Monday, May 28, 2012


Tampa Bay, Pinellas and Miami, Florida have become the epicenter of identity theft tax fraud with thieves stealing social security numbers, then using the information to file fake taxes and to take the tax refund in the form of an IRS credit card. Some argue that the IRS is at fault for making it all too easy to accomplish the crime by sending out immediate tax refunds as credit cards before doing any kind of factual or mathematical examination of the tax forms.
Portrait of a  Clearwater Postman in Largo, Florida
 Van Gogh, Postman Joseph Roulin, 1888
By the time the IRS gets around to verifying the validity of information the money is long gone and at least at this point sadly, I must report that not one dime of it has made it into the willing hands of your favorite Clearwater Criminal Defense Attorney.
The only benefit appears to be that some violent criminals in Florida have traded their guns for laptops giving up doing violent crime for the lucrative, easier and safer pursuit of fake tax refunds fueled by furious acts of identity theft.
One wonders if it'd be easier just to pay criminals not to do violent crime? Happily, this experiment is moving forward with CBS more or less launching a national tutorial on how to conduct tax fraud identity theft crime and Forbes donning identity theft as a fun in the sun Florida vacation crime.
Yet the mournful NYT noted that postal workers have been beaten and one was even killed by Florida tax fraudsters who wanted the postal workers master pass key to gain access to the credit cards being sent to millions of folks across the country from the IRS, apparently to everyone in the United States who is not a Largo Criminal Defense Lawyer.

Thursday, May 24, 2012


There are apparently two types of citizens in Tampa Bay and Pinellas, Florida - police officers and the rest of us. According to a recent news article which notes that police officers are not being charged with  red light traffic citations. Running a red light caught on one of those ubiquitous cameras sitting like frozen yellow-eyed eagles atop our red lights will bring a warning to an officer but a hefty ticket fine for the rest of us, which isn't sitting well with citizens and at least one Clearwater Criminal Defense Attorney sitting with arms crossed at a red light somewhere in Largo.
Bay News Nine has reported that in St. Petersburg not only police but anyone driving a city vehicle who blows thru a red light is not being ticketed. 
There is rarely, if ever, a good reason to run a light even for law enforcement officers. In a high speed chase blowing thru a red light risks not only the lives of officers but of other vehicles, bike riders and pedestrians who happen to be near the intersection. 
ever present eagle eye of a red light camera in pinellas and tampa bay
Ohara Shoson (1899)
But we're not talking about high speed chases as most of the tickets are being given to police officers who are running late for some free coffee and donuts or just feeling in the mood to break the law. If the law applies to us, it must to them. The punishment must be the same, otherwise officers develop the unfortunate and too often true attitude that they are above the law. 

Law enforcement officers in non-emergency situations should have to appear before a Judge to explain their reasons for running the light just as you would have to do, without your favorite Largo Criminal Defense Lawyer who would rather spend a day in hell than spend time arguing over traffic tickets. And by the way shouldn't officers also be paying for the 'free' coffee and donuts or face theft charges, as good officers should be taking and receiving nothing but their paychecks.

Sunday, May 20, 2012


A defendant in state court in Florida is allowed to plead guilty in what is conveniently known as a plea of convenience. A judge will accept a defendant's guilty plea regardless of whether the defendant is in fact guilty. All the defendant need do is state during the plea colloquy that he is in fact innocent of the charged crime, but wants to plea guilty anyway, while with bated breath his Clearwater Criminal Defense Attorney curses the result.
In federal court in Tampa Bay and Pinellas a defendant may have difficulty changing his plea to guilty unless he states on the record that he is pleading because he is in fact guilty. Further in federal court someone who has plead guilty may withdraw his guilty plea before being sentenced if the defendant shows fair and just reason for the court to grant the request. 
The factors federal district courts consider in evaluating a fair and just reason to withdraw a plea of guilty include: “(1) the plausibility of the reasons prompting the requested change of plea; (2) the timing of the defendant’s motion; (3) the existence or nonexistence of an assertion of innocence; and (4) whether, when viewed in the light of emergent circumstances, the defendant’s plea appropriately may be characterized as involuntary, in derogation of the requirements imposed by Fed.R.Crim.P. 11, or otherwise legally suspect.” Before telling this to your favorite federal judge maybe you should contact your Clearwater Criminal Defense Lawyer.
a defendant can plea guilty for convenience
I want to plead but I didn't do it.
In an interesting murder case involving a change of plea for convenience the Supreme Court noted, "A guilty plea may not stand if it is induced by threats, misrepresentation, or improper promises. The plea must be entered by a defendant who understands the situation and who has been neither deceived nor coerced. A guilty plea may not be the product of incomprehension on the part of the defendant. A guilty plea which is ‘the tainted product of ignorance’ is also void," see, North Carolina v. Alford, 400 U.S. 25, 31 (1970)Yet in the same case just quoted the Supreme Court would allow a defendant to plea guilty to murder even though he maintained that he was innocent of the crime, but that he wanted to plea to avoid a possible death penalty. The issue for the court was whether a guilty plea which was clearly made out of fear of the death penalty could be accepted by a court when it is accompanied by protestations of innocence from the defendant.  The court decided that when someone is accused of a crime, he may "voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.”
Painting: Lorenzo Lotto, Portrait of Andrea Odoni, 1527

