Sunday, March 24, 2013


Friends and family members of loved ones who have been arrested in Tampa Bay, Florida often seek help from Clearwater criminal defense attorneys. Yet how can family members be sure that a lawyer knows how to find the best possible solution in their criminal case? How do you define success in criminal law? 

A Tampa Bay Judge must have the discretion to give a fair sentence over the objection of prosecutors.
Judging Discretion
Success depends on more than the mere facts and circumstances of each case. Success requires that an effective advocate understand the arresting officers, the prosecutors and the judge; how they think and how they're apt to react to a vigorous defense. Knowledge of how the criminal justice system in Tampa Bay, Florida works from arrest, investigation by the the prosecutor, arraignment, pretrial and if necessary trial comes from experience, while experience comes from having handled thousands of criminal cases over a lifetime dedicated to excellent criminal law outcomes. 

Over the past three decades in criminal law the balance of power shifted from impartial Judges to political prosecutors with the introduction of brutal sentencing guidelines, minimum mandatory sentencing, harsh drug sentences and pretrial intervention programs. 

Yet over the last few years the U.S. Supreme Court has made it clear that Judges, not prosecutors must have more discretion in sentencing. In fact the Supreme Court has held that the Federal Sentencing Guidelines are only advisory; therefore when justice requires it, Judges must be willing to give sentences under the prevailing Sentencing Guidelines. Effective advocates must have a keen understanding of how to persuade Judges to use their discretion, while leveraging this possibility with prosecutors to receive the best pretrial offers in change of plea negotiations. 
Finding the best possible outcome must always be the over-riding goal of every advocate in criminal cases. 
Finding the best solution after an arrest requires that Clearwater criminal defense lawyers understand how to use the leverage of Judge's sentencing discretion to guide their clients to safety. 

Tuesday, March 19, 2013


Your favorite Clearwater Criminal Defense Attorney was surprised by the results of new study establishing that overweight women are less likely to receive a fair trial than others. Thin male jurors were the most likely to be biased against overweight women, while women and overweight men were least biased.

The study from Yale University found that bias to obese women was shown by male jurors against overweight women, especially when the men were thin as detailed in this excerpt from the full weight bias study:

Male participants judged the obese female defendant as significantly guiltier than the lean female defendant.
Degas' ballerinas are beautiful but not thin, would male jurors in Tampa Bay be biased because the ballerina's are overweight?
Degas, Ballerina,1875
Additionally, the lean male participants believed the obese female defendant was more aware of having criminal intent as compared with the lean female defendant. They also viewed her as more likely commit a crime in the future as compared with the lean female defendant. Differences between ratings of the obese female defendant and the lean female defendant were only observed among male participants; female respondents judged the two female defendants equally regardless of body weight.

Until this study I believed that the most significant threat to fair trials in America was biased information spread thru cellphone technology, but latent bias within the criminal justice system based on a Defendant's personal characteristics undermines the very notion that justice can ever be fair. 
If male jurors are biased isn't it likely that male judges may also be biased in sentencing, that male probation officers may be more likely to violate and male prosecutors more likely to ask for harsher sentences when dealing with overweight female defendants? Are  men more judgmental of heavy weight women because they view being overweight as a sign of weakness and lack of control? Do these men believe that somehow women have some duty to make themselves appealing to them?

Clearly Tampa Bay criminal defense lawyers must make certain that everyone involved in the criminal justice system be unbiased and fair by probing for potential bias expressed verbally or nonverbally not only while picking potential jurors during voir dire but through the entire process. 

Sunday, March 17, 2013


With spring breakers in town it might come as no surprise that a  Clearwater criminal defense lawyer was recently asked about the penalties for possession of a small amount of marijuana in Florida. Drug laws in Florida are surprisingly harsher than in many other states, which unfortunately can ruin much more than just a Tampa Bay, Florida vacation for those who come for sunshine, adventure and fun.

