Tuesday, January 29, 2013


Your favorite Clearwater Criminal Defense Attorney was recently asked an interesting question about the strategy and tactics of police interrogations. Do law enforcement officers have any duty to be truthful while questioning suspects?

Here's the question I received:
My twenty year old son was arrested in Tampa Bay, Florida for being in Possession of a Sawed-off Shotgun. After being questioned for a number of hours, police told him that they had a video which showed him with the shotgun. My son admitted he'd had the sawed-off shotgun. Turns out the Police lied to him about the video. There was no video at all. Can my son's statement be thrown out because the Officer's lied to him?

Like Degas haunting self portrait as a young man so this twenty year old Florida man faces a three year sentence for a firearm in Tampa Bay Florida.
Degas, Self Portrait

The police in Florida have no duty to be honest in telling someone suspected of a crime what the actual evidence against them is. In fact, police investigators are trained to deceive suspects as to the quantity and quality of evidence and Florida Courts would not view the dangling of a falsehood while fishing for the truth as police misconduct. 

However, there are other consideration which should be investigated that could help your son. First, since your son was in police custody, then he should have been given his Miranda warnings. Did he ask for a lawyer at any time during questioning? If so, then the questioning should have immediately ended.
Further, his treatment and the conditions he endured while in custody should be looked at. For example, in a federal drug case I once made the argument that Post Miranda statements from sixteen Defendants should be thrown out because of the way the Defendants were mistreated with no access to food, water, nor a toilet.
You're right to be very concerned about the charge of Possession of a Sawed-off Shotgun as under Florida law that charge carries a minimum mandatory term of prison. 

Beyond attacking the interrogation of your son, the firearm should be inspected by a Defense firearm expert. Florida does make some exceptions for sawed-off shotguns under that statute; for example, if it can be established that the firearm was an antique or that the firearm is an exception as classified under the Federal law, which Florida recognizes, then a Defense Motion to Dismiss the charge would be successful.

Here's the relevant Florida Statute:
790.221 Possession of short-barreled rifle, short-barreled shotgun, or machine gun; penalty.
(1) It is unlawful for any person to own or to have in his or her care, custody, possession, or control any short-barreled rifle, short-barreled shotgun, or machine gun which is, or may readily be made, operable; but this section shall not apply to antique firearms.
(2) A person who violates this section commits a felony of the second degree.
(3) Firearms in violation hereof which are lawfully owned and possessed under provisions of federal law are excepted.

Finally, a few years ago I tried a similar case before a jury in Pinellas. The trial was necessary because Pinellas County prosecutors refused to treat my sixteen year old client as the child he was, insisting that he accept a minimum mandatory three year sentence. They did not care that the sentence would have ruined his life. He'd used the shotgun to break into a Doctor's car. During the Jury Trial I argued that since he did not use the firearm as a weapon, but as a tool, he was not guilty of Possession of the Sawed-off Shotgun. The Jury found him not guilty.

Sunday, January 27, 2013


Your favorite Clearwater Criminal Defense Attorney enjoys practicing in Tampa Bay, Florida where the sheer sporting spectacle of legal scandal never fails to amuse. 
It should lead to an internal investigation when a Lawyer initiates a criminal DUI  investigation in Tampa Bay Florida.
Daumier, The Lawyers, 1850
Amidst a brutal high profile defamation trial between famous local radio personalities Bubba the Love Sponge and MJ Schnitt involving among other sundry details testimony of pigs being killed live on air, one of the lawyers representing Schnitt was popped with a DUI, damn bad luck during an important trial or was it something more?

Luck in this case may have been created when the legal team representing the Love Sponge (really, I'm not making this up) initiated the DUI investigation by calling a Tampa DUI Police Sergeant to check for the car the lawyer was driving. The car the lawyer was driving belonged to the lady he was drinking with, who unbeknownst to him was a paralegal from, you guessed it, the Love Sponge's legal team. 
While the Tampa Circuit Judge plans to make a ruling on whether to grant a motion for mistrial in the ongoing defamation case, he must be wondering what stroke of fate led him to be the one chosen to deal with this mess.
Here are some excerpts from press reports as I'm not keen to be sued should I get these facts wrong, then we'll focus on the implications of corruption within Tampa Bay law enforcement when crime investigations are initiated for personal reasons:

Schnitt's team hinted that Campbell's DUI was a setup - that Melissa Personius, a paralegal for the Love Sponge's attorney Stephen Diaco met up with Campbell Wednesday evening, bought him drinks and then asked him to move her car. After Campbell's arrest his Trial Briefcase packed with many confidential documents about case strategy was left in her car.

