Tuesday, October 30, 2012


Marking his path to legal history, Aldo, Florida's favorite crusading drug dog, is sniffing for glory at the United States Supreme Court. The Court is reviewing a recent Florida Supreme Court decision which threatened Aldo's career by finding that drug dog alerts are not a reliable indicator that there are drugs in a vehicle, because Aldo's handler in testimony failed to show that Aldo's drug dog alerts were reliable and the alerts are often false. 

Aldo the florida drug dog now at the U.S. Supreme Court on reliability of  drug dog alerts in Clearwater, Largo, St. Petersburg, Florida
Aldo, Weans Himself from Drugs
As the dignified members of the United States Supreme Court deliberate upon Aldo's fate - one hopes not based on that little mistake made on the Court's best rug in Chambers - questions arise as to whether recent studies showing the unreliability of drug dog alerts should be brought to heel.

Especially problematic to the fifty law professors specializing in fourth amendment cases who signed a brief against Aldo are false alerts caused when some unsuspecting citizens happen to have chemicals in their vehicles which could confuse poor Aldo. For example, drug dogs habitually give false alerts allowing for warrantless searches by mistaking the odor of aspirin or vinegar for heroin. 

Despite high rates of false alerts some states have announced plans to begin vast sweeps thru American neighborhoods and housing complexes with drug sniffing drugs, just as Florida's Supreme Court warned that if law enforcement wasn't stopped, they would have drug dogs sniffing our front doors.  
I haven't written a brief on this as those fifty profs did, but should the U.S. Supreme Court ask advice from a Clearwater Criminal Defense Lawyer, my solution is simple, just outlaw aspirin, vinegar and American privacy rights and keep our courageous Florida dogs working.

Monday, October 29, 2012


Is it pschopathic behavior with lack of empathy that makes people overcome conscience to commit crime in Tampa Bay & Clearwater, Florida
Botero, The Thief, 1994
Could there be more going on around us than the break down in social norms and modern cultural decline explored and deplored by the likes of Jacques Barzum in his book From Dawn to Decadence

A recent essay makes an argument that we live in an age with an ever increasing incidence of impersonal psychopathic behavior marked by greater narcism laced with casual callousness and a lack of empathy.

The essay is from a new book called The Wisdom of Psychopaths: What Saints, Spies and Serial Killers Can Teach Us About Success.  It makes some interesting points about the roots of criminal behavior. The Cambridge University Professor includes an argument that the loss of empathy by current generations may be a direct result of their failure to read fiction, because reading imbues the reader with empathy by placing the reader in the position of the characters. 
No, he's wrong there, it's because they're not reading this Florida Criminal Law Blog, as you do my empathetic reader. Anyway, other than some debatably odd conclusions here and there, here are a few excerpts:
In a recent study in London, 120 convicted robbers were asked why they did it. The answers were revealing. Kicks. Spur-of-the-moment impulses. Status. And financial gain. In that order. Exactly the kind of casual, callous behavior patterns one often sees in psychopaths....
...(Yet) in the right context, certain psychopathic characteristics can actually be very constructive. A neurosurgeon I spoke with (who rated high on the psychopathic spectrum) described the mind-set he enters before taking on a difficult operation as "an intoxication that sharpens rather than dulls the senses." In fact, in any kind of crisis, the most effective individuals are often those who stay calm—who are able to respond to the exigencies of the moment while at the same time maintaining the requisite degree of detachment.
I suddenly get a flash of insight. We talk about gender. We talk about class. We talk about color. And intelligence. And creed. But the most fundamental difference between one individual and another must surely be that of the presence, or absence, of conscience. Conscience is what hurts when everything else feels good. But what if it's as tough as old boots? What if one's conscience has an infinite, unlimited pain threshold and doesn't bat an eye when others are screaming in agony? ...
More than social norms which change over time and place, it's conscience that keeps some of us from abusing others with callous criminal behavior. If conscience could be measured and reliably enhanced that frowning Judge at sentencing would be much more likely to grant your Clearwater Criminal Defense Attorney's request for mercy.

Sunday, October 28, 2012


Is it Sumo Wrestling or Aggravated Battery? How can you be certain of what constitutes a crime in Florida? 
The Florida Criminal Statutes may seem difficult to understand for those who aren't Clearwater Criminal Defense Lawyers as they often are even for those of us who are. The statutes are written in ways which may seem purposefully obscure and convoluted, not just so you won't understand them, but with the hopeful intent that a well written law will narrow the breadth of a statute to capture only the acts which the Florida legislature actually intended to outlaw or at least make you hire an attorney or two.