A glass of absinthe was once illegal just as marijuana is now in Tampa Bay, Florida where harsh drug penalties should be avoided.
Marijuana or Absinthe? 
In Florida if an officer pulls over a car for a traffic infraction such as speeding, the officer must have permission to search the car unless he has a search warrant. But if nosey officers smell marijuana, then they are allowed to search a vehicle or even your home for drugs. Which doesn't quite explain how officers smelled a strong odor of marijuana in one of my pending cases, but somehow in searching the car found no pot, but pills and methamphetamine. 
The explanation the officers used in the police report was that surely vast amounts of marijuana must have been in the car recently. Officers who lie under oath about smelling marijuana should be fired from Tampa Bay police departments then investigated for perjury.
Here are details of punishment for marijuana possession in Florida:
Possession of 20 grams or less is a misdemeanor punishable by a maximum sentence of a year imprisonment with maximum fine of $1,000. 
Possession of more than 20 grams is a felony punishable with a maximum sentence of 5 years imprisonment and a maximum fine of $5,000.
On top of this a first time marijuana possession in Florida also leads to a two year driver's license revocation even if the incident did not involve use of a vehicle, which is oddly more than the Florida punishment for a first time DUI of a one year Driver's License suspension with the likelihood of be given a hardship license. 
Florida has very harsh penalties for possession or sale of enough marijuana to trigger trafficking in marijuana with minimum mandatory sentences as can viewed in Florida's Drug Statutes.
If you or someone you care about has been arrested for sale or possession of drugs such as marijuana in Tampa Bay, Florida you need an effective Clearwater drug defense attorney who will find the best solutions for you.

Wednesday, March 13, 2013


Too many Florida vacations end with an arrest warrant in Tampa Bay, Florida.
An Arresting Florida Vacation
Clearwater Criminal Defense Attorneys are often asked about how to take care of an arrest warrant in Tampa Bay, Florida. If you know there is an outstanding arrest warrant in your name, then you need to take care of it as soon as possible or you could be arrested at anytime under the warrant. 

First, what is an arrest warrant? An arrest warrant is a legal document signed by a judge establishing probable cause that a crime has been committed with details of the person who committed the crime granting law enforcement officers the right to  make an arrest of that person. 
An arrest warrant allows officers who have no knowledge of a case to arrest the suspect. This means that someone stopped for a mere traffic infraction could be arrested on an outstanding warrant.

Just as Florida honors other state's arrest warrants so other states will honor Florida's arrest warrants even if the Defendant has not actually committed a criminal act. If an arrest is made in another state then that State will place a hold on the Defendant in jail while Florida makes a decision on whether to extradite the Defendant to Florida to face criminal prosecution. 

Arrest warrants often are issued without direct notice to a Defendant so that learning of an outstanding warrant can come as a surprise to someone years after the alleged misconduct. In Florida tourists often find themselves the target of arrest warrants years after their Florida vacations end. The time lag makes mounting an effective defense of an older criminal case that much more difficult.

Once an arrest warrant has been issued in Florida, it will be listed on the FDLE web page wanted person search, in Tampa it will be listed with the Hillsborough SheriffWhat should you do if you or a member of your family finds that there's an active arrest warrant in Florida? 
It may be possible to turn yourself in on the warrant. To do this you'll need to have knowledge of the amount of the bond or the likelihood of being released on your own recognizance. If you turn yourself in at the Jail you'll either need the full amount of the bond or a bail bondsman. 
If you turn yourself into the Court, you'll need to make sure the prosecutor and the Judge have your file at the hearing or you'll wait in jail until the file is found usually at least a week or two.
The fact that you have taken action to take care of the warrant is helpful. Other factors which a Judge may look at in determining an appropriate bond for someone who has turned himself in on a warrant would be the severity of the alleged offense, whether the alleged offense was violent and flight risk, though by turning yourself in to face criminal prosecution you are an unlikely flight risk.
If you find that police in Tampa Bay, Florida have an arrest warrant against you or someone you care for, you'll need an effective criminal defense lawyer in Clearwater to find the best possible outcome.

Sunday, March 10, 2013


An anonymous caller, his deep voice cloaked in mystery, recently asked a Clearwater criminal defense attorney about valid defenses to homicide. Cue stark film noir music as we glimpse in dread the possible motives for that caller wanting to know about murder done in the heat of passion. 
Do the Florida criminal Courts allow this long held common law defense in murder casesIn Florida a Defendant is allowed to give evidence to a jury that a crime was committed in "the heat of passion."  
However, using this defense often has the immediate apparent drawback of requiring the Defendant to admit the underlying act especially when it is employed as a partial defense to negate premeditation which is required for first degree Murder charges in Tampa Bay, Florida. 

