SHOULD FEDERAL JUDGES HAVE LIFE TERMS EVEN IF IT MEANS PRESIDING OVER TRIALS AT THE AGE OF 104?

Recently the oldest serving Federal Judge in America died at the age of 104; he often said he enjoyed his work but didn't like long trials. It's unclear if he's diligently continuing work in his Kansas Courtroom from the other side thru seances, but in all likelihood his constitutionally defined life appointment terminated upon his death.

U.S. Supreme Court, 1925

Though private employers might think twice before hiring someone who is a mere 67 years old; that's the average age of the members of our Supreme Court. 

Yet those youthful enough to remember a band known as the Rolling Stones might be surprised to find that the average age of Mick Jagger's band is 69, two years older than the Court. Both groups seem to be working hard into old age producing plenty of briefs if not hits.

As the average age of Federal District and Appeal Judges increases Federal Criminal Defense Lawyers may find that Federal Judges sitting on the case would never be tolerated at a law firm arguing the case. Often the huge backload of pending cases in Florida State and Federal Courts is reduced by experienced senior Judges who handle their assigned large caseloads with success.

The constitutional life term of Federal Judges was instituted to protect the Judiciary from the executive and legislative branches. And it has succeeded, but for an occasional imprudent threat of impeachment when a particular congressman disagrees with a Federal decision now and then. 

Yet wouldn't a long term of ten years or even twenty years accomplish the same objective? Or would the limit of time have the unsavory effect of making decisions seem political, a mockery of a fair court, masking even the fairest Judge's decisions with a cloak of selfishness. 

Compare the short term of Federal prosecutors in the Justice Department to the lifetime appointments enjoyed by Federal Judges. 

In the Middle District of Florida in Tampa it's not unusual for a new United States Attorney to be appointed by the President every three years or so. The idea is that the office is more significant than the person holding office and that all of us are better served if the power of that office is not vested in any individual for too long. But that power, the power to prosecute is much more destructive and powerful than a Judge's power, which ultimately rests upon mere words which others are relied upon to obey. 

Perhaps the framers of our constitution, having successfully battled a King, were wise in freeing our Federal Courts with life terms for its Judges. 

ANATOMY OF A VERDICT: HOW ANGELA DAVIS BRANDED A TERRORIST WAS FOUND NOT GUILTY BY JURY IN TEARS

Modern criminal defense may have begun in 1972 when Angela Davis, a committed communist, was found not guilty of murder, kidnapping and conspiracy by a white jury, after an eloquent closing argument from her lawyer, Leo Branton.

Angela Davis, center, in 1969

Angela Davis was arrested for providing the weapons used in one of the most troubling and notorious criminal cases of that turbulent era. During a routine trial of a youthful offender, the young man gained control of the courtroom taking the judge, the prosecutor and several jurors hostage. Eventually in a brutal police shootout the judge, prosecutor and one of the jurors who'd been taken hostage were killed.  

The case was presented by the FBI and the press as law and order versus anarchy and chaos. And it was proven that Angela Davis had purchased the sawed-off shotgun used to kill the judge two days earlier. 

Nixon called her "a dangerous terrorist," while John Lennon, Yoko Ono and the Rolling Stones recorded two songs defending her, Angela and Sweet Black Angel.

Her defense lawyer, who died two days ago, was one of the first to successfully use a team of psychologists to determine who in the jury pool would be most amenable to defense arguments. 
Yet what Clearwater criminal defense lawyers hope is never
 forgotten is the attorney's brilliant closing argument which reminded jurors of America's long road from slavery linked to residual racism which explained the fact that Angela Davis, an FBI  ten most wanted, had fled after the shooting. As a professor she'd long argued police could not be trusted often referring to them as pigs. 
As the NYT's noted in her lawyer's obituary this morning, his closing argument may have won the day:

Friends of mine said we couldn’t get a fair trial here in Santa Clara County. They said that we could not get 12 white people who would be fair to a black woman charged with the crimes that are charged in this case.Then he presented jurors with a drawing of Ms. Davis bound in chains, then a second drawing of her freed. He said:
“Pull away these chains,” he said, “as I have pulled away that piece of paper.“
Some jurors cried, and after she was acquitted, so did Ms. Davis. She also hugged the jurors.