The key to knowing the law is to find what is known as the elements of a criminal offense. The elements of a crime are a set of specific facts which must be proven for every Florida criminal violation of law. Many Florida trial lawyers find that the Florida Criminal Jury Instructions which have been approved by The Florida Supreme Court are a reliable way to find the actual elements of a crime which the prosecution must prove to convict. Jury Instructions are the actual instructions which a criminal trial judge gives to a jury before it deliberates on guilt or innocence in every criminal case. Because these instructions are given to citizen jurors, the language is as straight forward as possible with the goal of being easy to understand. Here's an example of the Aggravated Battery instruction:

8.4 AGGRAVATED BATTERY 784.045, Fla. Stat.
To prove the crime of Aggravated Battery, the State must prove the following two elements beyond a reasonable doubt.  The first element is a definition of battery.
1. (Defendant)
  [intentionally touched or struck (victim) against [his] [her] will].
[intentionally caused bodily harm to (victim)].
Give 2a or 2b as applicable.
2. (Defendant) in committing the battery
a. intentionally or knowingly caused
[great bodily harm to (victim)]. 
[permanent disability to (victim)].
[permanent disfigurement to (victim)].
b. used a deadly weapon.
Definition.  Give if 2b alleged.
A weapon is a “deadly weapon” if it is used or threatened to be used in a way likely to produce death or great bodily harm.
The statute might be difficult to understand but the jury instructions are simple. The State of Florida to prove an Aggravated Battery must first prove that the Defendant touched or struck someone against the victim's will, a simple battery. Then further must show that the Defendant intentionally caused either great bodily harm, disability or disfigurement. If a deadly weapon was allegedly used then the Jury would be given the definition of deadly weapon. Effectively using the Florida Criminal Jury Instructions isn't just for Clearwater Criminal Attorneys, it's also for all the Sumo wrestlers wanting to know what constitutes crime in the State of Florida.

Friday, October 26, 2012


Once again we're left with the troubling question of whether some kind of hallucinogenic drug flows in the water fountains at the Largo Police Department, as Largo police have made a nuisance of themselves by arresting folks on gambling charges for sponsoring Free Poker Games where players can win prizes but don't buy in by purchasing chips according to press reports
Free Poker games rotate in many bars and restaurants offering prizes for the best players. The bars and restaurants pay for the prizes not the poker players. 

Cézanne Card Players Met2.jpg poker players in free poker games in Largo florida are watched by Largo police
Cezanne, Card Players with Largo Officer, 1895
There may be solid reasons for outlawing gambling. But Free Poker is not gambling. Poker is not a game of chance, it's a game of skill. Especially when I'm playing, then it's just a matter of time before the other players somehow end up with all my chips.  
Florida gambling law can be found at Florida Statutes Chapter 849 which makes it unlawful for any player to play for money or other valuables at any game of chance (with an exception for small home poker games, bingo and bowling tournaments, no I'm not making this stuff up.).

If Pinellas County Prosecutors do not dismiss these gambling charges there's a Clearwater Criminal Defense Attorney who will wager that a Judge will dismiss these charges making a finding that the Florida gambling law as applied in this case is too broadly worded, that those involved with the Free Poker Games had no intent to break Florida gambling laws and that the Largo Police Department are a bunch of fools.

Thursday, October 25, 2012


A new Florida Department of Law Enforcement report based on medical examiners' analysis of Florida drug deaths indicates that overall Florida drug deaths have risen even as prescription drug deaths have fallen.  Don't jump the gun in thinking that Florida's Prescription Painkiller Database is responsible for any reduction of prescription drug deaths because as your Clearwater Criminal Defense Lawyer noted a few weeks ago, ten thousand Florida prescription drug deaths have not been sufficient in coaxing Florida doctors and pharmacists to embrace the Drug Database system as doctors continue to unlawfully dispense controlled substances at an alarming rate with only one doctor in twelve using the database. 
The FDLE report notes that alcohol, cocaine and oxycodone were the drugs most often found in bodies of those who died and further notes:

  1. The drugs that caused the most deaths were all Benzodiazepines (545 – includes 461 deaths caused by Alprazolam) Oxycodone (607), Methadone (341), Ethyl Alcohol (269), and Cocaine (294).
  2. The four drugs where more than 50% of the deaths in which these drugs were found were caused by Heroin (95.0%), Methadone (72.2%), Oxycodone (57.4%) and Fentanyl (57.0%).
  3. Heroin continues to be the most lethal drug named in this report. Occurrences of Heroin have increased by 15% and deaths caused by Heroin increased by 23.5% when compared with the last six months of 2010.
live's are place at risk because doctors & pharmacists fail to use the Florida Painkiller Prescription Database
Cezanne, Still Life, with Skull
It isn't enough to make needless arrests or further criminalize painkiller drug use by subjecting users to ever harsher drug sentencing laws. Fear of arrest should never keeps users from seeking help with drug addiction. Instead users should be given help and if arrested be given an opportunity to overcome drug addiction while having drug charges reduced with the help of Clearwater Criminal Defense Attorneys by effective representation in the Pinellas County Drug Court. These people need help not harsh minimum mandatory drug sentences. If new legislation is needed, it would be laws that will subject doctors and pharmacists who fail to use the Florida Painkiller Database to penalties for risking lives for profit.

