Monday, October 28, 2013


Could an unintended consequence of Attorney General Holder's memorandum for more lenient marijuana enforcement be stricter enforcement of federal steroid laws by federal and state law enforcement? 

Since as many as six million Americans use steroids, pushing for more arrests of steroid users could be catastrophic for unsuspecting users many of whom have no idea that the Government classifies steroids with hard drugs such as heroin, cocaine and LSD with equivalent harsh federal drug trafficking sentencing for relatively small quantities.

Not only do Federal Drug Enforcement Agents appear to be focusing on making more arrests for steroid users, but in the Middle District of Florida located in Tampa Bay numerous arrests are being made by local and state police officers which are then being pursued in federal court rather than in state court. Pushing the cases into federal court garners the risk of much more prison time if a Defendant is convicted. With steroids the actual weight of the drug is not as important as the number of 'units' one is accused of possessing, this can make for unfair sentencing results when the drugs are diluted. Therefore, it's important to take urgent action if one is arrested for steroid possession or for steroid trafficking.

Reducing the damage of a federal arrest may be alleviated if the Government agrees to a timely Waiver of Indictment which allows a federal case to be filed with an information rather than by a grand jury indictment. When the Government files an information limiting the scope of the Defendant's knowledge or the sheer amount of the steroids the Defendant may have sold or possessed, this can be useful in avoiding minimum mandatory sentences under the trafficking laws especially in cases where steroids have been found incident to a search warrant, but law enforcement has evidence of long term use, buys or sales of steroids. 

Often an early agreement on the filing of an information rather than an indictment from a grand jury has an addition benefit in that the Government also binds itself to an additional agreement that Government won't object to allow the Defendant to be free on a bond. This is useful in achieving a successful Federal bond, bail and detention strategy. After every Federal arrest a Federal Magistrate determines whether a Defendant should be free on bond. Factors the Judge looks to include the Defendant's ties to the community and whether the Defendant is a threat to the community. Unfortunately under federal law when a grand jury indicts a person for trafficking in drugs, the presumption is that the Defendant is a threat to the community and therefore must remain incarcerated until the case is resolved.

So there's much more likelihood that the Federal Magistrate will agree to a bond when an agreement has reached with prosecutors that allows for a Waiver of Indictment and the avoidance of a trafficking charge. The bond gives security to the court that the Defendant can remain free and working to support his family while the case moves forward. In some cases the Magistrate may even allow a signature bond, which is one without direct security other than the signature of the Defendant promising to pay in the future whatever amount the Federal Magistrate believes will prompt the Defendant to attend each court hearing.

Wednesday, October 23, 2013


When the Pinellas County Sheriff recently hired a company to take over the medical needs of the Clearwater jail, he chose the same company that runs the medical staff of the Hillsborough County Jail. This might seem reasonable but for the fact that under that company's medical care an inmate suffering a stroke was misdiagnosed as drunk and died an excruciating death. One thing is certain, it's not about the quality of medical care to be provided, it's about saving money.

Clearly the health, safety and rehabilitation of inmates in the Florida prison system is not the first priority with local decision makers. In fact Tampa Bay jails have a notorious reputation for not providing and protecting for prisoners

Anyone arrested has the right to adequate care and even those convicted must be treated in such a way that the punishment is not cruel. The Pinellas Jail often houses federal prisoners. It's one way that the over-crowded jail makes money. Other ways include selling music, clothes, phone time and food to inmates at extreme markups. 

As a Tampa Bay federal defense attorney I've heard many complaints from federal clients about the terrible food at the jail, which often needs to be supplemented with food bought at extraordinary high prices in the prison canteen. The failure to provide proper food, soap, shampoo and even underwear to inmates unless they buy the items makes life in the jail more difficult not only for those unfortunate inmates who can't afford these 'luxuries' but for the prison guards who find themselves degraded when their livelihoods subject others to inhumane conditions. 

Yet it's one thing to be cheap, much worse to risk lives by providing improper medical care in Florida jails. Press reports note that the Tampa family of the man who died of the misdiagnosed stroke received a significant financial settlement of as much as $700,000. Wouldn't it have been far wiser, cheaper and more effective in the long term, not to mention more humane, to have simply spent that money toward making our prisons safe, clean and healthy?

Thursday, October 17, 2013


As Americans we often may lay claim to the notion that we want fairness in our criminal justice system. In truth what we want is consistent applications of our laws when applied to others but something less consistent when applied to us or the people we care about. Only when the ugly head of the law bites us do we fully understand that in the application of justice we really require some wiggle room. 

For Tampa Bay criminal defense lawyers justice should be fair except when a client faces a fair result which will also ruin his life, then what? Here are five effective arguments to leverage a judge's discretion to make sentencing findings running against the grain of harsh laws dictating excessive punishment while finding the best possible sentence.

First, look to the law's intended consequences to show that they are irrational when applied broadly. Even the best written laws should be narrowly construed so as not to ensnare those who may never have intended to do wrong at least in the broadest definition of the crime. 

Second, show that the law has unintended consequences that could result in unduly harsh sentencing results. Establish that the facts and circumstances of a case are unique outliers in the law's true intent.

Third, follow up the argument on the law's intended and unintended consequences by finding and presenting evidence of the legislative history of the law. In Florida the legislative history often includes information from committee hearings, debates, votes and amendments made during the legislative process. This evidence can establish that the law maker's intent was not to target the actions under consideration with significant punishment.

Fourth, establish that the harsh punishment for a broken law was not readily foreseeable by the average citizen. This is especially easy when the sentencing judge on the record expresses some surprise when told by the prosecutor where the Florida guideline scoresheet range of prison is for a defendant.

