Thursday, June 26, 2014


Will the Supreme Court's recent cell phone search decision really protect cell phone users from improper police searches? The good news is that the Supreme Court threw out the red hearing of officer safety which law enforcement often use as an excuse in warrantless searches. 

In the vast majority of cases a cell phone can not jeopardize officer safety. Yet cowardly courts would buy into the facetious arguments of prosecutors. Chief Justice Roberts noted the distinction between checking a cell phone to be certain there's not a dangerous razor blade hidden within as opposed to roaming thru the contents of a phone to randomly find unlawful acts. 

Justice Roberts not only protected his cell phone from improper police searches but protect ever cell phone in Tampa Bay, Florida and the United States from government intrusion.
Justice Roberts' cell phone is safe
Further, Roberts noted that the potential for destroying incriminating evidence by remote wiping of the phone was unlikely and something that the officers could stop by simply taking out the phone battery or by slipping the phone in an aluminum case. For too many years judges have given law enforcement officers the benefit of the doubt in new technology even when logic, if not common sense, was strained.

Although the decision requires a search warrant to search the phone of a defendant for cell phone evidence Robert's left some leeway in a "now or never" situation and even then a worst case scenario would merely be that the evidence might not be useable to gain a conviction at trial. Roberts further noted that the cell phone of today are much more than phones with the capacity to show much more of a person's life, frame of mind, political standing and common interests.

In Florida the law has been settled for some time and at least one Tampa Bay, Florida judge had the courage to no longer allow officers to search based on a lie under oath. Last year the Florida Supreme Court made a similar decision to restrict warrantless cell phone searches when it threw out evidence gleaned from a cell phone in a robbery case. It's good that the United States Supreme Court has now settled the issue of personal privacy rights in favor of citizens as a decision for law enforcement would have reduced the privacy of every American.

Friday, June 20, 2014


Despite the Department of Justice's new 'open discovery rules' and 'ethics re Brady seminars' many federal prosecutors continue to give inadequate discovery in violation of the prevailing Brady rules. In an attempt to address the 'epidemic of Brady violations' a new bill proposed in Congress by the Center for Prosecutorial Integrity would add muscle to the Brady rules by "...requiring prosecutors to implement an Open-File policy" for the following evidence:

In the future Perry Mason will be given timely discovery of the federal prosecutor's entire file.
Prosecutor, give Mason the damn discovery!
1. All witness statements would be subject to discovery.
2. All forensic test results would be made available to the defense.
3. All other evidence gathered by the prosecution that exists within the case file of the prosecutor.

It's clear that Brady violations are the leading type of prosecutorial misconduct perpetrated by the Government while prosecuting federal criminal cases.

Clearly prosecutors have an obligation to do their best to seek justice rather than merely to seek convictions yet too often prosecutors have tunnel vision that rejects evidence of innocence. Yet too often prosecutors view any evidence inconsistent with guilt as unreliable. But this is not a game. This is the lives, reputations and future of those who face the entire power of the federal government. Shouldn't they have access to all of the evidence, not just the evidence which prosecutors say is Brady material? As long as prosecutors decide which evidence is Brady material, there'll be incentive for prosecutors to obscure the actual value of evidence for the defense.  

For fair and just outcomes in federal criminal cases in the Middle District of Florida in Tampa and thru out the United States it's essential that all evidence must be given to defense lawyers. Why would prosecutors want anything less if they are interested in providing justice instead of mere convictions? 

The only way to insure that all evidence is made available to the defense is to have a complete Open-file system as the proposed bill would mandate. Then everything within the prosecutor's possession goes straight to the defense. Then let an American jury find a just verdict having seen all the evidence the lawyers provide. 

Thursday, June 19, 2014


One federal judge who recently died was still going strong and even trying cases at 104 years of age. I'm not so certain I'd have enjoyed being a defendant in his courtroom, but as an attorney it'd have been beneficial learning from the judge's wealth of experience and knowledge. 

In federal courts in Florida the judges are appointed for life but should be subject to mental tests because the judges can not evaluate themselves effectively and defendants have the right to have a mentally competent judge presiding over their cases.
Only time will tell.
Would the broad sweep of time have given the judge special insights into the failure and success of federal law with a 'this too will pass' mindset of not letting the details be too troublesome? Or would he have been a nuts and bolts man looking over his shoulder to the federal court of appeals afraid  any slight error might result in being over turned? 

