Wednesday, December 28, 2011


Local activists against domestic violence and sexual violence will help plan a new special Domestic Violence Pinellas County Court in Clearwater, Florida next year which will not only take in criminal cases but also be able to track and assign immediate injunctions for protection and restraining orders to protect victims. 

Money is also being allocated to 'train' Pinellas Judges to give sentences of jail or probation which includes completing successfully Pinellas Batterer Intervention Programs which entail six month group counseling sessions led by certified facilitators - who one assumes must go to work not only with a thick skin but perhaps shrouded within a suit of armor. 

The mere allegation of abuse should not be sufficient to bring criminal charges tho unfortunately this is not always true, if you've been falsely accused, arrested, charged or investigated it's necessary to contact a Pinellas domestic violence attorney to defend your rights and to conduct a complete investigation of the facts for your criminal defense.
The trend seems to be that every type of crime will one day have its own specialized Court with its own specialist Judge dealing only with the issues resulting from that type of crime. The Pinellas Drug Court has been a success as noted previously in this criminal defense blog and here, but drugs are a victimless crime
It's important to keep in mind that every crime even a repugnant or heinous crime such as the arrest for domestic violence must be proven in Florida by a reasonable doubt if the facts are in dispute.

741.28 Domestic violence; definitions.As used in ss. 741.28-741.31:
(1) “Department” means the Florida Department of Law Enforcement.
(2) “Domestic violence” means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.
(3) “Family or household member” means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.

Be careful with that Pitchfork, Fella - or you'll be sent to the Pinellas Domestic Violence Court.
Man and woman with stern expession stand side-by-side. The man hold a pitch fork.
American Gothic by Grant Wood, 1930.

Thursday, December 22, 2011


One of the fundamental pillars of justice in America is that the defense is entitled to evaluate all testimony at trial thru the process of cross-examination. The constitution guarantees that "in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him." This is known as the Confrontation Clause (which tho we are near Christmas has little to do with the Clause known as Santa).
For many years the Supreme Court allowed prosecutors to present evidence in an indirect manner which avoided the necessity of having witnesses confronted at trial, filtering even to our Criminal Justice Center in Clearwater Pinellas County, Forida where lab reports were found to be sufficient without testimony. However, the Supreme Court has begun to shift in favor of Defendant's rights to cross-examine witnesses especially where expert witness testimony is proffered thru reports rather than with the actual witness at trial. Interestingly for your favorite Pinellas Crime Lawyer & Supreme Court Spectator, it seems to be driven by the conservative wing of the Court.
Part of the underlying reasoning for this shift as earlier entries in this blog have shown is the failure of Government forensic laboratories to give unbiased results.

The Confrontation Clause of the Sixth Amendment is a focal point of recent litigation. See Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); Melendez–Diaz v. Massachusetts, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009); Bullcoming v. New Mexico, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011).  Listen to arguments of the case, see also for more Supreme Court audio arguments.
The Court’s opinion in Williams v. Illinois, argued December 6, should be announced soon: Is it a violation of the Confrontation Clause to allow an expert witness to testify about the results of DNA testing conducted by another analyst who has not appeared as a witness at the trial.          
The First Circuit recently vacated a conviction over lack of confrontation (Ramos-Gonzlez)... In this cocaine case the government adds substitute chemist Morales to the witness list shortly before trial.  Morales is called by the government testifying to the work of the previous chemist as the prosecutor failed to have Morales do his own testing... The Court stated that, “Morales's testimony was neither cumulative of nor sufficiently corroborated by alternative evidence, and it comprised the only compelling basis for the jury to conclude a critical element of the government's case—that the substance seized from the truck was cocaine. We cannot conclude that the presence of cocaine would have been proved without the testimony of Morales, and therefore the admission of his testimony was not harmless beyond a reasonable doubt.” 

Sunday, December 18, 2011


The Florida Supreme Court recently held in Del Valle v. State that before a Judge can revoke probation and incarcerate a Defendant for failure to pay, the Judge must first make inquiry into the Defendant's actual ability to pay. Even your favorite Clearwater Defense Attorney is heartened that being poor is no longer a crime in Florida.

The Judge must determine in a hearing: Did the Defendant have the ability to pay or did the Defendant willfully refuse to pay. Under Florida law, the trial court must make its finding regarding whether the probationer willfully violated probation by the greater weight of the evidence. The Judge must do this in a hearing where the Defendant can provide evidence because an automatic revocation of probation without evidence presented as to ability to pay to support the trial court's finding of willfulness violated due process.  Although it is constitutional to place the burden on the Defendant to prove his inability to pay, the aspect of section 948.06(5), Florida Statutes, that required a Defendant to prove his inability to pay by the heightened standard of clear and convincing evidence was unconstitutional.
Probation reduced by Pinellas Crime Attorney
Bar Journal Article on clear and convincing evidence
Excellent Discusion of State v. Del Valle as affecting State v. Adkins
Public Information - Oral Argument
It's far better to be poor in Clearwater, Florida than rich in England... at least in Tampa Bay there's much more sunshine.
Old Beggar, 1916, by Louis Dewis, painted just outside his clothing store in Bordeaux, France.