Tuesday, October 23, 2012


Does crime run in families? Your Clearwater Criminal Defense Attorney has observed plenty of anecdotal evidence that it does. Fresh family members supply the criminal justice system with new faces just as the older generation hits career criminal status. Some families are to crime as the Kennedy family is to politics, made for it. But is it true and if it is, why?
crime may run in families but this is often because of closer police scrutiny when one family member is arrested in Clearwater & Tampa Bay Florida.
Degas, A Crime Family?, 1860
Here's some scientific research from that magazine Criminal Justice and Behavior hidden among the clutter at your dentist's office (odd your dentist reading this stuff, perhaps he has some hidden past). The article by imminent Florida State Professor Kevin Beaver is called The Familiar Concentration and Transmission of Crime, here's a short abstract, if you're too afraid to steal it because of your family's low crime connections: 
Research has revealed that crime tends to concentrate in families and that it also tends to be transmitted across generational lines. The current study expanded on this line of research by examining the familial concentration and transmission of crime in a sample of sibling pairs. Analysis of data drawn from the National Longitudinal Study of Adolescent Health (Add Health) revealed that 5% of all families accounted for more than 50% of all criminal arrests. Additional analyses revealed between-sibling similarity and intergenerational transmission in being arrested, being sentenced to probation, being incarcerated, and being arrested multiple times. Structural equation models (SEMs) were also estimated to examine the mechanisms that might account for the familial concentration and transmission of crime. These SEMs provided evidence indicating that the concentration and transmission of crime was due, in part, to genetic factors as well as mating patterns.
Let's not challenge the most compelling stat, that 5% of all families account for more than 50% of all criminal arrests. If it's true, what does it mean? The article implies that there may be genetic factors, mating factors and I would add perhaps a culture of crime within families factor. But the culture of crime is not the family planning their criminal acts like JFK's folks helping him take the presidency. 
No, there's something sadly sinister here as well. Police work is much easier when law enforcement officers simply tag entire groups of families, friends, churches and schools as potential criminals. Find the criminal, find the affiliations, then fill the jails. 
It's clear that in Largo Florida police angered parents by over-branded 500 youths as gang members. And each of them was watched and even harassed. I often gets calls from people who say that officers are constantly stopping their vehicles, sending unreliable drug sniffing dogs looking for anything to arrest them without search warrants establishing any reason to believe there's misconduct.  A Clearwater Criminal Defense Lawyer sees entire families wrecked with every generation facing imprisonment, the fabric of justice that keeps most of us safe being the noose that chokes others.

Saturday, October 20, 2012


How do firefighters determine if a fire that destroys property is caused by accident or arson? Often the initial investigation and fact finding of firefighters leads law enforcement to make an arrest on arson charges. If an arson investigation is moving forward contact a Clearwater Criminal Defense Attorney familiar with arson investigations and prosecutions as soon as possible to make certain that the process is fair and that any evidence of an accidental fire is not destroyed or mislaid.

if your'e investigated for arson contact a defense lawyer for advice because arson investigations are often wrong in clearwater largo st.petersburg and tampa bay florida
Joseph Wright, Cottage on Fire, 1787
A recent arson arrest of the owner of a Gulfport hardware store in Tampa Bay Florida gives insight into how arson investigations are conducted and into how a good lawyer could mount possible defenses. According to press reports the fire investigators came to a conclusion that the fire was an arson and not an accident based on the following factors:

  1. The fire had multiple areas of origin. Typically an accidental fire would have only one area of origin. For example an electrical fire would come from one failed circuit. 
  2. The fire spread rapidly. This reason is not very strong for a hardware store as one would expect the store to have many paints, solvents and flammable material which would make this blaze have a faster and more intense burn rate than others.
  3. There is surveillance video which law enforcement claims is an indicia of guilt, but has not been further explained.
  4. Though not in press reports one assumes the investigation made factual determinations as to whether the property was insured and how the on-going business was doing financially as a possible motive for arson.

It's often difficult to be certain of guilt in arson cases. A New Yorker article Trial by Fire told of a gruesome Texas arson case where the Defendant was found guilty, sentenced to death and executed for arson murder yet was likely innocent. What went wrong? From the beginning arson investigators jumped to easy assumptions that included tainted expert testimony at trial, which is why you want a Clearwater Criminal Lawyer defending you if you're investigated for arson or any other crime.

Friday, October 19, 2012


After the recent scandal where administrators failed to timely report child abuse at Penn State, Florida has taken action to make failure to report child abuse a felony. According to press reports colleges face significant fines and individuals face felony charges if found guilty under this act:
The Protection of Vulnerable Persons law requires anyone to report child abuse to the Florida Abuse Hotline. Failure to do so could result in felony charges, or if someone at a university fails to report, the school could face fines of up to $1 million.
does the van gogh painting of a mother & baby show abuse? in Florida failure to report suspected child abuse is a felony.
Van Gogh, Baby Abuse?, 1888
Though Clearwater Child Abuse Lawyers agree that the intent of the law is commendable with the goal of protecting children from harm, the law is an example of over-criminalization
How will Florida law enforcement and prosecutors determine that a person knew that an alleged abuse of a child was clearly occurring? Once the police suspect abuse rather than just arresting and prosecuting the abuser, the case will escalate into an investigation of everyone who came into contact with the child yet failed to report any abuse.
The tragedy is that the law will not be seen as overly broad until multiple wrongful arrests ruining the innocent lives of folks who happened to have contact with an abused child, but can't easily prove they never suspected any child abuse. 
For example, a vigilant bus driver notices strange bruises on a child, suspects abuse and reports it. Should the home room teacher, the sunday school teacher, the coach, the music teacher, the school principle all be charged with felonies for failing to report what they may never have noticed? 
And unlike the previous Florida law requiring reporting of suspected child abuse this law applies to anyone in contact with the child not just parents or caretakers. 
If you're being investigated by law enforcement for violating Florida law contact an experienced Clearwater Criminal Attorney for Defense consultation and help.

