Thursday, January 21, 2016


An arrest merely means that a police officer believes that a crime has been committed and that the arrested person was the perpetrator. Yet we all know too well that officers just like each of us are as prone to making occasional mistakes. When you consider the stress of their jobs, the need to protect the public as well as themselves from violence and their desire to implement fast-paced decision making, mistakes are often part of the process of any typical arrest. In fact, the chances for mistakes or inappropriate behavior from an officer increases with the significant of the felony or misdemeanor being investigated.
Townspeople locked in Mayberry jail.
Deputy Barney Fife arrests Aunt Bee 

That is why an arrest in itself is not a significant factor in whether criminal charges will actually be pursued by the prosecutors at the State Attorney's Office. The way to think of the officers and deputies of the Clearwater Police Department and the Pinellas County Sheriff's Department or other police departments is that their investigations act as the initial filters in criminal cases. They must decide if a crime has been committed and if so whether an arrest will be made. Factors which result in an arrest by local law enforcement include the severity of the alleged offense, whether the crime was violent and whether the defendant is likely to flee.

Yet in practice every felony will eventually result in an arrest tho the arrest may be postponed to an agreed upon time after negotiations for a system walk thru with fingerprinting and the posting of an appropriate bond under certain circumstances. Law enforcement may choose not to arrest immediately but to proceed based on an arrest warrant, then it's important to learn how to turn yourself in on an arrest warrant without spending time in jail. Most misdemeanors need not result in an arrest unless. However, officers in Florida must make an arrest when called to battery domestic violent cases, DUI or driving while license suspended or revoked for public safety reasons. 

Once the police have made a decision to arrest, then the State Attorney's Office makes a decision as to whether to file the case. Just as important a decision must be made as to how to file the case, should a felony be reduced to a misdemeanor even if it is filed? If the state elects to no file the case it acts as a unilateral dismissal not requiring permission from any Court. A notice of the dismissal is simply filed with the clerk of court and posted into the file. 

The criteria used by the prosecutor to file is twofold. First, can the criminal case be won at trial. Second, is filing the charge just. As you can imagine a skillful defense lawyer will bring every possible argument in persuading the prosecutor not only that the case can not be won at trial but that justice demands that the case be no filed.

Tuesday, January 05, 2016


In American criminal law is it possible to have justice without fairness? The unambiguous answer from our United States Supreme Court could be viewed as almost un-American. After all how can there be justice unless it is laced with fairness?

Yet our Court has often ruled that for expediency, also known as judicial economy, proof of absolute innocence - even for a defendant facing serious consequences such as the death penalty - is not sufficient reason alone for the Court to address a case.
Even this cold Lady Justice
is presumed innocent till proven guilty.

Thinking about the lawful definition of justice in America today leaves little room for questions of fairness. Instead the Court looks to finality. The need to always be moving forward with an ever lengthening line of criminal cases persuades the Court that each case must be resolved within its given framework of available time. When the clock runs out, the sentence stands for all time, innocence be damned. The prevailing law for criminal justice in our country is justice as convenience rather than justice as fairness.

And that makes the occasional call for fairness from a defendant's family member years after some obvious abuse easy for the criminal justice system to simply brush aside. The likelihood of success in opening a long ago closed case becomes a game of finding some method to lever the case open. It has nothing to do with guilt nor innocence. 

An example of the quality of leverage required to reopen a change of plea would be finding proof thru the Court Reporter's transcript of proceedings during the change of plea that the judge failed to ascertain if the defendant was affected by medication during the process of the plea. Other examples that could result in a plea being overturned would be incompetent counsel or not knowing the English language. In Florida most judges read questions and await responses with further probing questions when in doubt about the integrity of a plea with the goal of making certain that someone who pleads fully understands what he is doing as well as the consequences of the plea. 

If there was a trial by jury and the appeals process has run its course, then the chances of finding some lever to reopen a case are even more remote. Clearly once a person is found guilty there can no longer be any presumption of innocence. Unfortunately arguments based on fairness such as one that the defendant is actually innocent will be of little use. Allegations of unfairness and even proof of innocence will not likely to change the result of a criminal case. All of this means that the best chance for success in any criminal case is at the beginning.