David's painting Death of Marat show the aftermath of a murder likely done with premeditation rather than justifiable homicide that would make it excusable under Florida law in Tampa Bay, Florida.
David, Death of Marat, 1793
Here is the Florida Excusable Homicide Defense statute:
782.03Homicide is excusable when committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution, and without any unlawful intent, or by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, without any dangerous weapon being used and not done in a cruel or unusual manner.
But Florida Courts have also recognized that the Defense can be broadly used as the following quotes from a case from 1912 which were used in a recent case from 2002:
A sudden transport of passion, caused by adequate provocation, if it suspends the exercise of judgment, and dominates volition, so as to exclude premeditation and a previously formed design, may not excuse or justify a homicide, but it may be sufficient to reduce a homicide below murder in the first degree, although the passion does not entirely dethrone the actor’s reason....In a prosecution for murder in the first degree for the unlawful killing of a human being from a premeditated design to effect the death of the person killed, or any human being, the defendant under a plea of not guilty may introduce any relevant and proper evidence tending to show a lack of premeditated design in the admitted killing so as to reduce the offense charged to a lower degree of homicide.
Many of these cases involve family members. In one case a fourteen year old girl scout was accused of killing her mother when asked by her defense attorney of she was mentally ill at the time of the stabbing according to news accounts she said, "I stabbed her because I was mad."
In Florida more than merely being mad would be necessary for effective use of the defense because Florida law requires sudden and sufficient provocation and defines premeditation for murder as the following which is from a Federal Jury instruction that used Florida law:
The law does not fix the exact period of time that must pass between the formation of the premeditated intent to kill and the killing. The period of time must be long enough to allow reflection by the defendant. The premeditated intent to kill must be formed before the killing.
Not much time for reflection is required under the Florida law, but there must be at least some instant of time when a decision to kill is made. If you or a loved one face a murder charge a Criminal Defense Lawyer in Clearwater will find the best possible results for you by looking at premeditation as well as a justifiable homicide defense.

Friday, March 08, 2013


Your Clearwater Criminal Attorney is often asked by clients to perform a miracle mind reading before the frowning Judge pronounces  sentence. 
Until the age of four, just like you and everyone else, I could read minds with ease, but society found it culturally intolerable and one morning that comforting bliss of knowing what others thought simply vanished.
It may be reassuring to know that anyone can read the minds of Judges especially before sentencing and you don't need to pass a Bar Exam nor go to law school to do it.

Lippi's painting of Saint Mamas in prison with Lions reminds us that Judges in Tampa Bay, Florida should try to avoid sentencing Defendants to jail by giving house arrest or probation.
Lippi, Saint Mamas In Prison with Lions, 1455
So if you or someone you love is about to be sentenced what is the Judge going to do? In Tampa Bay, Florida the Judge first looks to Florida sentencing guidelines and scoresheets, which will direct him toward a guideline range. 
To go under the guideline range your legal advocate must find articulable language within Florida law allowing him to do so.

Here are some of the best options for Defendants other than prison which may be available. When the law allows some discretion, a Judge may grant probation if the Defendant has no violent crime history nor is a threat to do further crime. In probation a Defendant will be closely monitored but will still have the freedom to maintain his job and social life. If a Judge finds that someone is apt to do further crime, for example in a drug case where there may be an addiction, then intensive probation may be ordered with random drug tests as a condition.

If probation is not an option, a Judge may grant house arrest, also known in Florida as Community Control if the Defendant would otherwise be imprisoned but can provide the Court with assurance that his home will be a prison with very limited social interaction.
The FDLE has an excellent article, Alternatives To Standard Methods of Incarceration which most Judges probably know by heart; here is an excerpt of the requirements for Community Control in Florida:

Community controlees are: (1) confined under "house arrest" to their residences except during regular employment, public service work, or participation in self-improvement programs approved by the community control officer; (2) required to do public service work for nonprofit and governmental agencies to make reparation to society; (3) required to pay monthly fees to the State to offset costs; (4) required to complete daily logs to account for their activities and time; (5) required to maintain employment to support themselves and their families; (6) ordered to submit to urinalysis and/or breathalyzer tests at any time; (7) must participate in self- improvement courses to improve their chances of rehabilitation.