Tuesday, May 15, 2012


We often think of DNA evidence as being infallible, but how reliable is DNA evidence in actual use? Even your favorite Clearwater Criminal Defense Lawyer would think twice about a conviction in Pinellas and Tampa Bay criminal courts that is based only on a DNA analysis, because errors can occur in the sample, in the testing and in the handling of DNA at the scene of a crime.
But here is some information for you that jurors never hear in any criminal trial in Pinellas and Tampa Bay from the testifying DNA experts of the Pinellas County Sheriff's Office or the FBI:

Scientists have demonstrated that it is possible to fabricate DNA evidence undermining the credibility of what has been considered the gold standard of proof in criminal cases. The scientists fabricated blood and saliva samples containing DNA from a person other than the donor of the blood and saliva. They also showed that if they had access to a DNA profile in a database, they could construct a sample of DNA to match that profile without obtaining any tissue from that person.  see DNA Evidence Can Be Fabricated, Scientists Show -

Worse from the viewpoint of a Clearwater Crime Defense Lawyer, “You can just engineer a crime scene,” said Dan Frumkin, lead author of a paper by the journal Forensic Science International: Genetics. “Any biology undergraduate could perform this.” see Authentication of forensic DNA samples
DNA Profiling depends not only on accurate analysis but a database that is infallible and as you can see it also depends on the DNA being real. Are the FDLE and PCSO DNA analysts who testify in criminal trials in Pinellas and Tampa Bay courts familiar with the possibility that the DNA at a crime scene may have been manufactured? And if so, shouldn't they be telling these facts to Tampa Bay jurors without a Clearwater Criminal Defense Lawyer having to ask them?

Reliability weak points
Errors can occur if DNA samples are damaged or contaminated from improper handling. Limited amounts or mixtures of DNA profiles can increase misinterpretation of results.
DNA sample
One case study
Houston Police Department Crime Laboratory
Houston shut its police crime lab's DNA division for several years after 2002 because of problems with the education and training of examiners, misleading testimony and improper evidence storage, leading to at least three exonerations and retesting of thousands of cases.

Sunday, May 13, 2012


Word first reached me of the new 11th federal appeal from a fellow defense counsel "This is a killer in our district. Safety valve is the only hope for 90% of these guys." And it wasn't long before I knew that he was right. In federal cases in the Middle District of Florida an area that encompasses Tampa and Pinellas, there's often limited discretion for the judges to reduce sentences in complex criminal drug cases, the safety valve for those defendants with no prior record has helped them serve a little less jail time, make amends to America and get on with their lives upon being deported  where they'll probably never again need the services of a Clearwater Criminal Defense Attorney.

Safety valve requires a defendant to have no criminal history, to accept responsibility for his actions, and to co-operate with authorities to the extent of giving complete information as to the unlawful acts he committed. The benefit for the Defendant is a two level reduction (a few months) in his sentence off the top, but more importantly it gives the sentencing Federal Judge the ability to go under the mandatory minimum sentence (often a few more months), this on an overall sentence that's over or at ten years. Instead of a safety valve in these drug cases there'll be more prison for those caught, higher taxes for all of us to pay for that prison and for the prisoners further time away from their families. And for law enforcement there'll be that much less incentive for defendants to co-operate as Pinellas Criminal Defense Lawyers tell drug defendants transporting significant amounts of cocaine that in Tampa Bay there is no longer any opportunity of gaining safety valve for them. 