Yet for all of any judge's value to any particular court, within the American system of government only federal judges are appointed for life. Life can be a very long pleasant span of time despite an occasional Cuban cigar, the smoking of which at least in the Middle District of Florida in Tampa is a requirement for appointment.

So how long is life? Over many generations lifespans have expanded rapidly. In Elizabethan times Shakespeare died a fairly old man at age 52.  By the time of the constitutional convention in America the average life expectancy of an American was only 35 years; by the year 1900 the life expectancy for an American had gone up to 47 years, still quite young compared to the life expectancy of Americans by the year 2002 which was 77 years of age. 

But it's more than age, it's really a question of whether the judge still has the perspective, knowledge, talent, acumen and lets face it, the mental sharpness to be a federal judge. Sadly if the judge is losing his marbles, he's the least able to recognize it. The New Yorker recently had a brilliant article from a sufferer of parkinson's who tries to evaluate his mental decline. Though doctors give him tests that indisputably show decline, his internal evaluation of his mental capacity is more benign. 

Perhaps it's finally time to reconsider the constitutional protection afforded federal judges with life time appointments? Even a twenty year appointment would have a beginning and an end. The greatest benefit of a life appointment is that there is no end in sight, making it less likely that a federal judges would bow to political or popular favor in the way an elected state judge might.

If the term for a federal judge remains life, then federal judges should not be allowed to evaluate themselves as being mentally and physically fit to serve after a reasonable age. Is the judge mentally competent? There needs to be a system in place that forces federal judges to accept the evaluation of trained professionals who determine whether the judges are fit and this should include every federal judge even those on the Supreme Court.

Wednesday, June 18, 2014


Millions of lives have been ruined by unforgiving federal and state minimum mandatory sentences that have taken discretion away from judges. Minimum mandatory sentences created an imbalance of power between judges and prosecutors in which prosecutors grew more powerful than judges because it was the prosecutors who determined how to file crimes in such a way that mandatory minimum sentences were triggered. 

By threatening to artfully charge crimes in which the judge would have limited discretion, prosecutors routinely force defendants to plead guilty or risk going to trial and possibly losing without hope of a reasonable sentence. Often prosecutors will have no qualms about filing additional criminal counts even when the additional charges are unmerited by the facts and circumstances of the case. This gives prosecutors a unique and powerful strategic advantage in negotiations toward a plea bargain that may be difficult to overcome even when a defendant clearly should not be charged with a crime that triggers a mandatory minimum sentence. 

In federal drug trafficking cases for cocaine, methamphetamine, hydrocodone or marijuana defense counsel looking for the best sentencing outcomes must avoid harsh mandatory minimums, which is often a difficult task due to the strict federal sentencing guidelines. It's always important for defense counsel to look for Federal or Florida laws that may undercut the application of the mandatory minimum in drug or aggravated battery cases. In Florida the youthful offender act may allow a judge to sentence far under the threshold mandatory minimum sentence that would ordinarily apply.

The best reason to abolish mandatory minimum sentences is that the laws thwart the goals of fairness, justice and equality before the law, since some people will be charged with the mandatory minimum while others aren't for the same set of facts. When facing a possible minimum mandatory sentence every defendant must make the stark choice of pleading to one crime or going to trial on a far riskier crime. 

One might argue that the mandatory minimum sentences could be made fairer by taking this discretion away from prosecutors. Although it might at first seem much better to have a fair-minded judge not a career prosecutor making this important decision, in time many judges would also abuse this power just as prosecutors have done. Too often judges, just like prosecutors, have been known to twist arms to force a change of plea. Further, traditionally it is prosecutors who determine the appropriate charge that they believe they can prove at trial, because it is the prosecutors who will be stuck trying the case if it's not filed in a reasonable way.

No, the problem is not who decides which cases should trigger a mandatory minimum sentence; the problem is the mandatory minimum sentences themselves. The very application of such strict sentencing is destructive not only to those unfortunately imprisoned but also corrupts those who enforce and prosecute the laws. This is especially true in nonviolent criminal cases such as drug cases where mandatory minimum sentences are routinely abused by prosecutors to force defendants to serve long sentences instead of receiving help for their drug addictions. 