Thursday, October 18, 2012


A few months ago while wired up to a polygraph machine your favorite Clearwater Criminal Defense Attorney examined reasons why you should never take a polygraph test if asked by law enforcement officers. Having fully recovered from the experience of telling the truth albeit for only an hour, today we'll look at the scientific studies that establish the unreliability of polygraph tests. 

polygraph tests are inaccurate in Tampa Bay, St. Petersburg, Clearwater and Largo Florida
Cezanne, Truth or Polygraph, 1900
In Federal Courts polygraph evidence is never admissible. Why? Because the accuracy of polygraph results has never been established with supporting scientific evidence. In Florida Courts polygraph evidence may be admissible but only if the prosecution and the defense agree. Yet it's interesting to note Florida law requires that convicted sex offenders take at least one annual polygraph every year for "risk management and treatment and to reduce the sex offender's denial mechanisms..."; clearly with the hope that the convicted sex offenders will give accurate information because of the threat that inaccurate information will be ferreted out during polygraph exams. 
Some of the factors that affect polygraph examination validity include the setting of the enquiry,  the quality of the examiner, the quality of the examiner's questions technique, the subject's countermeasures as well as the subject's mental and physical state. All of these variables result in inaccurate tests, which an evaluation study of all of the scientific studies gave as an accuracy range as low as 64% to as high as 98% without any perfect scores. The National Research Counsel of the National Academy of Sciences also looked at the evidence finding that polygraph gave inaccurate, questionable results.
Even the folks who license polygraph examiners at the American Polygraph Association, in putting forth their best arguments as to the validity of the exams state the following:
The data showed that techniques intended for event-specific (single issue) diagnostic testing produced an aggregated decision accuracy of 89% (confidence interval of 83% - 95%), with an estimated inconclusive rate of 11%.  Polygraph techniques in which multiple issues were encompassed by the relevant questions produced an aggregated decision accuracy of 85% (confidence interval 77% - 93%) with an inconclusive rate of 13%.
If a hundred innocent folks are asked questions concerning a murder under a polygraph exam, twenty-three of the innocents will be falsely accused and if someone with guilty knowledge is questioned she (because the best murderers are always ladies) has nearly a one if four chance of not being found out. 
So how can law enforcement get away with using such a flawed polygraph test system? Because it's what they've got. 
Which brings your Clearwater Criminal Defense Lawyer to the paradox of lie detector testing: clearly it can be a very effective tool for law enforcement when someone suspects the lie detector will be accurate, because the subject will parse words carefully in hiding deception or in admitting incriminating facts.

Wednesday, October 17, 2012


It's not unusual for Clearwater Criminal Defense Attorneys to be asked about fundamental fairness in criminal justice as this recent question illustrates:

due process means getting a fair trial not a not guilty verdict at trial in Clearwater, St. petersburg, Largo & Tampa Bay, Florida
Renoir, Self Portrat, 1875
My son was found guilty of possession of drugs. The drugs were found in his car after he was pulled over for an out of date license tag and police used a drug dog to find drugs in the car. My son didn't know the drugs were there. 
At sentencing the Judge gave him much more jail time than we were told he would get before the trial.  But he didn't take the plea deal because he would have lost his job. Can we appeal the sentence as being unfair and unjust? 

Fundamental fairness in American law is defined by the concept of Due Process. Due process derives from the amendments to the constitution which protect Americans from vague laws and require proof beyond a reasonable doubt to convict in criminal cases. Due Process delineates other protections as described here:
 Our Supreme Court has held that the due process clause protects against practices and policies which violate precepts of fundamental fairness, even if they do not violate specific guarantees of the Bill of Rights. Does the challenged practice or policy violate "a fundamental principle of liberty and justice which inheres in the very idea of a free government and is the inalienable right of a citizen of such government."
As you can see the standard of fundamental fairness is fluid depending on the facts and circumstances of each case. In your son's case it's not enough to simply argue that the sentence was unfair and unjust, as you'd need to establish why it is unfair and unjust. The trial itself and the sentencing after the trial will be presumed as fair unless you can establish that there was error by the Judge or Prosecutor which was fundamentally unfair in itself rather than merely creating a result that you didn't want. In other words Due Process doesn't mean you always get a fair result, but does require a fair process.
Did the Judge give your son a sentence within the Florida guideline and scoresheet range? In Florida an unlawful sentence can always be appealed, but a Judge in sentencing after a jury trial is well within his rights to give more time than was originally offered in a plea offer as long as the Judge is not punishing the Defendant for going to trial. 
For example, if the Judge makes a finding that he gave more punishment because a Defendant after testifying at a trial was convicted and therefore arguably committed perjury or that the facts heard at trial convinced the Judge that the case was more aggravated than he'd believed when making the plea offer, then the sentence will be affirmed by an appeals court in Florida even if the sentence is a mandatory minimum sentence for a nonviolent drug crime which a reasonable person would find as being overly harsh, inhumane and unreasonable. If you want to appeal the sentence you'll need to contact a Clearwater Criminal Lawyer to file a notice of appeal for your son as soon as possible as time is of the essence in any criminal appeal.