Tampa Police Sgt. Ray Fernandez, who arrested Campbell, took the stand, testifying he received a call from a member of the Diaco law firm, asking him to check out a specific car. 

Diaco pleaded the Fifth Amendment when asked if his staff called the Tampa Police Department in the last 48 hours. Personius took the Fifth Amendment when asked if Diaco instructed her to meet Campbell that night. 

It's always refreshing when lawyers take the fifth; someday I aspire to do the same. But what should be of even more concern is the evidence that Tampa Police can be led by the nose to achieve an arrest. 

Tampa Police Chief Jane Castor state, "It is unfortunate that the Tampa Police Department has been dragged into this circus. We stand behind our officer. He did what DUI officers do every day, and that is arrest impaired drivers.

Really? Officers often must work on tips. Clearly if a citizen observes reckless driving endangering others a tip could save lives and officers could be remiss in failing to act. 
Yet here there appears to be much more than a mere tip. A lawyer with a possibly illegal hidden agenda had direct access to Tampa's DUI Sergeant. The attorney had enough influence and personal connection to that Sergeant to initiate an immediate investigation of a crime that had not yet occurred. One wonders how many arrests in Tampa Bay are initiated because of personal agendas and vendettas? Tampa Police should be guided by higher standards and an internal affairs misconduct investigation should be initiated especially because of the past failures of law enforcement officers in Tampa Bay.
Why didn't the Sergeant simply say, "If you think that guy is going to drive impaired, make sure he gets a cab," but no, that's never how it happens in Tampa Bay. The ever greater pressure on Tampa Bay law enforcement to make more arrests does not include stopping crime from taking place. 

Thursday, January 24, 2013


Like many trial lawyers your favorite Clearwater Criminal Defense Attorney has seen many witnesses at trial; none more effective than Eye Witnesses. While working as a prosecutor it was always devastating to deliver the final punch with the Eye Witness leaving the Defense shattered. And no wonder Eye Witnesses are so effective in trials because the Eye Witness is seen by the jury as simply a teller of truth.
Manet's Plum Witness would not be a great eye witness in a criminal trial in tampa bay florida with the absinthe in front of her clouding her memory and testimony for identification of a criminal perpetrator.
Manet, A Plum Witness
Yet Eye Witness testimony is among the most unreliable at trial. Many guilty verdicts that were proven with Eye Witness testimony have been unwound by the Innocence Project thru DNA analysis establishing Defendants' innocence. In fact the Innocence Project lists Eye Witness Misidentification as being "the single greatest cause of wrongful conviction playing a role in nearly 75% of convictions overturned trough DNA testing." 

The Misidentification comes from two categories of variables:

1. Estimator variables include simple factors like the lighting when the crime took place or the distance from which a witness sees a Defendant, also the amount of stress during a crime because of force used or the presence of firearms or trauma a witness experiences. 

2. System variables include how law enforcement officers acquire witness memory including lineups and photo packs.

As you can see the 'system variables' should be controlled by the Criminal Court System. New Jury Instructions in states such as Florida caution Jurors to be wary of Eye Witness identifications made during criminal trials. Yet one of the confounding things I often see is that Florida Law Enforcement Officers are not required to record witness statements nor statements made by Defendants. Often their notes of what was said by witnesses and Defendants are proven to be wrong.
How reliable is Eye Witness testimony as studied not only be lawyers but by psychologists? Here's an excerpt from The Problem of Eye Witness Testimony found in The Stanford Study of Legal Studies:

The process of interpretation occurs at the very formation of memory—thus introducing distortion from the beginning. Furthermore, witnesses can distort their own memories without the help of examiners, police officers or lawyers. Rarely do we tell a story or recount events without a purpose...
The act of telling a story adds another layer of distortion, which in turn affects the underlying memory of the event. This is why a fish story, which grows with each retelling, can eventually lead the teller to believe it... it is not necessary for a witness to lie or be coaxed by prosecutorial error to inaccurately state the facts—the mere fault of being human results in distorted memory and inaccurate testimony.

Clearly Eye Witness testimony should be viewed with a healthy skepticism, because the goal of a criminal trial must be to provide the Defendant with the fairest trial possible and maybe along the way, to even find the truth.

Wednesday, January 16, 2013


The Government's escalating battle to stop the abuse of oxycodone now includes baiting bottles in pharmacies with GPS tracking systems. According to press reports the baited bottles will be handed out during pharmacy thefts and robberies in the hope of later tracking down the perpetrators.