In Florida criminal laws now make mandatory minimums required for some forms of aggravated assault and other crimes if a firearm was allegedly used though the victim was never harmed. Because every case is different, every sentence should be based on the facts and circumstances of that case, with some leeway based on the defendant's prior record and the harm, if any, to the victim. Yet too often only the harsh minimum mandatory sentence is all that really matters and that's why as a civilized society we must abolish all mandatory minimum sentences.

Monday, June 16, 2014


A jury trial is like climbing a mountain. When you reach the highest peak the view from above will be worth the effort; but if the peak is never reached, then the time, effort and expense will have been wasted. 

No one willingly subjects himself to a jury trial in a criminal case, yet there are occasions when a trial by jury is necessary. One reason for a trial is the most obvious. It's comes when a client insists he's innocent. There will be no plea negotiations. There will simply be a courtroom battle.

Too often the criminal justice system grinds down a defendant's will until the only reasonable choice seems to be to take a plea offer. Yet even the best defense lawyers sometimes forget that every client is presumed innocent under the law until convicted. Even more unusual for lawyers and judges to believe, it's possible that a client who claims to be innocent may in fact be innocent. It's not for the defense lawyer to determine innocence or guilt, but to find the best possible outcome for the client in each criminal prosecution. 

Just as clients are often ground down by the criminal justice system, so are the lawyers and judges. This is true because a high percentage of cases especially in federal courts plead guilty. A recent study established that for the past ten years 96% of defendants in federal court pled guilty leading many defendants to believe the system is rigged to find guilt and to avoid jury trials. One suspects that in the Middle District of Florida in Tampa and in the Florida state court system as found in Pinellas County, Florida that the percentage may be only slightly less.

What this means for defense lawyers is that legal victories are often hard to achieve for any client, let alone those who are innocent, thus further dampening the fervor to achieve brilliant court victories, since even the best defense lawyers must advise their clients of the current probabilities of jury trial success.  Perhaps clients would be well advised to find out when their lawyer last went to trial and what the result was, because one factor of importance in successful plea negotiation is the willingness of defense counsel to go to trial even on a losing case when necessary. Perhaps a client can learn more about the grit of a lawyer from that lawyer's defeats than his winning percentage.

There's something noble about the bloodied fighter getting off the mat despite the pounding. There's something eternally mysterious about the moment before the foreman of the jury announces the verdict. Heart skips a beat, time seems to stop, till 'not guilty' fills the courtroom, feel the deep exhale from your client within, the laughter of his family, a nod from the stern judge, a feeling not just of happiness envelops you but a feeling that justice can prevail in this America, our America, and that justice is worth fighting for.

Friday, June 13, 2014


It's not unusual for someone facing a criminal charge to make the foolish decision of absconding, which is the legal word for leaving before the case is finished, while on bond for a criminal charge in Florida. The reasons for leaving don't always have to do with fear of punishment, but may include being overwhelmed by the pending criminal court case. Yet even the best reason or motive one may have had for leaving will be of little importance if Florida finds the absconder and begins the process of extradition.

The first important consideration is whether the case was resolved or unresolved when the defendant absconded. If the defendant plead guilty or was convicted by a jury, then the case was resolved and the defendant was waiting for sentencing. But if the defendant has not been found guilty of the offense, then the case remains unresolved and is very much still pending. 

In cases that are unresolved the Defendant's absconding will trigger a review of the file by prosecutors to determine if the case is still viable. The criteria of viability is whether prosecutors are persuaded that the case is still winnable at trial, which is the same criteria prosecutors use in making an initial filing decision. Factors prosecutors will look to include availability of evidence and witnesses.

In a sense the case begins again. Yet it's unlikely that a judge will grant any kind of bond while the case is pending because of the failure to appear. The only way a bond would likely be issued is if the defendant turned himself in or the defendant's counsel can establish to the court that the case involves a nonviolent crime, that the defendant is not a threat to run again or that the case if very weak. 

Having looked at unresolved criminal cases, let's look at resolved criminal cases in which the defendant absconded before either pleading guilty or bing found guilty at trial. Here are several factors that a judge might take into account in determine what an appropriate sentence would now be if the case was resolved before flight where the only issue is what the sentence will be rather than guilt or innocence. 

First, the court will look at the underlying Florida scoresheet and guidelines to determine what the guideline range was at the time as a baseline for sentencing. This will not necessarily be the limit of possible prison time in that other factors will also be looked at.