Tuesday, December 13, 2011


So far not one of the Judges in Florida's 6th Circuit (encompassing Hillsborough, Pinellas, Pasco Counties as well as Tampa, Clearwater & St. Petersburg) has thrown out any drug cases based on Federal District Judge Scriven's recent well reasoned Federal decision in the Shelton case which declared Florida's Drug Laws unconstitutional.

However, Circuit Courts in Miami have dismissed some cases and not others. More recently the Circuit Court for the Twelfth Judicial Circuit in Manatee County dismissed 46 cases based on Scriven's decision that Fla. Stat. section 893.13 was unconstitutional. The State of course immediately appealed. On September 28th, the Second District Court of Appeal entered an order certifying that the issue requires immediate resolution by the Florida Supreme Court. 
On October 12th, the Florida Supreme Court accepted jurisdiction in the case in State v. Adkins, No. SC11-1878. The Florida Supreme Court ordered the parties to file their initial briefs and answer briefs quickly with oral argument was held at the Florida Supreme Court on the sixth of December. 
Clearly, the Florida Supreme Court expects to resolve the split within the Florida Districts quickly, but will it be fast enough to help your favorite Crime Attorney's clients. See Case Briefs for the Florida Supreme Court.
Listen to the actual oral arguments made to the Supreme Court of Florida and decide for yourself what the Court should do...
Don Quixote & the Dead Mule

Sunday, December 11, 2011


Imagine a dark Orwellian world where everything you do is on video and everything you do is closely examined in the hope it can be used as evidence against you in the future.

Well, if you live in Pinellas County, Florida you don't have to imagine that world anymore, as your Pinellas County Sheriff's Office secretly put hundreds of customers under video surveillance for over a year at a plant store called Simply Hydroponics. Law enforcement then used identifiers of the customers, such as the tags on their vehicles to track them, spy on them and to obtain search warrants which contained at best highly unlikely information.

This should make every American angry and even makes your favorite Clearwater Defense Lawyer despair for the future of our country.
In one case law enforcement officers placed a plant store customer's home under surveillance then swore under oath in a search warrant that they could smell the marijuana plants and heard the distinct noise of foliage being broken from within what they designated as a suspected marijuana grow house. Our intrepid detectives found a single marijuana plant upon forcing their way into the home.
If there's one thing all of us as Americans should be against it's unbridled government surveillance and the destruction of our privacy rights. Yet we should also agree that the inherent corruption which resulted in officer's telling lies under oath must also be rooted out.
The surveillance, the lies, the misinformation and the failure of law enforcement to abide by basic American standards of Justice should result in the immediate investigations of every law enforcement officer and every prosecutor involved as prosecutors routinely draft, prepare and take the search warrants to Judges for signatures. 
A Grand Jury should immediately be convened by the Florida Attorney General Pam Bondi to investigate he highest positions at the Sheriff's Office and at the State Attorney's Office, to find who was responsible for placing the video equipment near the store, to find what other stores or public areas are secretly under surveillance and to bring to justice all of those who did this or allowed this to be done under their watch.

Here are a few excerpts about smell as possible probable cause from the St. Petersburg Times Article: Young plants don't emit an odor, but if a person were growing "hundreds" of mature plants in a structure that wasn't properly sealed, it's "possible" an officer very close to the home would notice the smell...James Woodford of Chattanooga, Tenn., an expert on the topic of marijuana odor, said a large operation vented directly outdoors could generate an occasional "whiff" of marijuana detectable up to 25 to 30 feet away [i.e., less than half the distance between the sidewalk and Underwood's "alleged grow room"]....Law enforcement officers commonly use the smell of marijuana to establish probable cause.
Drug Crimes Trial Lawyer & Criminal Defense Attorney in Clearwater, FL
Times Editorial: America shouldn't be a surveillance society
Video Surveillance – Are Hidden Cameras Legal?
933.07 Issuance of search warrants.
(1) The judge, upon examination of the application and proofs submitted, if satisfied that probable cause exists for the issuing of the search warrant, shall thereupon issue a search warrant signed by him or her with his or her name of office, to any sheriff and the sheriff’s deputies or any police officer or other person authorized by law to execute process, commanding the officer or person forthwith to search the property described in the warrant or the person named, for the property specified, and to bring the property and any person arrested in connection therewith before the judge or some other court having jurisdiction of the offense.
(2) Notwithstanding any other provisions of this chapter, the Department of Agriculture and Consumer Services, based on grounds specified in s. 933.02(4)(d), may obtain a search warrant authorized by this chapter for an area in size up to and including the full extent of the county in which the search warrant is issued. The judge issuing such search warrant shall conduct a court proceeding prior to the issuance of such search warrant upon reasonable notice and shall receive, hear, and determine any objections by property owners to the issuance of such search warrant. Such search warrant may be served by employees or authorized contractors of the Department of Agriculture and Consumer Services. Such search warrant may be made returnable at any time up to 6 months from the date of issuance.
933.04 Affidavits.The right of the people to be secure in their persons, houses, papers and effects against unreasonable seizures and searches shall not be violated and no search warrant shall be issued except upon probable cause, supported by oath or affirmation particularly describing the place to be searched and the person and thing to be seized.

From Orwell's novel 1984, The three slogans of the Party on the Ministry of Truth Building.