initial appearance for domestic battery this weekend. Beyond the fact that any judge - particularly a federal judge - should have the means and wherewithal to hire his own lawyer; one wonders what special treatment this judge is apt to receive. 


Judge Kicks Justice
Although every accused judge is entitled to be presumed innocent until proven guilty, public records found by the Atlanta Constitution establish that this is not the judge's first time being targeted with the allegation of domestic battery though apparently it is his first battery or assault arrest. Perhaps he is not in the habit of battering each of his Federal Judge Arrested For Second Domestic Battery Should Resign Or Be Impeached wives, but at least one former wife claims he battered her as well. 

I suppose the principle of law here should be that federal judges are more equal than others as the notion that all of us are equal under the law is rather quaint. Is it really possible in the American criminal justice system that a federal judge will be treated no differently than any other defendant charged with domestic battery? Will he be forced to commit himself to psychological counseling? Will he be told to have no communication with the victim, his wife? Well, as a matter of fact, there was no condition in the bail to keep him away from the victim only a condition "to not have violent contact" with her. 

Should the judge spend his next vacation here in Clearwater, Florida as we all hope he will, he'll find that we have a special domestic battery court. But after arrest, first he'll have to deal with the typical Pinellas County bond requirements which include having no contact whatsoever with the victim, meaning no emails to her, no phone conversations and of course no co-habitation even if children are involved. Maybe the law in Georgia is vastly different, but it does make one wonder why the federal judge merely has to have no violent contact with his favorite victim? 

Although the idea of the Pinellas domestic battery court to identify batterers and provide psychological remedies to prevent assaults and batteries is laudable, too often the presumption of innocence is turned on its head when those arrested are presumed guilty and forced to either accept the gentle offer of treatment laced with possible dismissal of the charges or face time in jail if convicted. 

Should the judge choose Florida for his next vacation I am prepared to provide him with a federal judge criminal law discount should he decide to hire a private Clearwater criminal defense attorney rather than depend upon the stressed public defender system. He may need special help as under federal law any domestic battery is counted as a violent offense. Since the discount applies to former federal judges, perhaps he'll take this into consideration for what course his life should take in the future. Clearly this man should resign his position of trust; if not, he should be impeached as he's not fit to sit in judgment of others.