Second, the court will add any points for additional charges. One typical charge that prosecutors may file is simply an escape charge. Escape would typically be filed if a defendant plead or was found guilty at trial but absconded before the sentencing date. An escape charge will not only add more prison time, but make whatever time is served much more stringent.

Third, the court will look at what the defendant was doing while away. Was the defendant a model citizen in the community or was he arrested on other charges during the time he absconded?

As you can see if you have a resolved or unresolved pending criminal case in Florida, it's important to consider all of the consequences with a criminal defense lawyer before returning to Florida.

Tuesday, June 10, 2014


It's not unusual for someone who has lived, worked or merely vacationed in Florida to find years later that there exists a pending active arrest warrant. No wonder the official Florida motto is - the rules are different here. Often the pending arrest warrant is for some alleged nonviolent crime such as theft, worthless check or failure to pay for lodging, gas or food. 
In Florida arrest warrants are often issued after people leave without them knowing that they allegedly committed a crime, so it's important to do whatever is necessary to have the warrant withdrawn.
Sometimes the arrest warrant is for a violent event that did not result in immediate arrest such as assault, battery, disorderly intoxication or an altercation at a bar. The typical result is that a defendant only learns of the arrest warrant by accident possibly years after the alleged event. And it's worth knowing that an arrest warrant in the computer system will give every officer the right to arrest you until the warrant is withdrawn.

What should someone do when confronting an allegation of criminal conduct from years earlier when recollection of the events with possible defenses have vanished? Before you turn yourself in on an arrest warrant it's important to get some advice from a defense lawyer. In essence the question leads directly to the answer. If a defendant finds it difficult to defend a case, how will Florida prosecutors be able to successfully pursue a conviction? Witnesses may have disappeared, victims may have moved, business may have gone bankrupt. Older arrest warrants may be available to the Clearwater Clerk of Court in Pinellas only on microfilm. 

It's important for your defense lawyer to examine the facts and circumstances of the underlying facts. After an investigation of the factual allegations documented within the arrest warrant, then it's necessary for your lawyer to examine the arrest warrant itself and the charging document known as the information for clues as to whether police and prosecutors made a good faith effort to timely pursue the arrest warrant when it was freshly issued.

The more stale a case has become the more difficult the case will be to successfully prosecute. After a thorough examination of every weakness of the arrest warrant, your defense counsel will contact prosecutors at the Pinellas County Attorney's Office to persuade them that the case is unlikely to be won at trial. If prosecutors agree that too much time has passed to pursue the case, then they will issue a document known as an administrative nolle prosequito to the Pinellas County Clerk's Office which withdraws the outstanding arrest warrant. This document is typically filed if it can be proven that there has been no procedural activity on the case for at least a period of three years.

Thursday, June 05, 2014


The U.S. Attorney's office in the Middle District of Florida has linked improper police use of the Florida driver's license database to IRS fraud. Apparently personal information of thousands of Floridians was compromised in an identity theft scheme to defraud that originated from the Tampa police department. A federal grand jury is now looking at possible indictments against members of the Tampa police department reportedly including a fired Tampa homicide detective who allegedly used information gleaned from homicide victims to perpetrate tax fraud and Identity theft. 

For too long police officers have abused their access to personal information of citizens. It's long been a problem in the Tampa Bay area. Recently a Sergeant with the Clearwater Police Department was found to have used the DAVID drivers license database to gain personal information about other officer's wives. Officers have also been disciplined for misusing the information for personal benefit in many other ways. 

Ultimately the problem is exasperated in that too many inessential officers have access to the database, this leads to casual use and abuse of the database. The database should be handled with the same care given to the property room where evidence of crimes is kept until needed for trial. Only officers who establish a need to be in the property room are granted entry. Logs are kept of time of entry and leaving with what was taken out. Video cameras record what officers do when in the property room.

If evidence in a cocaine case can be kept safe, so can our personal information. Officers should have to submit daily lists of what information was collected with justification for the need for the information to a superior. Any use without justification should result in an immediate investigation of the officer. If the police are unable to safely guard the personal information in their care, then the information should be taken from every law enforcement officer who has no special need for it and given only upon a showing of proper need to a judge.

Everyone can agree that any clear misuse of the database should result in firing. However, law enforcement officers who misuse the database should not be shielded from criminal prosecution. 

