Monday, July 13, 2015

WILL POSSESSION OF THE ENTIRE 22 VOLUME OXFORD ENGLISH DICTIONARY MAKE ME A BETTER LAWYER?


Unfortunately in a moment of delusional optimism I happened upon a recent article filled with praise for the Oxford English Dictionary (2nd Edition, 1989, a mere 22 volumes). The writer noted that the dictionary was her favorite worldly possession. Not only more sobering than wine, but better by a wide margin than anything she's ever owned, including "books, paintings and drawings, souvenirs, jewels - shoes even."

Image result for oxford english dictionary 2nd edition
Reading Material for Court
Something about this struck a deep cord with me. For a week or so I wondered how owning this marvel might change my life. Would it make me a better person, a better American, and for any possible tax deduction, a better lawyer?

I'd wake up, make espresso and randomly draw forth a volume, reading a new word's history, usage, lineage and sit back savoring how I'd spring it on the next unsuspecting person I happened upon. If a lawyer, fine; if a judge, so much the better; if a juror, forget it. No doubt there are words in those fine books unfit for jurors or even other lawyers, but could there ever be a word unfit or unprofitable to spill in open court to win a judge's smile? 

Last Friday in Court in Clearwater while slumped in a juror's chair waiting for my client's important criminal case to be called, I was jolted awake when I heard a lawyer, nearly as regular looking as you or me, speaking with the lilt of a real British accent. Most of what he said seemed to be understandable to the judge, but there were unmistakable rumblings of mutual miscommunication that only knowledge from a true English dictionary laced with a steady diet of Downton Abbey and Sherlock Holmes could solve. All this was done while the lawyer performed an English dance with his client around the podium, like a scene from Pride and Prejudice, till the Bailiff put it to a stop.

All this makes me wonder. How would I manage to take all 22 volumes of the dictionary with me every time I go to court? Wouldn't it be better to squirrel away a volume or two in each of the courtrooms? Then I could focus on using a big word from the dictionary of whatever courtroom I happen to be in that day? Everyone would be amazed. I might even amaze myself. 

Yet more importantly, would possession and possible occasional use of the dictionary change my voice so that I sound like Sean Connery? But there are other questions. Would the words accumulating like raindrops in a birdbath overflow when I least expected it? Would some words escape, fly far away and never return? If so, how could I live without them?

These questions and hesitant answers are pushing me down the path toward actually buying the Oxford Dictionary, especially because this edition is to be the last one ever to be printed. The dictionary like most everything else is now online for your yearly payment. Wouldn't it be cheaper in the long run based on my life expectancy (let's think half full here) to buy a complete Oxford Dictionary and hope for the best? 

One hopes my use of the books won't be disrupted by future federal  criminal laws. Could Congress make it a federal crime to possess or distribute them? After all, the dictionary clearly contains words that are in fact representations of known unlawful drugs such as marijuana, cocaine and methamphetamine. Who knows what might happen if I read them. What if I read the word euphoria? 

I ordered the dictionary. I'll let you know how it goes, but in the meantime if you happen to get a call from Sean Connery, don't hang up, it's just me trying out some fancy words with my new accent.

Thursday, May 21, 2015

HOW TO REDUCE VALUATION OF GOODS IN FEDERAL CRIMINAL CASES FOR BETTER SENTENCING RESULTS

In many federal and Florida criminal cases the dollar amount of a scheme to defraud or theft becomes an important issue at sentencing. In the Middle District of Florida at the Tampa Federal Court many federal crimes are parsed by way of damage done. The federal sentencing guidelines determine economic damage based on dollar calculations. Sometimes these calculations call into question the sanity of the guidelines.
Clickhere for Julie's Lobster Gallery
An Innocent Florida Lobster of Great Value