Tuesday, October 16, 2012


Ever better, faster and accurate cellphone technology may be making fair trials more difficult for Clearwater Criminal Attorneys to obtain. A reporter who followed a Defendant's winding road toward a trial for two years understood when she was struck from the jury panel for knowing too much about the case, but was understandably shocked when she witnessed the presiding Judge telling the jury not to google the case online nor to google the Defendant's name. 
the artist monet reading the day's newspaper couldn't know all we do about criminal trials  and defendants by googling them, Tampa Bay Judges must strive for fair criminal trials in Florida
Renoir, Monet Reading, 1872

Giving rise to the question of how fair can jury trials be when all of the information which could preclude a fair trial is readily available on most cellphones by merely googling the Defendant's name. Has technology precluded the possibility of fair trials? If other Judges are as eagle-eyed as District Judge Clancy Smith, then the right to a fair and impartial jury may be protected well into the future.
The presiding Judge later spoke on why it's important to cap juror's knowledge of relevant facts to only those facts presented in the courtroom; even better, the Judge forbids cellphone use during trials:
"I tell all the jurors you have to decide the case on what you hear in the courtroom because so much of that would be inadmissible and it's not proven and not true sometimes," said District Judge Clancy Smith.
Jurors can learn things that have no bearing on the case, like if the person has filed for bankruptcy or been sued or has previous charges -- things that could sway their thinking during deliberations.
"The fear is you will convict him because of his past, not because of what happened here and so, these are the main reasons you can't let them look at something not screened by a judge."
The Judge is right to be concerned. The vast majority of cases in the American Justice System end with a plea bargain. When a Defendant asserts his right to a jury trial it's often due to special circumstances which the jury is forbidden to know.  Plea offers and plea agreements should be open, transparent and based on the facts of the case laced with the defendant's scoresheet and guideline calculations; but because Florida prosecutors and even Judges must face the electorate other factors often play a role in plea negotiations where jail time is demanded in situations where no jail would be a reasonable plea offer. 
When the Defendant demands a jury trial, all that mattes is that he is asserting that he is not guilty and therefor must be given a fair opportunity to hear the facts and evidence against him and to present any witnesses or evidence in his behalf. In Tampa Bay, Florida one recent high profile murder case had to called off when jurors were found to be gossiping about the possible facts of the case even as the jury was being selected. The goal of every Florida criminal trial must be to give the Defendant a fair trial by tamping down jury information so that due process rights are respected even if he's represented by a Clearwater Criminal Defense Lawyer who views that iPhone of yours as nothing less than magic.

Monday, October 15, 2012


Under the common law from time immemorial witnesses are barred from listening to the testimony of other witnesses during a trial. This is known as the rule of Witness Sequestration which Clearwater Criminal Defense Attorneys often invoke by motion after a Jury is sworn but but before the first witness testifies. The reasoning behind Witness Sequestration is that a witness who hears other testimony during a trial will be influenced by that testimony adding to the possibility of collusion or falsification of evidence.

Here's an excerpt of Florida's codification of the common law rule on witness sequestration:
90.616 Exclusion of witnesses. 
At the request of a party the court shall order, or upon its own motion the court may order, witnesses excluded from a proceeding so that they cannot hear the testimony of other witnesses .....except in a criminal case, the victim of the crime, the victim’s next of kin, the parent or guardian of a minor child victim, or a lawful representative of such person, unless, upon motion, the court determines such person’s presence to be prejudicial.
federal case agents like zacherie zacharian do not have to abide by Witness Sequestration rules as do other witnesses in criminal trials Federal Court in Tampa Bay the Middle District of Florida
Degas, Zacherie Zacharian,1886
Under Florida law even the victim of a crime is not guaranteed a seat during the trial if it may be prejudicial to a fair trial. As the goal of every criminal trial should be to give the Defendant a fair trial you'd think that this rule of witness sequestration would be common to every court in Florida, but the rule does not always apply in Federal trials though Federal Rules of Evidence 615 is similarly written.

In Federal criminal trials the Assistant United States Attorney trying a case selects a Government "case agent" who sits with the prosecutor throughout the entire trial, listening to all of the evidence, then testifies.