Law enforcement is also asking industry researchers to explore the possibility of applying nanotechnology in such a way that individual 'bait' tablets could be tracked by GPS.
GPS Enhanced Pill Bottles

The idea is similar to the red dye explosives banks throw into bags of cash when robbed. The dye makes it that much easier to catch the robbers. Unfortunately it takes weeks for your favorite Clearwater Criminal Defense Attorney to rub off the red dye when making timely withdrawals, but never mind my legal problems.  
Couldn't the banks use GPS as well? Well, they do. 
But they're smart enough not to advertise the fact as it wouldn't deter the robbery only force the robbers to remove the device. 
Clearly, growing technology is taking away more of our privacy rights. Yet folks who rob pharmacies and banks probably don't have much room to complain. But for the rest of us imagine how are privacy rights will be diminished when the industry complies with law enforcement's request to create a nano GPS system. And it's important to know when electronic surveillance with GPS, video or audio is unlawful.

The Government has tried harsh mandatory minimum sentences for drug offenses which have not only failed to curtail addiction and abuse, but have ruined many more lives than the drugs. In Florida law enforcement officers charged with protecting the public have recently abused their public trust by using improper tactics including secret video surveillance, false search warrants and lying while attempting to gain unlawful entry into a dwelling.

Tuesday, January 15, 2013


Your assumptions about the causes of crime may mirror those of your favorite Clearwater Criminal Defense Lawyer, that the fire of crime ignites from an endless variety of personal sparks. Beyond mere greed or need are the many cultural causes of crime such as extended time in violent prison which breeds further crime. 

van gogh's painting with lead may have led to antisocial behavior; if he'd lived in Tampa Bay Florida he might have been arrested for crimes.
Van Gogh, Painting with Lead
Looking further there have been a number of intriguing cases where criminal conduct was directly attributed to physical stresses such as the discovery of a brain tumor in a Texas serial killer whose suicide note asked for the affirming autopsy, that his problem was not self motivated but an uncontrolled impulse. And still other scientific studies point to genetic triggers for a predisposition to commit crime.

All of these studies taken together makes one leery of any study staking a claim to being the great speeding bullet cause of crime. 
So, drum roll, here's the new cause of crime, lead. 
Historians link the Fall of Ancient Rome with the unwitting use of lead in water pipes as well as plates, pots and utensils. Could lead be the missing link from Nero, the cause of crime in America?
A recent article links the vast consumption of lead to the rise of the crime rate in America from 1960 thru 1990. Further, it maps cities such as New Orleans showing that greater crime follows areas of the city with more ingested lead.
It's clear we need to further reduce lead consumption especially in children. Scientific studies definitively establish that lead consumption often results in antisocial behavior increasing crime by as much as 20% and that America is still engulfed in significant inadvertent lead consumption. For example, lead dust at shooting ranges in Tampa, Florida has become a problem for the military. Here are some excellent recommendations on lead renovation, repair and painting to stop hazardous lead dust or chips. 

For those unfortunate Florida folks charged with a crime who have elevated lead counts at higher levels than the norm, you should make certain your Clearwater Criminal Defense Attorney is aware of the recent lead studies to use the information as a mitigating factor at sentencing.

Monday, January 14, 2013


Your favorite Clearwater Criminal Defense Attorney isn't above stirring up a hornet's nest of hell in a certain Judge's hair now and then, as that's called good lawyering. Yet we expect our jurors to not only sit silent for hours listening as lawyer's attack each other, but to remain fair and impartial thru the despair, pain and boredom of jury duty 

Renoir's painting of Monet searching in a book is reminiscent of Tampa Bay jurors who have been punished for making google searches disrupting trials.
Renoir, Monet Searching
That means good jurors are forced to wean themselves for many hours from making their usual addictive google searches fishing for fresh information beyond the dull drabs supplied in the Courtroom. 

An angry Tampa, Florida Judge finally handed down the punishment for a remorseful juror who accepted responsibility for juror misconduct when he almost ruined a pending murder case by googling the Defendant's other charges and telling other potential jurors about the case. 
Certainly the Judge must have weighed some possible punishments for the juror such as these:
Community Service, say picking up trash by the side of the highway? No, there's not enough trash in all of Florida to dissuade others from using the internet during criminal trials.
A term in Jail? If you give him jail he'll demand a trial by jury where there'll be even more googling jurors until every Floridan is either on trial or googling about the trial while a juror and waiting to be arrested; thus sending Florida, the United States and perhaps the entire world into another prolonged recession. No, not even a Florida Judge would willingly do that.

