Friday, December 06, 2013


Prisons in the United States are disproportionately filled with people suffering from mental illneess whom the criminal justice system treats as criminals. One exasperated Florida judge named Steve Leifman even declared that he'd unwittingly bcome the gatekeeper of Florida's largest pschiatric facility.

But Miami Judge Leifman is helping solve the problem by creating special mental health courts that will stop treating mental illness as a crime. 

Everyone in the criminal justice system is aware of the problem. Yet few have had the courage to do anything about it. Here's an example from years ago when I was a prosector. An elderly lady took a pair of sunglasses from a pharmacy without paying. After her arrest for theft I was assigned to be her prosector. At her first pretrial her lawyer gave me hundreds of pages of documents with her medical and psychiatric reports detailing her dementia with a firm diagnosis of alzheimers. But this was not enough to set the case aside based on her mental comptency.

The Pinellas State Attorney at the time, James Russell, as moribund and lazy as a poisoned mouse, did what elected officials often do. He passed the buck, yet the judge didn't want to simply dismiss the case either. Ultimately no one in the legal system had the courage to simply do the right thing and dismiss the case, which like a long gray winter dragged on until the lady died. 

It's refreshing to find on the horizon a courageus fair Miami judge who wants to help the twenty percent of Floridians with mental illness who are not in a posistion to help themselves. 

Is there a similar judge in Tampa Bay, Florida willing to stand up with Judge Leifman to make our criminal justice system more effective?

Monday, December 02, 2013


In Florida prosecutors may elect to file charges against a defendant even when the victim does not want to prosecute. This is true because Florida views itself as a victim whenever a crime has been committed. But in a typical criminal case the expectation is that the state of Florida will give great weight to a victim's desire to prosecute or to not prosecute.

Sometimes the weight given to a victim's wishes can be abused by the victim, representatives of the victim or the victim's family when a decision to prosecute is needlessly delayed or retracted. This is a recurring problem in allegations of sexual assault, sexual battery, rape and domestic violence. During the course of the investigation of a defendant the victim will be asked if he or she wants to purse a prosecution, because once an arrest is made and the charges are filed by the state attorney's office the lives of the defendant and victim are forever changed.

In many of these cases there may exist little evidence other than the testimony of the victim. In these cases it's important for prosecutors to take into account the following factors before filing a criminal charge against a defendant:

1. To gauge the willingness of the victim to testify.
2. To verify the honesty of the victim's statements made at the time of the report of the alleged assault. Is the statements consistent within itself? For example, did the victim give correct information about the height, weight and hair of the defendant and if not, why not?
3. To determine if the victim has made any other statements which are inconsistent. 
4. To find if social media or email has information which contradicts the victim's assertions.
5. To compare and contrast any physical evidence such as DNA with any other evidence of unlawful force such as the defendant's skin under the fingernails of the victim.
6. To find any accounts of other witnesses who may have observed the victim's demeanor before or after the alleged assault. Was the victim laughing, crying, yelling, happy or sad?
7. To review the results of any toxicology reports to determine if the victim was impaired. Was the victim under the influence of drugs or alcohol to the extent that the victim could no longer make informed decisions?
8. To establish that the victim has no mercenary nor financial interest in the outcome of the case. For example, in a recent case involving an FSU football player the alleged victim appears to be represented by a personal injury lawyer who police claim placed herself between the police investigation and the victim, which if true is one of the oddest things as a former prosecutor and as a defense lawyer I've ever observed. 

Effective law enforcement officers and prosecutors understand that the emotional and physical trauma suffered by many victims will not be healed with a prosecution. Further, they understand that filing a case if the victim is unreliable will only result in a not guilty verdict and ruined lives for not only the defendant but also for the victim.