Here is a recent email received from a fellow lawyer and budding socialist, Steven Kalar, Senior Litigator, Federal Defender's Office, San Francisco:
Comrades:    It is an aggravating thing, to have the government's key witness sit through a trial, watch all of your crosses, and adapt his or her testimony in response. That's what happens when a government witness is designated as a "case agent"--  a regrettable exception to the sequestration procedures in Federal Rule of Evidence 615.  The case of Valencia-Riascos illustrates this unfair government gambit. U. S. v. Valencia-Riascos (9th Cir. Oct.11, 2012). In Valencia-Riascos, the "case agent" was an ICE Agent named Miller. Miller was the only witness to an assault alleged against the defendant. Agent Miller was not only allowed to sit and watch the entire trial, but was also allowed to testify last (after hearing all the crosses). The district judge even refused to give the (relatively standard) cautionary instruction about law enforcement witnesses.    
Assistant Federal Defender Rebecca Pennell went after the sequestration rulings under Federal Rule 615, alleging a due process violation... Judge Graber, unfortunately, was unpersuaded in all respects (though she threw us a little helpful scrap of dicta at the end of the case). 
Although this California opinion is not binding in the Middle District of Florida in Tampa, the Courts in Florida follow a similar rule allowing government case agents to avoid the rule of sequestration. Your Clearwater Criminal Defense Lawyer agrees that fair trials in Florida Courts require fair rules of criminal procedure, shouldn't Federal Courts require case agents to either testify before hearing all the evidence or leave the courtroom like other witnesses?

Sunday, October 14, 2012


former cop robs banks in St. Petersburg Florida; violent acts can be as addictive as drugs but are not a good reason to go under florida guidelines
Picasso, Before Robbing Banks
Risk taking can be as addictive as drugs, but mixing drugs with the ultimate risk of Florida bank robbery makes for a toxic mix for a Clearwater Criminal Defense Attorney to unwind. The crack bank robber who recently called 911 saying that he was about to rob another Tampa Bay bank is a former police officer with a huge drug problem. His life spiraled out of control not only from drug addiction but seems to have escalated into the need to take ever greater risks with an addiction to the risks of robbery itself. As press reports note:

Money is rarely the sole motivator in bank heists, says William Rehder, a bank robbery expert and 33-year FBI agent. What drives the robbers, the thing that keeps them coming back to steal even more, is the excitement of the act itself.
"All bank bandits are serial," Rehder said. "Robbing a bank is as much an addiction as drugs can be."

That's likely what it was for Kane...as Kane himself told authorities after each time he was busted, it was addiction, the primal rush one gets from carrying out something as invigorating and dangerous as taking someone else's money, that led to his downfall.

Yet even if violent acts such as robbery are addictive should Courts take that addiction into account to lower the Florida sentencing scoresheet and guideline as might be reasonable with a proven drug addiction? Violent crimes by their very nature must be treated by the Courts in Florida with more care than nonviolent crimes.
Criminal sentencing has many objectives which Clearwater Criminal Lawyers often argue such as the hope for rehabilitation or the need for punishment, but protecting the public from violent acts is a primary goal which in Tampa Bay Florida will always be the sentencing Court's primary concern no matter what addiction is proven.

Friday, October 12, 2012


What should you do if you find you have an active arrest warrant issued from another state? Here's a question your Clearwater Criminal Defense Lawyer was recently asked:
I'm very scared of being arrested for something I didn't do. What happens when another state issues an arrest warrant? I moved to Florida several years ago. I've just found out that there is a felony arrest warrant for Fraud or Scheme to Defraud in Atlanta, Georgia. From what I can figure out the warrant was issued from the company I used to work for and is a misunderstanding that I thought was already cleared up and I have the paperwork to prove it.  Will Florida police arrest me for this? If I'm innocent can I resist the arrest? What should I do?

even great oarsmen can't escape an out of state warrant  as the warrant  will be honored in Tampa BayFlorida
Renoir,  The Oarsmen, 1879
You may think it was just a 'misunderstanding' in Georgia, I hope for your sake you're right, but a Georgia Judge signed an arrest warrant based on probable cause that you committed Felony Fraud in Georgia. You'll need to hire an attorney in Georgia to persuade the prosecutor that the criminal case against you should be dismissed. Prosecutors in Georgia will not likely look into your case until after you turn yourself in, make a court appearance and only then will you be allowed to seek a bond. 
If you choose not to turn yourself in to Georgia authorities, then you need to understand that at anytime you may be stopped by Tampa Bay Police and arrested in Florida as an arrest warrant from another state will be honored by Florida law enforcement. 
Although it's true that you can resist an unlawful arrest in Florida without using violence, a Florida arrest based on a warrant from Georgia will be deemed lawful and any attempt to resist the arrest will result in Florida criminal charges of resisting arrest without violence.  
If you are arrested under the Georgia warrant in Florida, you will be kept in detention without a bond as you'll be deemed a flight risk. Instead Florida will contact Georgia to determine if Georgia wants you to be extradited back to Georgia to face the Felony Fraud charge. In Florida you will be given an extradition hearing to determine if Georgia has the right bring you back and that you are the person whom Georgia seeks with matching fingerprints or DNA. At an extradition hearing a Clearwater Criminal Defense Attorney could argue any false identity issues, but will not be permitted to argue the underlying merits of the Felony Fraud or Scheme to Defraud case against you nor your innocence as those issues are for a Georgia Court to determine. 
The smartest thing for you to do is not to wait for the arrest warrant to come to you, rather you must go to it by cleaning up the matter in Georgia immediately.

