Thursday, February 26, 2015


Mark Rutledge McGarry Jr.
Judge Mark McGarry

One of Pinellas County's best judges recently died. Judge Mark McGarry served as a judge from 1968 until his retirement decades later. With him goes a charming era when good judges mentored, trained and helped the lawyers who practiced before them. He often bettered lawyers with wit, charm, care and compassion, always a sly jesting glimmer in his eyes.

After thirty years of practicing law I've found that putting on that black robe often changes folks for the worse. I wonder why. Is the power? No, if anything most of a judge's time is spent in boring ways. Pushing shopping carts full of court documents and files thru the criminal justice system with endless status checks, pretrials, hearings, trials and appeals.

The only way a person of genuine intelligence like Judge McGarry was able to sit still on that bench for hours at a time that became years and then decades was because he spent much of that time dissecting those before him, often drawing New Yorker styled cartoons lampooning the judicial system, witnesses, bailiffs, and hapless lawyers who somehow bungled their way into his courtroom. He was deliciously pleased by the casual inadvertant catastrophy that make trials interesting for spectators and nightmarish for lawyers. The police officer who submitted that wrong evidence, say mislabeled cocaine in the marijuana trial, could happily lay claim to immortality, at least for us - laughing -who later saw the cartoon.

And yes, he could be cruel now and then, especially as retirement drew closer. He didn't like the way one somewhat pretentious, politically well-connected prosecutor treated a witness during a jury trial. The prosecutor's last name was Todd.  Judge McGarry waited for the prosecutor to finish questioning the witness by simply saying, "Mr. Toad, do you have any other witnesses?" I don't recall hearing the judge ever use the correct name again.

Of course, it was a different world then. During most of his time while serving as a Circuit Court Judge in Pinellas County only white men could wear those black robes. Bringing more women and minorities onto the bench should also have brought fresh awareness of how the criminal law should be applied. 

Yet Judge McGarry was ahead of his time in understanding the dynamics of fair sentencing. He understood that harsh minimum mandatory drug sentencing merely takes away the judge's discretion to sentence fairly. He knew sentencing guidelines and sentencing scoresheets were simply wrong and he did everything he could to ensure fairness in the sentencing process.

No wonder Judge McGarry left the bench when he did, head held high, an courageous, honest judge. Not long after he left the bench judges, prosecutors and defense lawyers became little more than calculators - adding machines to compute the scoresheets for Florida sentencing guidelines - as nothing but numbers now mattered. There would be no time for laughter nor for cartoons, it was to be all about punishment.

Monday, February 23, 2015


 florida beach clearwater where criminal law still applies and often ruins lives of those who live in Florida or come for vacation.
 Clearwater Florida: The Rules are Different

A few years ago Florida spent millions of dollars to promote as its apt tourist slogan, "the rules are different here." For those who live in this sunshine paradise as well as the travelers who spend time at our beaches, bays, lakes, bike paths and rivers time spent here can be carefree and beautiful.

Yet that slogan also has deeper meaning in that Florida imprisons a greater portion of it's population than most any other state not in the deep south. Yes, without a doubt the rules are different in Florida. Its not unusual for Floridians and vacationers to find that their Florida dreams are ruined from criminal accusations. 

Florida is a state that harasses, arrests and incarcerates people for 'crimes' such as marijuana possession that would not even be illegal in many parts of the country. In fact in Florida it is still an illegal misdemeanor to co-habitate with someone who is not your wife or husband. 

Clearly, Florida prosecutors, sheriffs, deputies, officers and judges should prioritize crimes. They should use discretion with understanding and compassion. Technically criminal offenses of a nonviolent nature such as drug crimes, thefts, and trespass should be taken care of with a civil citation requiring a fine or community service for quick dismissal of the case without need of hiring a criminal defense lawyer. 

In some parts of the state such as Tallahassee experiments with civil citations program are being used effectively for victimless crimes such as petty theft. Having succeeded in not making criminals of large portions of the population the civil citation program should be promoted in every part of Florida rather than just the capital. But law enforcement and prosecutors prefer to make arrests so that they can justify their ever increasing budgets.

In Clearwater, Pinellas County, Florida alleged incidental bad behavior often results in an unnecessary arrest that forever brands the accused as a criminal even if the charges or dropped or the defendant is later found not guilty. For example, is it really reasonable to arrest someone for criminal mischief who is caught taking the air out of a friend's tire as a joke? Somehow police, prosecutors and judges have lost proportionality in arrests and sentencing. Until the criminal laws in Florida are changed a Clearwater criminal defense attorney often must be retained to bring some common sense to the prosecutors, the police and the judge.