The best Tampa Bay Defense Attorneys know that it takes much more than mere words reducing jurors to tears for significant not guilty verdicts; it takes finding shared values, dedication, skill and a lot of hard work.

WILL NEW LAW GIVE FEDERAL JUDGES SENTENCING DISCRETION TO AVOID AMERICAN OVER-INCARCERATION

Tampa Bay Criminal Attorneys aren't the only ones who believe federal judges must have more discretion and flexibility in sentencing.  

Soaring Safety Valve

For many years the Federal Sentencing Guidelines have taken sentencing discretion away from judges while giving prosecutors ever greater control of sentencing by determining how charges are brought before federal grand juries. When a minimum mandatory sentence is called for under the Federal Sentencing Guidelines, a judge is rarely free to go under the required sentence unless a Defendant has no prior criminal conduct under the Safety Valve provision or a Defendant co-operates thru substantial assistance to such an extent that other co-defendants are arrested at which time a prosecutor may file a motion for downward departure. 

The problem with the Safety Valve is that it is applicable only in drug cases. The problem with substantial assistance is that United States prosecutors often fail to file 5K or Rule 35 motions for downward departure even where there has been excellent co-operation. Under the statute the Judge does not have jurisdiction to hear any argument for substantial assistance unless the prosecutors file a motion thus giving the prosecutor more sentencing power than the sitting Federal District Judge appointed for life.

The press release from a Senator sponsoring the bill notes that from 1991 to 2011 the number of minimum mandatory penalties doubled. The Sentencing Guidelines have increased sentencing lengths for other crimes even where minimum mandatory sentencing doesn't apply. The resulting over-incarceration has been catastrophic for Americans as the current federal prison population of 217,000 is double what it was in the year 2000. The cost in wasted dollars is huge, but the cost in wasted lives is even greater; as the American prison system fails in rehabilitation while only providing ever greater punishments for crime.

The bipartisan Justice Safety Valve Act of 2013 would allow federal judges greater use of the Safety Valve provision in a much needed way so that judges will have the discretion to give fair sentences in all federal cases not just drug cases.

An expansion of the Safety Valve provision is beneficial for federal defendants in that fair-minded federal judges will have an opportunity to do what they believe is right under the facts and circumstances of each case listening to arguments of Clearwater Criminal Defense Lawyers as well as prosecutors to arrive at the best sentence rather than just the harshest sentence.

CRUEL & UNUSUAL: WHY A FLORIDA JAIL FAILS TO PROTECT & PROVIDE FOR STATE & FEDERAL PRISONERS

Your Clearwater criminal defense lawyer is often asked about the shameful treatment of prisoners in the Florida prison system. In Tampa Bay, Florida the worst prison I've come across is at the Pinellas County Jail. 
Federal prisoners are routinely sent there because the jail needs the federal money per prisoner to defray the cost of housing its own prisoners. 

Over-crowding Jail solved.

Despite the fact that every Deputy I've met who works at the Pinellas County Jail has been dedicated, professional and helpful; it's clear that the new Sheriff has failed in his primary responsibility to make the necessary changes so that prisoners are safe, have decent food and live in conditions that are not over-crowded.

First, the Pinellas jail is not safe. Many years as a prosecutor I handled a rape case where a young man who was being treated as an adult and was therefor at Pinellas County Jail awaiting his drug trial was raped and sodomized by a gang of thugs at the jail. 
The perpetrators were found guilty of sexual battery at trial, but the young man's life was unnecessarily ruined. The evidence I submitted to the jury was indisputable that Florida prisoners, especially the young or vulnerable, who find themselves incarcerated in Florida are not well protected from other prisoners.