Thursday, October 11, 2012


Florida law enforcement angered parents by falsely labeling large number of juveniles on secret gang membership lists even when they never violated the law. Clearwater Criminal Lawyers  pointed out that the over-broad characterization from the Largo Police Department, the St. Petersburg Police Department and the Pinellas County Sheriff's Department was not only unfair and un-American, but actually was useful only in grooming these youths into the role of law breakers rather than law abiders. Close police scrutiny on any citizens based on their merely speaking to other citizens at the same school or church is wrong and violates our rights. 

youths in Florida are being falsely labeled as gang members, in Pinellas & Tampa Bay  there'll be one list, an appeal process & notice
Van Gogh, Young Man, 1888
An entire class of citizens is being branded as part of the criminal underworld even when they never violated Florida law. Finally, local authorities in Pinellas County, Florida are looking at changing the criteria for inclusion of a citizen as a gang member. Action needs to be taken immediately to correct the unfairness of the gang lists with these solutions as noted in TBT:

  1. There must be mandatory notification of the parents or guardians of any juvenile before being listed as a gang member. 
  2. There must be an appeal process for those who believe they've been falsely labeled. 
  3. There must be one central database of names for Pinellas County rather than each agency having a list which could be abused.

The absurdity of these lists which were created by a Florida Statute on Gang Prevention is that the laws create gang membership even where there is no real gang affiliation. One unfortunate but laughable result of over-broad labeling by law can be found in the fact that the FBI is being sued because it labeled the entire fan base of a heavy metal rap band as gang members. But at least these thee steps will stop the Largo Police Department from abusing its authority by absurdly listing 500 juveniles in that small city as gang members and by giving parents the ability to appeal arbitrary gang affiliation decisions with due process rights enforced by Clearwater Criminal Defense Attorneys.

Monday, October 08, 2012


Imagine being falsely accused, arrested for something you didn't do, then prosecuted with unreliable lab failures, errors and false expert testimonyfalse forensics, fabricated DNA evidence or unreliable fingerprint evidence before facing a Florida Judge who sends you to a grim Florida prison. Imagine telling your loved ones throughout the years of this torturous ordeal that you're innocent while feeling their faith in you ebbing away with your freedom.  Yet Clearwater Criminal Defense Attorneys fight for your innocence till a Judge agrees (we're imagining after all) that you've been wrongfully convicted and you, blinking from brutal prison conditions are finally set free. 
renoir's self portrait portrays a man with faults, in Florida prior faults keep the wrongfully convicted from being compensated for their time in prison
Renoir, Self Portrait, 1910
You might think the State of Florida owes you something for their failures and their mistakes in a failed investigation, prosecution and conviction of an innocent man. 
Yet the wrongfully convicted in Florida are not being compensated. Four years ago Florida passed a law granting compensation for those wrongfully convicted by Florida Courts and Prosecutors. How much is wrongfully taking someone's freedom worth? Not much if you're unlucky enough to be wrongfully convicted in Florida, as only three people have received any compensation, according to press reports
This is true because Florida requires that the wrongfully convicted have clean hands with no prior record whatsoever for any compensation. Twenty-two people have been exonerated from murder charges since 1972, hundreds have been exonerated from other convictions. all that should matter is whether there has been a false conviction, if so there should be compensation for that wrongful conviction as a matter of fairness. Here is a comparison of how other states compensate for wrongful convictions and arguments on why there should be compensation for wrongful convictions. 
Your Clearwater Criminal Defense Lawyer is reluctant to tell how much compensation the wrongfully convicted receive as the folks who read this Blog are apt to get themselves arrested and convicted in the belief that I'll find new evidence, get the conviction reversed and sell the movie rights, all for a law that pays $50,000 per year incarcerated with a cap of two million dollars. Forget the crime just write the screenplay and we'll split the money.

Sunday, October 07, 2012


Doctors and pharmacists in Florida could find themselves in need of a Clearwater Criminal Lawyer for failing to check the database of the Prescription Drug Monitoring Program allowing addicts of pain killers such as oxycontin or xanax to receive multiple prescriptions.  The law was meant to save lives by placing a database of pain killer prescriptions which doctors and pharmacists would use to determine if someone was abusing pain killers with multiple prescriptions from different doctors. 
Florida Doctors sow death from pain killer overdoses by not using drug database
Van Gogh, The Sower, 1888
According to press reports many Doctors aren't taking the problem seriously as only one in twelve doctors who prescribe pain medication have signed into the database, despite over 10,000 Florida deaths from pain prescription drug overdoses over a six year period.
For those Doctors who run pain clinics or prescribe highly addictive pain killers on a regular basis here's a bit of unsolicited advice from a Clearwater Criminal Defense Lawyer and former Pinellas Drug Prosecutor familiar with drug prosecutions in Florida. 
First you might want to remember the criminal case against Doctor Bob, a pain doctor who was given a twenty year sentence in Federal Court for writing prescriptions for oxycondin, vicodin and other drugs which led to the death of five addicted patients; although the Federal Appeals Court has granted an appeal his life is still ruined. Any Pain Doctor's failure to use the Monitoring Program's database will be an effective piece of evidence against that doctor if ever charged with Unlawful Dispensing of Controlled Substances or Conspiracy to Traffic in Drugs, because it takes away a possible defense of having no idea a patient had other pain prescriptions. So sign up, save a patient's life while saving yourself a ten year minimum mandatory drug sentence while your at it.

