Monday, April 11, 2016

WHY NONVIOLENT FELONIES & MISDEMEANORS IN FLORIDA SHOULD RARELY RESULT IN AN ARREST

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

THE BEST WAY TO HANDLE THAT PENDING ARREST WARRANT FROM PINELLAS COUNTY, FLORIDA

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

A GUIDE TO FEDERAL PROSECUTION PRIORITIES FOR INDICTMENTS IN THE MIDDLE DISTRICT OF FLORIDA

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

HOW JUDGE SCALIA DIED AT A RICH MAN'S LUXURY RANCH INSTEAD OF IN YOUR GUEST BEDROOM

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.


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.