Yet the Pinellas Jail is a dangerous place in other ways as well. It's always a good idea to be careful while taking a stroll there always being mindful of where you are. One of my friends, an attorney, sued the Pinellas Jail when a heavy metal door cut off part of her finger. 
But the loss of a finger is nothing compared to the prisoners who have died while waiting for proper medical care as has been reported in the press. Recently a federal Drug Enforcement Agent (DEA) told me that the only way he could ensure the safety of one of my federal clients from being harmed by other prisoners at teh Pinellas County Jail was to send my client to solitary confinement, thus severely punishing the very person they aim to protect. 
Besides failing to provide a safe environment. The Pinellas County Jail fails in providing decent food to inmates. Every federal defendant I've represented who has spent time at the Pinellas County Jail has asked if there's anything I can do about the horrible food. And yes, I've tried, but even upon showing a medical or religious food requirement the jail fails in a primary function of providing edible food. Why? The jail makes a tidy profit by forcing inmates to buy large quantities of additional food from vendors. 
And it's not just food that provides money thru vendors. A federal female inmate facing methamphetamine charges was ashamed to tell me that the jail would not provide her with clean underwear as it expected her to buy them. Further, she told me that she was only given up one hour a day in the fresh air. And like every other federal inmate housed there while waiting for trial or sentencing she told me the food is so poor that she can hardly eat it.
All of these issues take on even greater risk because of the fact that the jail is over-crowded. It's odd that the jail is over-crowded when you consider that the crime rate is down in Pinellas County according to the Sheriff's office, yet incarceration levels soar.
A large part of the problem of over-crowding in Florida jails is that Florida law makers are not doing enough to ensure that prisoners receive education, training and proper correction so that they have alternatives other than further crime upon achieving freedom as noted in the Miami Herald. But when there isn't enough money being spent to protect, feed and clothe prisoners of course there won't be enough to help them in other ways.
Apparently Circuit Judges in the state of Florida do not believe that the substandard care at the Pinellas County Jail equates to cruel and unusual punishment. However, the jail does not meet the higher standards and requirements of the Federal system. What action can be taken to remedy the lack of safety, the poor food, the reliance on vendors and over-crowding at the Pinellas Jail?
Your Tampa Bay Criminal Defense Attorney strongly urges Federal District Judges to direct the Federal Marshall's office to refuse to send prisoners to the Pinellas County Jail until all the problems at the jail are rectified; at least then the jail won't be so over-crowded. And the Pinellas Sheriff will have some incentive for the jail to reach for a civilized standard in treating prisoners.

CAN YOU HAVE A VIOLATION OF PROBATION HEARING BEFORE THE OFFICER WRITES A REPORT IN FLORIDA

Your favorite Clearwater criminal defense lawyer was recently asked whether a Judge would personally listen to an alleged violation of probation before the probation officer files the violation report.

Here's the question:

I'm on probation in Pinellas County, Florida for grand theft. Until now I've had no violations of probation. But I recently lost my job. I can barely keep a rough over my family's head. 

Now I'm looking at a violation of probation for not having a job, for failing to pay restitution in the grand theft case, for being behind in my monthly payments to the probation officer and for not paying court costs. 

What should I do? Is there any way that I can explain my situation personally to the Judge before the probation officer violates me or issues a warrant for my arrest?

We could take a few dozen bottles of Tampa's Cigar City IPA beer to the Judge's house to personally discuss your future violation of probation while waiting for the SWAT team to take us away. But what you're thinking is right on track - you want to immediately schedule your violation of probation hearing before you get arrested and maybe even before the probation officer can get a word or two in against you. 

Under Florida Law when a probation violation occurs in Tampa Bay, Florida, the probation officer writes a violation report that is sent to the Court, the prosecutor and the defense attorney. The violation report elaborates for all the parties each alleged violation. It's a very important document similar in someways to an indictment in that it tells you exactly how the officer believes you failed to meet the obligations of your probation. Until the violation report has been written a hearing can not be set with the Judge because the parties to the case do not yet know what may or may not be included in the report. 
No Judge would make a ruling on a possible violation of probation without knowing in detail what the alleged violations are. Nor would the Judge make a ruling without notifying all of the parties of a hearing for which all of the parties have ample time to prepare. Once the violation report has been written and filed, then an attorney can set the case for an immediate violation of probation hearing where the Judge will listen to testimony, view any evidence and determine if there is a violation of probation. If he decides there is a violation then the Judge will sentence the Defendant.