Wednesday, February 18, 2015


Image result for crop dusting cary grant
Cary Grant: On Mushrooms & LSD  

Should outlawed drugs be legalized for medical use? New studies indicate that marijuana is not the only federally outlawed drug that has legitimate medical uses. 

Psilocybin is a natural hallucinogenic found in magic mushrooms, that was once used by native Americans in ancient mystical healing and hunting rituals. A stunning New Yorker article analyzes current medical studies at teaching hospitals such as John Hopkins that have found that psilocybin - one of the harshest penalized schedule one drugs under federal law - is very beneficial for many cancer patients facing death.

The drug temporarily reduces time and space while widening empathy thus allowing the user to forget his or her existence while expanding the definition of self as part of the universe absolved from the indignity of death. When administered by therapists patients unburden their minds of the dread of death and separation from those they love. Those given the drugs often find that it was one of the most comprehensive, important and memorable episodes of their lives on a par with the birth of a child. 

Patients make their way thru a classic 'psychedelic drug trip' not unlike those described by groups such as the Beatles in the turbulent sixties before psilocybin and other drugs such as LSD were designated as unlawful. During the sixties it wasn't only Lennon and McCartney who found that the drugs opened up their feelings, to love and to life, but so too many Hollywood elites such as the graying middle aged Cary Grant. He noted that taking LSD helped him understand that he was merely a child of the universe, albeit a debonair one, forever lifting the fear of death from his shoulders, even as Alfred Hitchcock's crop dusting plane flew closer.

So why were these drugs designated by Richard Nixon as unlawful federal schedule one drugs - the most dangerous category - on a par with trafficking in heroin under harsh federal sentencing guidelines? Peace, love, and conscience raising combined with licentiousness was feared as socially explosive. 

The tragic solution was to outlaw the drugs to dampen the cultural rebellion of the sixties. The world of Woodstock would become a crime. Those who delved into these chemicals would become criminals filling our prisons with the most nonviolent, antiwar members of society. It's time for the federal government to right these wrongs and legalize every drug that helps people.

Tuesday, February 10, 2015


In a new study the use of marijuana was found not to increase the risk of car crashes. After adjusting for age, sex and alcohol use the study showed that people testing positive for pot were not more likely than other drivers who were not using drugs or alcohol to cause or avoid car crashes. When pot is combined with alcohol use the synergetic effect of the combined drugs could increase the chances of a car crash. The study undermines the rationale for DUI laws that include pot as a possible single intoxicant to define marijuana impaired driving. 

Every criminal law should have some basis either in morality or scientific fact. It's clear that many laws criminalizing marijuana use are not based on any actual scientific studies. Instead criminal drug laws including those for marijuana are too often based on whim, class war, fear and politics. The results are miserable with people's lives being ruined by criminal statutes that have no basis in scientific fact. 

Those who use drugs should not be harassed, arrested nor charged with crimes and heavy marijuana penalties. Too often police use inappropriate and un-american tactics of drug searches and seizures to fight their unilateral drug wars often without seeking proper search warrants from judges. Because of the widespread use of drugs the process itself is fraught with hypocrisy with many of those in law enforcement including prosecutors and police officers using illegal drugs recreationally. 

Yet those arrested pay a heavy price not only in fines, probation and jail, but also in how they are later treated within the community. Despite Clearwater criminal drug court, those facing drug sanctions live in constant fear and intimidation of the law. This new study should go a long way toward changing the fanatical attitude of many narrow minded Americans who would take away the freedom of others to live life as they choose. 