A fellow lawyer sent me a question about how the federal government values lobsters that illustrates the absurdity of federal criminal law.
I have a question about the valuation of goods for purposes of calculating the sentencing guidelines. 
Defendant illegally harvested Florida spiny lobsters in the Florida Keys. Sold them to local seafood stores for $5.50 per pound. He was surveilled and videotaped while committing the illegal harvesting. He was arrested pursuant to the Lacey Act and pled guilty to a federal misdemeanor.
If lobsters are valued at $5.50 per pound the guidelines allow probation, but the PSR values the lobsters at around $24 a pound because there is a big market for them in Asia if they are shipped live to say, Hong Kong, for example.
The federal government is keeping the fishing boat (that’s punishment enough one would think).  At the higher value the guidelines call for incarcerationThe probation officer who wrote the Pre-sentencing Report refuses to disclose what source or information was used to value the lobsters at $24 per pound.Any suggestions?
Thanks
As you can see value in federal terms is all about dollars even when talking about the illegal harvesting of Florida lobsters. The absurd result of the probation officer's findings for lobster value are similar to what happens in federal criminal cases all of the time. FBI and DEA agents are notoriously off the mark when confronted on cross-examination with valuation issues in a wide variety of criminal cases involving the street value of drugs, the value of stolen property or actual monetary fraud loss.  

Perhaps the probation officer in the lobster case should also take into account currency fluctuations, the strength of the yen to the dollar and the financial disarray in the Eurozone. So how should value be determined? Doesn't the nearest local value make the most sense? Doesn't it matter what the Defendant thought the lobsters were worth when he sold them? We know what he thought they were worth, exactly what he was paid, $5 per pound. 

But for some probation officers and federal prosecutors that ready knowledge is not enough. Instead the value calculation includes added airfare and effort with the not inexpensive means to keep the lobsters alive all the way to Asia, which happens to be the most expensive market in the world. Clearly, an objection and Sentencing Memorandum should be filed detailing for the federal judge the ridiculous analysis of the Pre-sentencing report (PSR) and the need to not give preference to the prosecution in sentencing.

Thursday, May 07, 2015

FINDING FEDERAL SENTENCE REDUCTIONS BASED ON THE NEW DOJ STUDY OF PRISONS FILLED WITH OLD MEN


Yesterday, I finally received a late Pre-sentencing Report in a federal drug case from the probation office in Tampa. By law the Report must include, for the prosecutor's delight and the federal judge's perusal, the the cost of incarceration versus the cost of probation. As of yesterday the cost per year of federal incarceration is $29,291.62, whereas the cost of supervision by a probation officer is $3,162.03. 

shakespeare's falstaff performance - a man thought too old for prison
Why send Sir John Falstaff to Prison?
My client is accused of the significant but nonviolent federal crime of trafficking in cocaine. The punishment includes a minimum mandatory 10 year sentence. So the cost to imprison my client for the next 10 years will be at least $292,916.20 and this unreasonably assumes that the cost will not be greater a few years from now as my client ages. Many federal defendants face much longer sentences such as twenty-five year minimum mandatory sentences or life sentences. 

Think about those numbers. Think about the fact that the United States incarcerates a greater portion of it's population than any country on earth. How did this happen and what does it mean for our country? As these inmates age the financial impact becomes much greater forcing the federal Bureau of Prisons to become something closer to a nursing home of elderly prisoners.

A new DOJ study on aging inmates from it's own inspector general's office reinforces what we already knew - our American war on drugs is an abject failure not only for America but for the bureau of prisons. It turns out that thirty years of Federal minimum mandatory drug sentences have resulted in a prison population that is mostly populated by men over fifty years of age. Here is an excerpt from the report.
the Federal Bureau of Prisons (BOP) incarcerated 164,566 federal inmates in 119 BOP-managed institutions.1 According to BOP data, inmates age 50 and older were the fastest growing segment of its inmate population, increasing 25 percent from 24,857 in fiscal year