When Defendants were first being sentenced to the initial set of harsh minimum mandatory sentences for drugs some twenty years ago, the best judges were reluctant to sentence people to that much time. They looked for every possible avenue to avoid the law. As a prosecutor at the time I even observed a judge grant a new trial to force prosecutors and defense lawyers to come up with a non-minimum mandatory sentence. 

But as the sentences became more common habit displaced sympathy. With every additional minimum mandatory sentence issued, it became that much more difficult for judges to ignore the heft of the law for others in a misplaced notion that simple fairness dictated heartless sentences for everyone. No, simple fairness means that every judge best honors the law by finding the least possible punishment, despite sentencing guidelines, that provides deterrence and protects the public based on the facts of each case with the unique personal qualities of every defendant. 

And that leads to the the fifth argument which is to appeal to the sentencing judge's sense of wanting to do what is right, which is the most effective argument of all.

Thursday, October 10, 2013


A number of DUI's will be dismissed in Hillsborough County, Florida due to fallout from the former head of the Tampa Police Department DUI division who was fired for his involvement in a notorious Honey Trap that resulted in a lawyer's arrest. Every pending case involving the former DUI division head where he was listed by the State Attorney's Office as a possible trial witness will be screened for possible dismissal, while as many as ten DUI cases, some with blood alcohol level evidence of over double the legal limit have already been dismissed. But just looking at pending cases is not nearly enough, even cases in which the Defendant has plead guilty to DUI or lesser charges should be re-examined with Defendants given an opportunity to reopen their cases.
Tampa Police Department, FL, has this badge been dishonored by an officer destroying evidence?
Badge of Integrity?

Federal and state investigators are still looking at the actions of everyone involved in the drama of this scandal to determine what charges, if any, should be filed. Yet you, my reader, sitting there drinking your wine by the fireplace or possibly asleep within the relative safety of your home during the original scandal, you need not fear these allegations because they are unlikely to cause the Feds to come knocking at your door, nor even mine, one hopes.

A preliminary investigation by the Pinellas County State Attorney's Office determined that the lawyer who was arrested for a DUI incident to a Honey Trap Set-Up scandal would not be charged. That investigation also revealed that the activities of the Tampa Police Department brought the DUI unit's integrity into question with the likelihood of  destruction of evidence to cover up the role of at least one Hillsborough officer involved in the scandal.

The Pinellas prosecutors should be commended for making the courageous choice of dropping charges against the lawyer, but the prosecutors in Tampa have not gone far enough in dismissing other cases tainted by this scandal.

The integrity of the Florida justice system demands that every case, even those in which the Defendant has already plead guilty, involving the former Tampa Police DUI division head should be re-examined. On motion of the State Attorney's Office in Hillsborough County, Defendants should be allowed to withdraw Guilty pleas based on the failure of the Tampa Police Department to insure that DUI cases were handled in a fair and impartial manner. 

Monday, October 07, 2013


Criminal lawyers are often asked a simple question that has a complex answer: what are the best ways to have a criminal case dismissed? 

Here are the best five ways to achieve a dismissal of criminal charges in Florida:

The Judge's Gavel for dismissal of criminal charges in Florida criminal defense cases in Tampa Bay.

1. Persuading prosecutors not to file charges.
2. Persuading the Judge that the charges are insufficient legally.
3  Persuading the Judge that essential evidence should be suppressed.
4. Completing the Pretrial Intervention Program or successfully completing specific crime programs such as those run for Drug Intervention or Domestic Violence.
5. Persuading a Jury in trial that the Defendant is Not Guilty.

In Tampa Bay, Florida effective defense lawyers will first do everything possible to persuade prosecutors not to file a criminal case even when there's been an arrest. Since prosecutors will later have to either try the case or persuade the Defendant to plead guilty, it's vitally important for the defense to initiate an effective early initial conversation with prosecutors and their supervisors to secure a decision not to file the case by establishing problems with evidence, witnesses or legal reasoning.

Second, a Motion to Dismiss the case should be granted by the Judge in a case where it can be established that the undisputed facts do not constitute a crime. If the prosecutor believes that the facts support the filed charge, a traverse can be filed which will block the Motion to Dismiss. The Judge may set a hearing to determine what the essential facts actual are to ascertain whether the facts should lead to the case being dismissed. It's also possible for cases to be dismissed for other procedural reasons such as far too much time between the time of indictment and arrest.

Third, a Motion to Suppress evidence may be filed to literally throw out or suppress unlawfully obtained or seized evidence which may result in the dismissal of the charges if the prosecution finds it can no longer successfully move forward with the case. For example, if a search was conducted without permission and without probable cause the Judge may suppress evidence. Though Motions to Suppress are rarely granted, it is often devastating to the prosecution when they are. Further, the mere filing of the Motion may bring benefits by prompting further factual discovery and divergent witness testimony.

Fourth, a defendant with no criminal record charged with a nonviolent crime may under certain conditions to enter a Pretrial Intervention Program upon the completion of which the case will be dismissed. The program entails a period of something similar to probation for six months to a year depending on whether the charge was a misdemeanor or felony. Although in Florida this program is under the supervision of the States Attorney's Office, the prosecutors will ask the presiding Judge to dismiss criminal charges against those who successfully complete the program. There are also similar special programs for select crimes such as drug crimes or domestic battery charges as well.

Finally, to end a criminal case with success when all other options are unavailable, a Clearwater criminal defense attorney must be capable of establishing to a jury that no crime was committed by being willing to go to trial.