Wednesday, October 19, 2016


New data proves what many of us who are plugged into the criminal justice system in Tampa Bay have long suspected, Pinellas County has more drug arrests per 100,000 people than most other counties in Florida. This is especially disheartening when you consider that Florida itself has more drug arrests than other parts of the country. 

Contrary to the response from the Pinellas County Sheriff most of these arrests are not felonies. Nor are most of these arrests having anything to do with oxycodone, synthetic drugs, opiates, methamphetamines, cocaine, heroin or doctor shopping or forged prescriptions. No, most of these arrests involve small amounts of misdemeanor marijuana possession which is not even a crime in more civilized portions of America. Nor does our Sheriff want to decriminalize pot possession. Instead he still wants to make his arrests but allow citizens to go thru a burdensome process to have charges dismissed. It begs the question as to why small quantities of drugs ares still a high priority in Florida investigations and arrests.

Why here? Police budgets are firmly based on the number of arrests made. What's a few ruined lives compared to hiring more officers who then harass more citizens with needless arrests? Officers are taught to think first about finding and seizing drugs. Officers are promoted based on how many arrests they've made. To further their careers officer's misuse their power, even to the point of dishonestly claiming to smell marijuana to avoid the process of having a judge review a proper search warrant by using the laws of search and seizure to make invalid, unjustifiable drug arrests. The process of actively seeking drugs in vehicles demeans not only the officer but his uniform and the reputation the entire police department.

Why not instead promote officers based on how many people they help each day? That officer who risks her life to protect the elderly passenger in a stalled vehicle on U.S. 19 should earn much more respect than the officer who stops a car merely because the driver isn't wearing a seatbelt and uses that as a pretext to begin a drug investigation.

And don't think I'm making this up. In a recent marijuana possession case that I handled, my client was stopped for not wearing a seatbelt at nine in the morning on the way to work. The officer later said that he stopped my client because as he pulled up beside his car at a red light, my client looked away in a suspicious manner. The officer initiated a stop, pulling him over on his whim of hope for a nice arrest and immediately began a drug investigation, finding one bud of marijuana in my client's car. 

Did the officer stop to think that arresting someone is not the same as going fishing? Did it ever occur to him that people's lives really do matter and that pulling someone over for something as petty as a seatbelt infraction in hopes of making a drug arrest is a significant intrusion into that person's life. There was no allegation of being impaired nor any evidence of recent marijuana use.

 My client would have lost his job and likely been unemployed for awhile if he was convicted of the crime. He, his minor child and his wife would have lost their home and been reduced to living on welfare. Yet an officer decided to shake things up, do a little exploring and possibly ruin a few lives. Why?

Let's work to teach officers to simply look to first always help people. If you pull someone over for a seatbelt violation just casually tell the driver to buckle-up for safety. What we don't need are more overzealous police who start every encounter with a private citizen with the goal of making an arrest. Why not strive for loftier goals of helping our fellow citizens rather than needlessly turning them into criminals.

Tuesday, October 18, 2016


Every defendant faces the biases that abound within our criminal justice system. Even our best judges have latent biases while many of our worst judges where their biases on the sleeves of their judicial robes. Using their sentencing power to remain in office to perpetuate even further bias. 
Why do these 12 angry men look so similar?

Yet our system does have a safety valve of sorts in that every defendant can demand a jury trial to be judged by his peers. When one takes a sweeping view of our peers it's astonishing that anyone ever goes to trial especially in the Florida federal courts where defendants rightly view the judicial game of jury trials as being rigged in favor of the prosecution. Even our culture is permeated with images of bias. You need go no further than to look at a still from the movie Twelve Angry Men, which purported to show twelve very different Americans yet all the jurors are white, male and of similar ages.

The thoughtless or thoughtful judge will always say the right words for the record. The self-righteous judge will tell the lawyers on the record that they must select fair-minded, unbiased jurors. And the record will reflect the defense lawyer's repeated objections to the prosecutor's strategic use of challenges in creating the biased jurors the prosecutors want. Yet somehow those biased jurors stay on the panel making it more likely that you'll be looking for the best possible federal sentence after the inevitable conviction.

One helpful remedy is persuading the presiding judged to adopt the following proposed jury instructions on Implicit Bias:
 Do not decide the case based on “implicit biases.” Everyone,
including me, has feelings, assumptions, perceptions, fears, and
stereotypes, that is, “implicit biases,” that we may not be aware
of. These hidden thoughts can impact what we see and hear, how we
remember what we see and hear, and how we make important decisions.
Because you are making very important decisions in this case, I
strongly encourage you to evaluate the evidence carefully and to
resist jumping to conclusions based on personal likes or dislikes,
generalizations, gut feelings, prejudices, sympathies, stereotypes,
or biases. The law demands that you return a just verdict, based
solely on the evidence, your individual evaluation of that evidence,
your reason and common sense, and these instructions. Our system of
justice is counting on you to render a fair decision based on the
evidence, not on biases.
Source: U.S. CONST. amend. V; U.S. CONST. amend. VI; United States v. Hendrix, 549 F.2d 1225, 1227, 1229 (9th Cir. 1977); Jerry Kang, the Hon. Mark Bennett, et. al., Implicit Bias in the Courtroom, 59 UCLA L. Rev. 1124, 1182-83 (2012) (providing the above instruction, which is U.S. District Court Judge Mark Bennett’s standard jury instruction on implicit bias);  
This goes well beyond the typical language of using common sense as a federal juror in Florida to find the truth. And it asks each member of the jury to internalize the evidence thru the prism of not only his or her possible bias but other biases that may have leaked into the case and to "resist jumping to conclusions based on personal likes or dislikes, gut feelings, prejudices, sympathies, stereotypes, or biases..."

A federal jury instruction such as this gives additional leverage for the defense lawyer to articulate possible problems arising in the case where there's been known or unknown implicit bias. The lawyer in closing arguments will reference the avoidance of implicit bias as the law that the judge will provide to the jury as something important that is to be part of their deliberations. 

The goal of every trial should be to find the truth in a fair, non-biased way. To have fair trials in Florida federal judges who care about our criminal justice system should give this jury instruction when requested.