The OIG found that aging inmates are more costly to incarcerate than their younger counterparts due to increased medical needs. We further found that limited institution staff and inadequate staff training affect the BOP’s ability to address the needs of aging inmates. The physical infrastructure of BOP institutions also limits the availability of appropriate housing for aging inmates. Further, the BOP does not provide programming opportunities designed specifically to meet the needs of aging inmates. We also determined that aging inmates engage in fewer misconduct incidents while incarcerated and have a lower rate of re-arrest once released; however, BOP policies limit the number of aging inmates who can be considered for early release and, as a result, few are actually released early.
Those nonviolent drug users now need more medical care and other services that the BOP (Bureau of Prisons) can not possibly provide to an adequate level even if it spends more money.

For federal defense lawyers this study provides excellent arguments for requests to district judges at sentencing for sentence reductions and variances under the federal sentencing guidelines for older federal defendants. Clearly, the Justice Department now admits that Bureau of Prisons is incapable of handling the vast number of aged defendants yearly sent to federal prison. 

Isn't it finally time for the DOJ, federal judges and Congress to do something about these inhumane sentences?

Wednesday, March 18, 2015

AFTER YOUR ARREST, THEN YOUR FIRST HEARING DATE FOR CRIMINAL COURT IN CLEARWATER, FLORIDA

An old chevy used as a police car in Clearwater, Florida where the criminal justice system is as slow as the police cruiser pictured.
Justice slow but sure.
If you've just been arrested Tampa Bay the first thing to know is that the criminal justices system in Clearwater, Florida runs as slow as your uncle's old chevy with half a million miles. Florida's criminal justice system was not designed for speed though one might have hoped it would have been designed to provide justice. 


It doesn't matter if you're innocent or guilty, your trip thru the criminal courts of Florida will be numbingly time consuming, sapping your life energy, challenging your hopes and destroying your relationships. And all of this will happen even before your first court appearance. 

Be warned that the process of arrest for a criminal felony or misdemeanor is merely the beginning. Once you've paid bond or hired a bondsman usually for ten percent of the total bond, you'll be free to wait for six months or longer for your case to be resolved. 

The first hearing date you'll be given is the arraignment. If you hire a criminal defense lawyer, then you won't have to attend the arraignment because the paperwork the attorney files with the Pinellas Clerk of Court and sends to the prosecutor satisfies the conditions and requirements for that hearing. But after the arraignment there will be a new Pretrial scheduled at the judge's convenience every month. 

You'll need to plan on attending every pretrial conference while your case is pending. Yes, most judges understand that attending pretrials can become exhausting as well as problematical with pre-existing work and family obligations. But failing to attend a pretrial often results in the bond being revoked and an arrest warrant being issued. That's why it's very important to call your defense lawyer if for any reason you may not be able to attend a pretrial. 

So an arrest is just the beginning. Now the real work for your defense lawyer begins by persuading the prosecutor and judge during the early stages of the case that you are not just a case number and that you should be treated with fairness


Thursday, February 26, 2015

JUDGE'S DEATH MARKS THE END OF AN ERA BEFORE UNFAIR FLORIDA MINIMUM MANDATORY SENTENCING

Mark Rutledge McGarry Jr.
Judge Mark McGarry

One of Pinellas County's best judges recently died. Judge Mark McGarry served as a judge from 1968 until his retirement decades later. With him goes a charming era when good judges mentored, trained and helped the lawyers who practiced before them. He often bettered lawyers with wit, charm, care and compassion, always a sly jesting glimmer in his eyes.

After thirty years of practicing law I've found that putting on that black robe often changes folks for the worse. I wonder why. Is the power? No, if anything most of a judge's time is spent in boring ways. Pushing shopping carts full of court documents and files thru the criminal justice system with endless status checks, pretrials, hearings, trials and appeals.