Thursday, October 04, 2012


Federal Judges are appointed for life. Recently one of the oldest Federal Judges was still presiding over his Kansas Courtroom until his death at 104 with a hopeful motto of 'no long trials.' State Judges in Florida don't have that luxury because they face retention votes every few years. 
The Republican Party of Florida with a handful of big (bigger than big billionaire) money players from outside the Sunshine State want to undermine justice on the Florida Supreme Court by forcing out three outstanding Judges. This attempt to pack the Florida Supreme Court is absurd because the justices have proven themselves to be nonpolitical. One of the Judges was even reappointed by Jeb Bush. 

the florida supreme court is at risk of being destroyed by wreckless attacks on the judiciary playing cards with the future of justice
Cezanne,  Playing Cards for Florida Justice
As fair minded Floridians we can all agree that we're best served by an independent judiciary where wise legal decisions are not made based on political bias but by a close reading of a certain Clearwater Criminal Defense Lawyer's blog every hour to check for updates. 
Yet without good cause these three fair and unbiased Judges on the Florida Supreme Court are being challenged as somehow unfit to serve.  Florida Bar members recently showed overwhelming support for members of the Supreme Court of Florida with upwards of 90% of the lawyers, many of whom are Republicans, voting to retain the three judges up for retention this year. The bar asked attorneys to vote on the following criteria:
  1. Integrity
  2. Judicial Temperament
  3. Impartiality
  4. Freedom from Bias or Prejudice
  5. Demeanor on the Bench
  6. Courtesy from the Bench
The pull results as found at the Florida Bar are as follows:

A ballot mailed in August to all lawyers residing and practicing in Florida asked whether the incumbent justices and appeals court judges should be retained or not, and asked that they consider eight attributes in making their decisions...
The Bar sent out 68,243 ballots to in-state members in good standing and 7,857 lawyers participated. Only responses by lawyers indicating considerable or limited knowledge of the judges were included in the poll results.

For the Supreme Court, poll results indicate support for retention of:
    § R. Fred Lewis by 92 percent.
    § Barbara J. Pariente by 89 percent.
    § Peggy A. Quince by 90 percent.

The ever improving NYT weighed in as well:

By announcing its opposition to the three justices, the Republican Party avoids clashing with a law that prevents political parties from endorsing judicial candidates.

Even your favorite Clearwater Criminal Defense Attorney doesn't always agree with the court, especially it's recent failure to find Florida's Drug laws unconstitutional, where no knowledge of drugs is required to convict, but all of us should unite in respecting the Court by supporting some good Judges who are unfairly being attacked.

Monday, October 01, 2012


One of the tragedies of America's unforgiving war on drugs is the large number of young people killed because of an overdose. Clearwater Criminal Lawyers find that the harsh Florida drug laws and even harsher Florida drug sentencing not only corrupt prosecutors but contribute to a fear of punishment that pushes otherwise law abiding citizens toward making foolish choices. 

new 911 good samaritan law in Florida stops drug arrests when 911 is called to prevent drug overdose in Tampa Bay, Largo, Clearwater & St. Petersburg
Van Gogh, The Good Samaritan
Tragically the reasonable fear of arrest and prosecution for possession of drugs often makes even good people make the mistake of not calling for an ambulance immediately even when timely medical intervention could save a friend's life from a drug overdose. Often precious time is wasted in an effort to 'clean up' the area where the drugs were ingested, before calling 911.

Florida has failed to follow a reasonable path toward the decriminalize some drugs, but Florida has responded to the fear of drug arrests during an overdose with the 911 Good Samaritan Law. Here is an excerpt from the law which became effective law in Florida as of today, October 1, 2012:
"911 Good Samaritan Act;" providing that a person acting in good faith who seeks medical assistance for an individual experiencing a drug-related overdose may not be charged, prosecuted, or penalized for specified offenses in certain circumstances; providing that a person who experiences a drug-related overdose and needs medical assistance may not be charged, prosecuted, or penalized for specified offenses in certain circumstances; providing that the protections from prosecution for specified offenses are not grounds for suppression of evidence in other prosecutions; amending mitigating circumstances under which a departure from the lowest permissible criminal sentence is reasonably justified to include circumstances in which a defendant was making a good faith effort to obtain or provide medical assistance for an individual experiencing a drug-related overdose, etc.
The Florida law protects from drug arrest and drug prosecution those making 911 calls to help someone who may have overdosed. The hope is that drug abusers will look out for each other rather than fear arrest without requiring the services of any Clearwater Criminal Defense Attorneys to invoke the protections and rights of the new 911 Good Samaritan Law.