So what's the Judge to do? According to press reports the googling juror touched the Judge's heart by admitting "curiosity got the best of me." Yet without mercy, the Judge sentenced the gossiping Juror to the nightmare every American dreads most:

The punishment, he said, could serve as an example...."It's important that this be brought to the public's attention..."
Instead of jail the Juror "...shall receive a summons for jury duty one week per month for the next three months."
He gets more jury duty! One wonders what questions Lawyers and Judges may have for this particular juror during jury selection and how likely it could be that he'll be picked to serve. 

Friday, January 11, 2013


Your favorite Clearwater Criminal Defense Attorney recently received this question about the elasticity of sentencing guidelines; just how much leeway do federal Judges really have to reduce sentences under the sentencing guidelines or minimum mandatory requirements?
Renoir's Baker Awaiting his Sentencing, shows the fear of what a Judge may do in federal district court in Tampa florida.
Renoir, Baker Awaits Sentence,1877
My husband is facing a federal drug case. The amount of drugs involved carries a long minimum mandatory sentence. 
He's thinking of pleading guilty. If he pleads guilty is there any way that the Judge can sentence my husband to a term that's under the minimum mandatory? 
He's already lost his job and now it looks like he'll lose his freedom.
There are two different hurdles facing your husband. As you're know there's the minimum mandatory jail term triggered by the amount of drugs, but at the same time the facts of the case, prior convictions, aggravating factors and mitigating factors will also bring about a calculation of probable jail time based on the Federal Sentencing Guidelines. The Guidelines indicate that a Federal Judge should sentence a Defendant to whichever term is higher. In other words if the minimum mandatory sentence if ten years but the Sentencing Guidelines call for thirteen years, then the higher term if thirteen years is likely to be imposed.

For a long time many Federal Judges complained that their role in the sentencing process had been reduced to merely crunching numbers. Yet fairly recently the United States Supreme Court has repeatedly told Federal District Judges that the Federal Sentencing Guidelines are advisory, meaning that Federal Judges may impose less time when necessitated by the facts of a case or the personal characteristics of a Defendant. So it's now possible to successfully attack the Federal Guidelines as applied to individuals.

Judges have less ability to go under minimum mandatory sentences. But under the law there are some ways to avoid a minimum mandatory sentence. For example, there is a provision for reducing sentences based on substantial assistance or based on the safety valve provision for Defendants with no prior record who accept responsibility for their crime, which allows the Federal Guidelines to trump the minimum mandatory sentence. 

In minimum mandatory cases not brought in Federal Court but by the State of Florida, it's deplorable that Prosecutors often possess much more discretion than Judges. Clearly, even in Florida cases it's important to understand how Guideline Scoresheets and Guidelines are calculated before resolving a case. Even good people are destroyed by minimum mandatory sentencing including Florida Prosecutors in Tampa Bay and Pinellas County who continue to demand that judges ruin lives needlessly and who have a long history of failing justice, see minimum mandatory sentences corrupt Prosecutors.

Wednesday, January 09, 2013


Although one important goal of the criminal justice system is finality, your favorite Clearwater Criminal Defense Lawyer would argue that the most important goal of a criminal trial is that it be fair. 
A federal judge in the Middle District of Florida in Tampa issued an ex parte order last week directing the Marshall's office to seize the computer of a juror. 

Renoir's famous painting of a couple in the theater box is not unlike two jurors searching for evidence in Tampa Bay, Florida where a federal judge wants to make sure a drug defendant's guilty verdict was fair despite a juror who made google searches during the trial.
Renoir, Jurors Seeking Evidence
The juror apparently told news sources that during a criminal trial for Trafficking in Cocaine of reggae star Buju Banton, she inappropriately looked up information on the internet. The verdict against the rapper was guilty and the never resting Defense is seeking a new trial, with one hopes, a jury without internet connectivity.
Clearly if any internet information was used by members of the jury before or during jury deliberations, then the Defendant may not have received a fair trial. 
One wonders if spreading cellphone technology with ready access to the internet will make fair criminal trials impossible in the future. 

The federal judge recanted his decision on seizing the former juror's computer based on possible juror misconduct after argument from counsel according to press reports:

The Judge changed his mind after a prosecutor questioned whether the order, which was made during a telephone conference between the judge and lawyers in the case, had adequately addressed privacy and due-process issues.
Defense counsel for Banton contends that the jury was swayed by the juror and information she obtained through Web surfing to convict Banton instead of acquitting him.
...In an exclusive interview the Juror allegedly stated that she researched some issues in the case during trial so that she would be ready to deal with them during deliberations. She said: "I would get in the car, just write my notes down so I could remember, and I would come home and do the research," the newspaper reported in October.
It's ironic that federal prosecutors addressed privacy and due process issues to the Judge to solidify their conviction, as they're more apt to trample these bastions of liberty. Yet more ironic perhaps is that the Defense seeks the computer files thru any means necessary. 
Ultimately the Court made a better decision in requiring that the Juror appear before him in a week and to come armed with the computer so both sides can have an opportunity to have experts examine the google searches made during the trial.
Unhappily these confounded Judges are still somewhat unwilling to have folks reading this blog during jury deliberations. From my experience in Federal Trials your Clearwater Criminal Attorney has no doubt that the entire jury panel was repeatedly cautioned by the Judge to make their decision based only on the information provided by the lawyers or the Court during the trial as this insures the certainty that the Defendant receives a fair trial based on the evidence and the applicable federal law.