Here is the case. In a nutshell it states that safety valve is not applicable in cases involving vessels transporting drugs to America. see United States v. Edgar Alfonso Pertuz–Pertuz, No. 10– 15800  (May 11, 2012) Appeal from the United States District Court for the Middle District of Florida Panel: 
federal court of appeals takes away safety valve for drug defendants
Bosch,  1492, Ship of Fools
The question presented by this appeal was whether the safety valve provisions of 18 U.S.C. § 3553(f) apply to defendants convicted of drug offenses under Title 46 – in this case, conspiracy to possess with intent to distribute cocaine while aboard a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. §§ 70503(a)(1), 70506(a) & (b). The Eleventh Circuit held that they do not. 
The defendant pleaded guilty to committing drug offenses on the high seas and was sentenced to 120 months, the statutory mandatory minimum sentence. He appealed, contending that he should instead have been sentenced below the mandatory minimum in accord with 18 U.S.C. § 3553(f), the “safety valve” provision. Relying on what it called the plain text of 18 U.S.C. § 3553(f), the Court held that the safety valve provision applies only to convictions under five specified offenses: 21 U.S.C. § 841, § 844, § 846, § 960, and § 963. It further held that the defendant was not convicted of an offense “under” one of the statutes, even though the Title 46 offenses for which he was convicted reference the penalty provisions of 21 U.S.C. § 960. The safety valve statute, the Court reasoned, refers to an “offense under” section 960 – not to an “offense penalized under” section 960 and not to a “sentence under” section 960. 

Tuesday, May 08, 2012


A new federal study by the Department of Justice on reentry of prisoners into society concludes that those in jail are adversely affected by the crimes and violent acts they observe while incarcerated. The constant witnessing of crime combined with  being the victim of countless random crimes such as thefts, batteries, assaults, sexual attacks and other violent acts greatly increases the chance of failure when a prisoner is released into society.
Further, the more brutal the conditions of the prison the more likely it is that a released person won't find successful employment, will fail in the conditions of probation nor even be successful in finding reunion with family and friends, not to mention any Clearwater Criminal Defense Attorneys.
When the prison system doesn't rehabilitate but actually increases the chances of further antisocial behavior because of the violence found there, what can be done? The prison system's first goal must be  to rehabilitate prisoners. This study concludes that rehabilitation will not occur unless the prisoners are given a crime-free environment while serving their time in Pinellas and Tampa Bay jails. Instead our local prisons such as the Pinellas Jail are overcrowded and understaffed, resulting in the prisoners being treated as animals rather than future citizens who could contribute to our society. It's a waste that must be addressed.

Clearly, this study should be used by attorneys at sentencing for nonviolent crimes to argue that the more time a defendant has served in prison the more likely it is that antisocial behavior was caused by the prison sentence served and that further time in prison will only make the person more antisocial, at least that's what your favorite Pinellas Criminal Defense Lawyer will argue in mitigation of a sentence.

From page 100 of the prison study: We know from previous research that individuals who experience coercive events are likely to act out in anger and subsequently criminal behavior. The fear is that these individuals will be caught in a cycle of chronic offending. Colvin notes that the “individual is not merely a passive recipient of coercive forces, in both the background and foreground, the individual is active (although usually unwittingly) participant in the creation of coercive forces that reinforce his or her social-psychological deficits that compel and motivate behavior” (2000, p. 138). 
Our research shows that individuals who indicate that they have witnessed or directly experienced victimization and perceived the environment was hostile and threatening were more likely to fail on all of the outcome measures included in the study. This finding held even while controlling for other important re-entry variables, namely age, prior record, employment, and treatment in the community. The findings validate what others have suggested, that we need a cultural shift in our prison system.
(Bird Cage by Suzuki Harunobu)

Saturday, May 05, 2012


Should you ever take a polygraph if asked to do so by law enforcement, an employer or that inquisitive airport security fellow who thinks the expensive green leafy substance known as Fortnum and Mason's tea you're bringing into London's Gatwick Airport is something smokeable? 
The first lie detector machine was invented in 1917 by William Marston who claimed he could reveal deception by observing levels of systolic blood pressure. It's not known by your favorite Pinellas Criminal Defense Attorney if Marston believed his claims as I've not had an opportunity to hook him up to one of the machines, but I do know that in 1923, that in Washington, an Appeals Court after lengthy tea fueled hearings determined that there was insufficient scientific evidence to support the lie detector's use in court.e. This decision is still enforce throughout the entire United States even in the Tampa Bay and Pinellas Criminal Court System in Florida, unless both the prosecution and the defense stipulate that the results of a lie detector can be used in court.
Today's polygraph machines record the involuntary physiological responses from the human body while being asked questions by an examiner and include measurements of not only blood pressure as in Marston's old method, but respiratory, cardiovascular, and sweat glands with the idea that jumps in physiological levels indicate deceitfulness rather than the long hidden, latent memories of unfortunate television choices while young which many of us still suffer from.