The good news for you is that Judges in Florida no longer view not having enough money as a significant probation violation as long as the violation is not willful. It would be willful if you just quit your job because you didn't like it, not willful if you were fired. Yet under the conditions of your felony probation it was mandatory that you have a job so that you could make payments toward restitution and court costs (as to court costs, the thinking seems to be someone needs to pay those judges and prosecutors, it might as well be you). These violations often are known as 'technical violations' in which the Court would likely violate your probation by avoiding jail by extending your probation allowing you more time to find a job. 
Once you've completed the obligations of your probation or if it becomes clear that the obligations of your probation must change so that you can successfully meet the requirements of probation, then your Tampa Bay Criminal Defense Lawyer will persuade your Judge to terminate your probation so that you can live a full and productive life without having to report to any probation officer in the future.

ATTORNEY GENERAL ATTACKS LONG PRISON SENTENCES: TWO MILLION AMERICANS IN PRISON IS FAR TOO MANY

Your favorite Clearwater Criminal Defense Lawyer recommends that every American listen to last night's heroic speech by Attorney General Holder in which he outlines the failed brutality of harsh minimum mandatory sentences in America, a country that incarcerates one out of every twenty-eight of it's children as well as two million of its adults.

DOJ for Fair Sentencing?

The truth is that minimum mandatory sentences especially in nonviolent drug cases are destroying far more lives than the underlying crimes being punished. 
Federal Sentencing Guidelines have taken far too much discretion from fair minded federal judges and given that discretion to ambitious prosecutors out to make a name for themselves by scoring ever longer prison sentences in high profile drug cases. 


Their boss, the Attorney General, states in his speech that the Federal Sentencing Commission and Congress need to rein these prosecutors in by working to reduce tragic outcomes by giving discretion back to federal judges. After noting that more than two million Americans are in prison he gave some hope for change:

The Department of Justice is determined to continue working alongside Congressional leaders, judges, law enforcement officials, and independent groups – like the American Bar Association – to study the unintended collateral consequences of certain convictions; to address unwarranted sentencing disparities; and – where appropriate – to explore ways to give judges more flexibility in determining certain sentences.  

Too many people go to too many prisons for far too long for no good law enforcement reason.   It is time to ask ourselves some fundamental questions about our criminal justice system.   Statutes passed by legislatures that mandate sentences, irrespective of the unique facts of an individual case, too often bear no relation to the conduct at issue, breed disrespect for the system, and are ultimately counterproductive.   It is time to examine our systems and determine what truly works.   We need to ensure that incarceration is used to punish, to rehabilitate, and to deter – and not simply to warehouse and forget.

The Attorney General also described the enduring problem of disparity of sentencing in his speech:

  I am concerned by a troubling report released by the United States Sentencing Commission in February, which indicates that – in recent years – black male offenders have received sentences that are nearly 20 percent longer than those imposed on white males convicted of similar crimes.

It took far too many years for the Sentencing Commission and Congress to finally change the disparity of sentencing in cocaine versus crack cases. Clearly the criminal justice system in America today is failing in its primary obligation to provide fair sentencing which as the Attorney General notes in his speech must also "promote public safety and deterrence." We finally have an Attorney General, now free from political constraints from the President's re-election bid, who can do what he knows is right, first by acknowledging the recent studies and reports against harsh sentencing and then by pushing the Justice Department to begin the hard work of creating fair sentences by giving federal judges more discretion in sentencing.
But why wait for Congress and the Sentencing Commission to change the Federal Sentencing Guidelines? Too often Federal Prosecutors are restrained by internal Justice Department rules and local Federal United States Attorneys who allow only one Defendant in a conspiracy to be granted a downward departure. 
Why not allow greater use of downward sentencing by filing 5K co-operation motions more freely so that Judges will have the discretion to give fair sentences? Tampa Bay Defense Attorneys often find that Middle District of Florida prosecutors in Tampa deny federal judges the opportunity to go under minimum mandatory sentences by strategically failing to file an appropriate motion for downward departure even where there has been adequate co-operation just to keep the sentence high.