Wednesday, June 04, 2014


A Florida judge had an unusually harsh response to a public defender's request for speedy trial, "You know if I had a rock I would throw it at you right now, stop pissing me off. If you want to fight let's go out back and I'll beat your ass." Soon Judge John Murphy and the public defender could then be heard having at it in a loud altercation outside of the courtroom video camera. It's unknown if the judge also has plans to fight the public defender's client or any others in attendance, but he has been accused of sucker punching the hapless public defender.

Could the judge be prosecuted and sent to jail or will he merely face a complaint for being abusive, rude and intemperate? While patiently waiting for his call to hire me as I calculate what kind of fee discount to give a lunatic judge, let's look at some of his possible defenses to the charge of battery. The judge could go deep in arguing that any lawyer deserves to be taken to the woodshed when asking for something as unlikely to be granted as speedy trial requirements in Florida. After all, unlike a good fair fight, asking for a client's speedy trial is a known wast of time.  

Of course, the judge could argue that this is a clear case of mutual combat. In accepting the formal challenge of a fight, the public defender should not be viewed as a victim but as a co-combatant. Perhaps everyone who suffers with the judge on a daily basis should be presumed as co-combatants.

Yet in other cases involving bar room fights rather than courtroom tussles, police often arrest both parties not only for battery but for disorderly conduct. And the police likely would also investigate both combatants for intoxicating substances. Is it possible that our careless judge became intoxicated from wearing a black robe for too long? Or maybe the judge just doesn't like trials. In Judge John Murphy's application filed with the State of Florida to be named a judge, he wrote that he had only had twenty-five jury trial over his entire career.

Finally, the judge could explain in mitigation of sentencing that he was merely standing his ground with fists rather than Florida's more traditional lawful lethal weapons. No, his best defense is to set his battery case for a trial as soon as possible - after all, this is his career - to let a fair minded American jury decide his fate before the Judicial Qualification Commission gets the facts. Unfortunately for that to happen he'll need to find a defense lawyer not only willing to ask for a speedy trial, but ready to fight some fool judge to get it. 

Tuesday, June 03, 2014


Gloating officer with a bag of marijuana looks like he might enjoy using the smell of pot to gain entry to a home or vehicle with a search warrant in Tampa Bay, Florida.

Pinellas Circuit Judge Andrews recently found that a nosey police officer's testimony was too incredible to be believed when the officer said he could smell marijuana in a vehicle he wanted to search for drugs. As often happens in Florida although the vehicle did have cocaine when searched without a warrant no marijuana was found. Officers in Florida are taught to use the smell of marijuana as a pretext to search vehicles without taking the time, paperwork or probable cause for a proper search warrant.

In his written opinion the judge noted that "... it stretches the limits of credulity for this court to believe that the search of the defendant's vehicle was based upon the odor of marijuana." What then, one wonders, was the search based on and why did officers choose that particular vehicle to stop?

Of the many St. Petersburg Police officers at the scene of the pulled over SUV only one testified that he could smell marijuana albeit mixed with vanilla air freshener to justify the search. Clearly when other officers could not readily obtain a search warrant, this officer decided that breaking the law justified an unlawful search. And let's not mince words - the officer did break the law. First, the police officer committed at least a trespass and possibly an armed burglary of the vehicle since he had neither a search warrant nor permission to enter the vehicle. Second, the officer while testifying that he smelled marijuana may have committed the crime of perjury if he knowingly lied under oath during the Motion to Suppress evidence.

This manufacturing of evidence has been a recurring problem with Tampa Bay police officers. The only way for it to end is not only for heroic judges to throw out cases based on lies, but for the police departments to punish those who do it. 

I had a case in the Middle District Court in Tampa in which the initial stop was based on the very strong smell of marijuana. Yet when the trunk was opened without a search warrant there was no marijuana at all only a large quantity of methamphetamine. Despite suggestions from the government agents that marijuana must recently have been in the drunk, but offloaded just before the stop, the more reasonable likelihood is that the agents simply were not being honest.

Each defense lawyer in Pinellas County, Florida should be on the look out for any cases involving this officer. All of his pending cases should be reexamined by the state attorney's office to determine if the factual basis for criminal charges is corrupt. Further, every plea and every conviction involving his work should be investigated. If it is found after an investigation that the officer knowingly lied to the Judge or entered the vehicle inappropriately then St. Petersburg Police Department should not only fire the officer, but arrest him for perjury, trespass or armed burglary.