Monday, January 07, 2013


Your favorite Clearwater Criminal Defense Attorney isn't surprised that one may choose to spend a rebellious youth seeking ever greater risks and ever higher highs. 
But let me give some unsolicited advice. 

Feral Florida Youth commit burglary and grand theft for drugs only to find its ashes of a man and two dogs after snorting.
Monet, Feral Florida Youth, 1886
If you happen to find yourself in another person's home uninvited, say while committing the crime of burglary, it's very unlikely that those fancy gilt urns up on the mantle next to the flowers over the marble fireplace really contain cocaine, heroin or crushed oxycodone. 

Yet three feral youth of Florida made some bad decisions after burglarizing an Ocala home by taking the cremated ashes of the victim's father and two Great Danes, then optimistically mistaking the ashes for drugs and ingesting them. 

A Florida Circuit Judge in Ocala has sentenced the three snorters to eight years of prison, good thing those two dogs were already dead as the Judge might have given an even harsher sentence. 

Press reports noted that:
Detectives investigating the case said the accused men told them they thought the urns contained heroin, cocaine or crushed pills and decided to taste and snort the contents. After the men saw a story published in the newspaper, they realized what they had allegedly snorted were the remains of the victim's woman’s father and her two dogs.

The eight year sentence is on it's face unfair and unconscionable. Deep in the press reports hides the fact that the three youths were just that, only aged 19, 20 and 21. A Clearwater Criminal Defense Lawyer assumes that the sentencing Judge did not grant any Defense Motions for a Reduction of Sentence based on Florida's Youthful Offender Statute due to the nature of the offense, prior unlawful conduct or other pending burglaries and grand thefts. Invoking the Youthful Offender statute would have allowed the Judge to go under the Florida Sentencing Guidelines to give a fair and reasonable sentence.

Wednesday, January 02, 2013


Your favorite Clearwater Criminal Defense Attorney suggests you'll watch your wallet with greater care after reading a recent riveting profile in the New Yorker about America's best pickpocket whose excellent technique is being studied by scientists and the military, because he not only uses slight of hand but rides the weaknesses of human character in a dangerous dance. 
in Florida pickpockets are often charged with grand theft or petty theft depending on the value of what was taken.
The Department of Defense recently endowed a training facility at Yale where the pickpocket will teach and consult for useful applications of his services in espionage pickpocketing, con games and behavioral influence.

Here are some sharp observations from the master thief and pickpocket, Apollo Robbins, as excerpted from the New Yorker profile of his spectacular thefts on how he charms, beguiles, cajoles and undermines his target's resistance. 
“When I shake someone’s hand, I apply the lightest pressure on their wrist with my index and middle fingers and lead them across my body to my left,” he said, showing me. “The cross-body lead is actually a move from salsa dancing. I’m finding out what kind of a partner they’re going to be, and I know that if they follow my lead I can do whatever I want with them.” 
 “If I come at you head-on, like this,” he said, stepping forward, “I’m going to run into that bubble of your personal space very quickly, and that’s going to make you uncomfortable.” He took a step back. “So, what I do is I give you a point of focus, say a coin. Then I break eye contact by looking down, and I pivot around till I’m in your space... under your radar with access to all your pockets....If I lean my face close in to someone’s...it’s like a closeup. All their attention is on my face, and their pockets, especially the ones on their lower body, are out of the frame.  
“It’s stepping outside yourself and seeing through the other person’s eyes, thinking through the other person’s mind, but it’s happening on a subconscious level.” 
Who'd have thought that a theft is like the dancing of a salsa. Apollo Robbins first became famous when he took the badges and Presidential schedule of a Secret Service Presidential Protection Team in Las Vegas. Understandably unamused they did not arrest him, yet were befuddled that their secrets could be so easily breeched.  
More than just the theft there is in pickpocketing the indignity of being singled out as a vulnerable target and fleeced. By the way, have you seen my wallet?
If you've inadvertently 'found' my wallet and now need a solid defense for a theft charge contact as Clearwater Criminal Defense Lawyer