Years ago while I was a prosecutor the inside joke whenever someone received house arrest was that it was 'delayed reporting to jail.' Like many jokes there's some truth there, because most people find it very difficult not to violate the onerous conditions which attach to house arrest. To successfully complete the terms of house arrest in Tampa Bay, Florida, you must think of it as being jail, but at least the benefit of being in jail at home.
A step closer to prison, but one with at least some freedom is work release, which may be an option for sentencing if the Judge is convinced that a Defendant needs a stepping stone of incarceration in a minimally controlled jail environment at night with limited freedom only to work during the day.
A creative and effective Clearwater Criminal Defense Lawyer will do his best before sentencing to persuade your frowning Judge to give his Clients the best possible results and maybe even crack a smile.

Wednesday, March 06, 2013


Your favorite Clearwater Criminal Defense Attorney often tries to persuade prosecutors to allow Defendants with addictions into Florida Drug Court. The Drug Court is run in a manner similar to the Pretrial Intervention Program in that prosecutors determine who gets in, though once a Defendant is safely in the program, a Judge has much more leeway to prevent a life destroying drug sentence. 
Van Gogh's self portrait establishes his addiction. If he'd been arrested for drugs would he go to Tampa Bay's Drug Court?
A Van Gogh Addiction
It's clear those addicted to drugs benefit more from drug treatment than punishment in Tampa Bay. Drug Court allows Defendants to demonstrate over time to a Judge that their addictions will no longer lead them to break the law.

Yet the power of addiction should never be forgotten. Here is a haunting article from the British Spectator by a heroin addict describing the overwhelming desire to go back to the drug and the need for constant vigilance to stay clean:

I cannot accurately convey to you the efficiency of heroin in neutralising pain. It transforms a tight white fist into a gentle brown wave, and from my first inhalation 15 years ago it fumigated my private hell. A bathroom floor in Hackney embraced me like a womb, and now whenever I am dislodged from comfort my focus falls there.
It is ten years since I used drugs or drank alcohol and my life has immeasurably improved. I have a job, a house, a cat, good friendships and generally a bright outlook.
But the price of this is constant vigilance, because the disease of addiction is not rational....
I looked to drugs and booze to fill up a hole in me. Unchecked, the call of the wild is too strong. I still survey streets for signs of the subterranean escapes that used to provide my sanctuary. I still eye the shuffling subclass of junkies and dealers, invisibly gliding between doorways through the gutters. I see the abundantly wealthy with destitution in their stare. I have a friend so beautiful, so haunted by talent that you can barely look away from her, whose smile is such a treasure that I have often squandered my sanity for a moment in its glow. Her story is so galling that no one would condemn her for her dependency on illegal anaesthesia, but now, even though her life is trying to turn around despite her, even though she has genuine opportunities for a new start, the gutter will not release its prey. The gutter is within.

 The last somber part about the talented addict with the treasured smile reminds me of a federal client I represented. The tattooed tear on her left eye fed some deep hidden sorrow, yet she never failed to smile. 
Despite being a mere mule for heroin she faced harsh Federal Drug sentencing. 

A Department of Justice Report on the Feasibility of Federal Drug Courts found many advantages to Federal drug courts noting that:

Drug court programs are a potentially effective means of addressing substance abuse by low-level, nonviolent offenders, and thereby reducing recidivism.

Yet it concluded that Federal Drug Court would be too cumbersome for the DOC to administer, so Federal Judges in progressive districts did it themselves. It's not surprising that progressive states like Oregon or Massachusetts created Federal Drug Courts, but so did South Carolina. 
Why not Florida? Why not now? Florida Federal Judges should create alternatives to harsh punishment for drug Defendants by providing treatment rather than punishment thru Florida Federal Drug Courts, giving Tampa Bay Defense Lawyers the opportunity of helping clients receive the best possible outcome in their drug cases.