Happily for the guilty liars and Clearwater defense attorneys among us, there are some effective ways to distort the test by making the measurements meaningless:
1. take a few sedatives or a drink to reduce anxiety.
2. use an antiperspirant to prevent sweating - which come to think of it might be something you could  every day - remember this is legal advice from a Clearwater Criminal Lawyer and besides you might be near me in line. 
3. inflicting pain upon yourself with a pinch, a pin or a bite within your cheek for the entire questioning.

Or even better just don't take the test as studies show the polygraph test is unreliable and deceptive though in widespread use. Instead tell whoever wants you to take it to read this blog hourly and that the National Academy of Sciences conducted an extensive scientific review of the research on polygraph testing finding it to be unscientific because it had no established fixed standards, concluding that, "Almost a century of research in scientific psychology and physiology provides little basis for the expectation that a polygraph test could have extremely high accuracy....the inherent ambiguity of the physiological measures used in the polygraph suggest that further investments in improving polygraph technique and interpretation will bring only modest improvements in accuracy."
Polygraph equipment measures the variability of a person's heart rate, blood pressure and respiratory rate when asked a series of questions (see the Washington Post on Polygraph Evidence)
Reliability weak points
Body changes registered
by polygraph equipment
can be subjective to interpret, caused by
anxiety rather than guilt.
Heart rate fluctuations registered on a polygraph may indicate nervousness, not guilt.
A 2003 National Academy of Sciences panel found polygraph testing lacks sufficient scientific validity and accuracy to justify its use in screening federal employees but useful as an investigative tool. Several federal circuit and state courts deem polygraph evidence inadmissible.

Tuesday, May 01, 2012


Pinellas County, Florida just released a Criminal Justice System Study on an interesting question, why has its prison population soared even as its crime rate and its population has fallen. Because the Pinellas County Jail is overcrowded it faces significant risks and challenges as does your favorite Clearwater Criminal Defense Attorney when he makes his way into the cold, gray prison you support with your tax dollars. 
In fact according to the report overcrowding poses "the most significant challenge to the successful operation of the Pinellas County jail. An overcrowded facility fundamentally undermines the ability of staff to insure the safety and security of inmates, staff, and the public. Overcrowding presents the single greatest jail liability risk to a county, raising the specter of law suits, consent decrees, and court oversight of county jail operations. In the past three decades overcrowding is the most common reason why jurisdictions throughout the United States have been sued over the conditions of their jail facilities."
The report also notes that "over the last six years the per capita arrest rates in Pinellas County have fallen below state averages. Yet the jail incarceration rate is above average. This may in part be explained by a circuit court felony case filing rate that is far above average, increased felony case disposition times, and a jail that increasingly consists of pretrial felons." See, serious crime rates down.
Yet the report notes that not all crime has fallen, much to the joy and happiness of at least one Criminal Defense Lawyer in Clearwater. Even though all crime has fallen, some arrests are up, see the crime viewer map. For example, arrests for drug crimes, crimes against property and assaults. 
The report notes that violent crimes in Pinellas County from 1990 to 2006, "overall, as a category, crime reports for these offenses have declined 24% since 1990. Specifically, crime reports have declined by 41% for robbery, 22% for aggravated assault, and 17% for murder. Forcible sex offenses, however, have increased 28% in the last 17 crime reports have also shown a significant decline between 1990 and 2006, 31%. Crime reports for burglary have declined 45%, for larceny have declined 36%, and for vehicle theft have declined 32%. Here is a map showing crime rates in Pinellas, Florida.
Many of these crimes other than sex offenses are highly subjective as to how they can be charged, how many counts to charge and even if they should be charged as felonies or misdemeanors. In many places in Florida good officers might not even make an arrest for a minor incident making wise choices which benefit all of us.
Should someone smoking a joint or someone who breaks a window or someone who threatens another at a bar really be arrested and spend time in jail for these crimes? Pinellas officers should use discretion to determine whether to make an arrest. 
It's interesting that the Pinellas County Sheriff's Department is under fire for inappropriately investigating drug cases. The answer seems to be that Pinellas Deputies and Officers under pressure from supervisors to make more arrests even as crime is falling.

Everyone is an Outlaw in Pinellas even Japan's outlaw hero from a far away era.
Everyone is an outlaw in Pinellas county even Goemon an outlaw hero of Japan
Ishikawa Goemon played by kabuki
actor Arashi Hinasuke II
(painting by Toyokuni III,1863)