Monday, February 09, 2015


Recent articles in the press further establish that Florida's prison system is a failure. This is not unexpected, as I've noted here repeatedly that the Pinellas County Jail has many problems that have not been fixed. Why should we expect more from other prisons in the Florida Gulag? The Pinellas Jail fails to protect and provide for federal and state prisoners in the following ways:
Florida tourism ad to lure Americans to VISIT FLORIDA just be careful not to visit Florida's unsafe jails especially in Tampa Bay and Clearwater.
  1. The Pinellas jail fails to provide prisoners with proper medical care. The sheriff allowed a contract with a private firm to continue giving medical services at the Pinellas Jail even though he was aware that the same medical service provider at the Hillsborough Jail was involved in a case where a prisoner died from lack of proper medical care. Only now, after further frustration with the provider is the sheriff finally reevaluating his decision.
  2.  The Pinellas jail is unable to protect prisoners from violence. One young man in jail for a misdemeanor was strangled to death at the Pinellas Jail by a serial murderer at the jail not long ago. Not only are prisoners subjected to attacks from other prisoners, but they also face the occasional bludgeoning from jail guards. In a case a few weeks ago a Pinellas Deputy at the jail was fired after beating up a man in a wheel chair. Why wasn't the Deputy also subjected to charges of battery or aggravated battery. The answer is not mere firing instead a grand jury should be convened to ascertain if there is a systematic failure to protect prisoners and where there is an alleged beating charges should be filed against the officers just as they would be filed against any other citizen who commits a battery or aggravated battery.
  3. The Pinellas jail provides terrible food. The jail purposefully has poor food so that the jail with a private company can make money by selling edible food to the prisoners who can afford it. This introduces a destructive barter system at the jail. If the issue is money why not provide land for the prisoners to grow their own food and opportunities to learn how to cook. 
  4. The Pinellas jail does not provide sufficient educational opportunities, books nor other library material. 
  5. The jail does not give prisoners enough time to exercise nor to get fresh air. Often the time allotted is merely one hour a day.
  6. The Pinellas jail is overcrowded with more prisoners than it was meant to hold when built. The Pinellas prison population has soared even though the crime rate in Pinellas continues to fall.
As bad as my clients have told me it is, I've always found while visiting the Pinellas County Jail that those who work there are professional, competent and caring (good to write just in case I end up there). Clearly, these local jail problems are mirrored throughout the entire Florida Jail System. The remedy needs to come from the top with a decision to treat prisoners with respect and compassion making time served in prison or jail not just about punishment, but an opportunity to help educate, elevate and give treatment for prisoners especially for nonviolent crimes such as drug crimes.

Monday, February 02, 2015


Since time immemorial under common law sentencing decisions have not been made by juries, nor by defense attorneys, nor thankfully, by prosecutors. Yet many judges either from laziness or abject cowardice defer to prosecutors at the time of sentencing. 

My fair lady poster.jpg for a fair federal or state judge in Tampa Bay, Florida
Fair Judge of more than Accent
In the Tampa Bay criminal courts in the Clearwater courthouse most prosecutors are assigned to specific divisions. Each criminal division has its own presiding judge. The judges see the prosecutors almost every day, see them when a search warrant needs to be signed at night, see them occasionally on weekends at advisories for the newly arrested's bond hearings, see them at parties for court personnel such as the bailiffs or the judge's judicial assistant or the judge herself. In short the judges trust and know the prosecutors much better than they do private defense lawyers. Clearly, prosecutors should be assigned cases randomly in different divisions so that they do not have an unfair advantage during sentencing hearings.

But besides trust and knowledge the prosecutors also have leverage over judges. They have the ready means to appeal unlawful sentences that many defendants can not readily afford. And the implicit threat of possible appeal forces some judges to abandon fairness in favor of the easier path of accommodating the prosecutor. This could be stopped by having the prosecutors office share the costs of any appeal made by any party or by defraying the expenses of appeal with additional damages for time, expense and aggravation when defendants successfully win a criminal appeal.

In federal court in the Middle District of Florida in Tampa the judges would at first glance appear to be bound to give due consideration in sentencing to the federal sentencing guidelines as well as to the Pre-sentencing Investigative Reports (PSR) created by federal probation officers at the behest of federal magistrates for the district judges who actually preside over each sentencing. The goal for a PSR is to present for the federal judge an unbiased view of the defendants life, criminal history and criminal conduct while also establishing an accurate assessment of how the federal sentencing guidelines should be calculated. 

Yet the federal probation officers tasked by the court to write each PSR are anything but unbiased. They use the case reports from case agents from the FBI and DEA with conversations with federal prosecutors to determine how the sentencing guideline range for each federal defendant should be implemented. They often have little or no contact with defense counsel until after the PSR is filed. The defense attorney may object to the report in writing, but often the damage has been done. And usually the PSR will not be amended unless the federal prosecutor agrees. 

Clearly, the federal sentencing guidelines should bar any contact, collusion or conversations between prosecutors or case agents and probation officers assigned to complete the PSR. Instead both the prosecutor and the lawyer for the federal defendant should give a written proposed PSR with the officer. If there were fair Pre-sentencing Reports, fairer sentencing based on compassion would result. 

Ultimately the criminal justice system in Tampa Bay, Florida needs unbiased judges who have the courage to sentence defendants in a fair manner. And we need defense lawyers who aren't intimidated by the process nor afraid to demand fair sentencing for criminal defendants.