The only way a person of genuine intelligence like Judge McGarry was able to sit still on that bench for hours at a time that became years and then decades was because he spent much of that time dissecting those before him, often drawing New Yorker styled cartoons lampooning the judicial system, witnesses, bailiffs, and hapless lawyers who somehow bungled their way into his courtroom. He was deliciously pleased by the casual inadvertant catastrophy that make trials interesting for spectators and nightmarish for lawyers. The police officer who submitted that wrong evidence, say mislabeled cocaine in the marijuana trial, could happily lay claim to immortality, at least for us - laughing -who later saw the cartoon.

And yes, he could be cruel now and then, especially as retirement drew closer. He didn't like the way one somewhat pretentious, politically well-connected prosecutor treated a witness during a jury trial. The prosecutor's last name was Todd.  Judge McGarry waited for the prosecutor to finish questioning the witness by simply saying, "Mr. Toad, do you have any other witnesses?" I don't recall hearing the judge ever use the correct name again.

Of course, it was a different world then. During most of his time while serving as a Circuit Court Judge in Pinellas County only white men could wear those black robes. Bringing more women and minorities onto the bench should also have brought fresh awareness of how the criminal law should be applied. 


Yet Judge McGarry was ahead of his time in understanding the dynamics of fair sentencing. He understood that harsh minimum mandatory drug sentencing merely takes away the judge's discretion to sentence fairly. He knew sentencing guidelines and sentencing scoresheets were simply wrong and he did everything he could to ensure fairness in the sentencing process.

No wonder Judge McGarry left the bench when he did, head held high, an courageous, honest judge. Not long after he left the bench judges, prosecutors and defense lawyers became little more than calculators - adding machines to compute the scoresheets for Florida sentencing guidelines - as nothing but numbers now mattered. There would be no time for laughter nor for cartoons, it was to be all about punishment.

Monday, February 23, 2015

HOW TO AVOID BEING BRANDED AS A CRIMINAL FOR LIFE AFTER A FLORIDA ARREST OR CRIMINAL CHARGE

 florida beach clearwater where criminal law still applies and often ruins lives of those who live in Florida or come for vacation.
 Clearwater Florida: The Rules are Different

A few years ago Florida spent millions of dollars to promote as its apt tourist slogan, "the rules are different here." For those who live in this sunshine paradise as well as the travelers who spend time at our beaches, bays, lakes, bike paths and rivers time spent here can be carefree and beautiful.

Yet that slogan also has deeper meaning in that Florida imprisons a greater portion of it's population than most any other state not in the deep south. Yes, without a doubt the rules are different in Florida. Its not unusual for Floridians and vacationers to find that their Florida dreams are ruined from criminal accusations. 

Florida is a state that harasses, arrests and incarcerates people for 'crimes' such as marijuana possession that would not even be illegal in many parts of the country. In fact in Florida it is still an illegal misdemeanor to co-habitate with someone who is not your wife or husband. 

Clearly, Florida prosecutors, sheriffs, deputies, officers and judges should prioritize crimes. They should use discretion with understanding and compassion. Technically criminal offenses of a nonviolent nature such as drug crimes, thefts, and trespass should be taken care of with a civil citation requiring a fine or community service for quick dismissal of the case without need of hiring a criminal defense lawyer. 

In some parts of the state such as Tallahassee experiments with civil citations program are being used effectively for victimless crimes such as petty theft. Having succeeded in not making criminals of large portions of the population the civil citation program should be promoted in every part of Florida rather than just the capital. But law enforcement and prosecutors prefer to make arrests so that they can justify their ever increasing budgets.

In Clearwater, Pinellas County, Florida alleged incidental bad behavior often results in an unnecessary arrest that forever brands the accused as a criminal even if the charges or dropped or the defendant is later found not guilty. For example, is it really reasonable to arrest someone for criminal mischief who is caught taking the air out of a friend's tire as a joke? Somehow police, prosecutors and judges have lost proportionality in arrests and sentencing. Until the criminal laws in Florida are changed a Clearwater criminal defense attorney often must be retained to bring some common sense to the prosecutors, the police and the judge.