FIVE EFFECTIVE WAYS TO PERSUADE SENTENCING JUDGES TO APPLY LENIENT PUNISHMENTS EVEN IF FAIRNESS SEEMS TO DEMAND A HARSH PENALTY

As Americans we often may lay claim to the notion that we want fairness in our criminal justice system. In truth what we want is consistent applications of our laws when applied to others but something less consistent when applied to us or the people we care about. Only when the ugly head of the law bites us do we fully understand that in the application of justice we really require some wiggle room. 

For Tampa Bay criminal defense lawyers justice should be fair except when a client faces a fair result which will also ruin his life, then what? Here are five effective arguments to leverage a judge's discretion to make sentencing findings running against the grain of harsh laws dictating excessive punishment while finding the best possible sentence.

First, look to the law's intended consequences to show that they are irrational when applied broadly. Even the best written laws should be narrowly construed so as not to ensnare those who may never have intended to do wrong at least in the broadest definition of the crime. 

Second, show that the law has unintended consequences that could result in unduly harsh sentencing results. Establish that the facts and circumstances of a case are unique outliers in the law's true intent.

Third, follow up the argument on the law's intended and unintended consequences by finding and presenting evidence of the legislative history of the law. In Florida the legislative history often includes information from committee hearings, debates, votes and amendments made during the legislative process. This evidence can establish that the law maker's intent was not to target the actions under consideration with significant punishment.

Fourth, establish that the harsh punishment for a broken law was not readily foreseeable by the average citizen. This is especially easy when the sentencing judge on the record expresses some surprise when told by the prosecutor where the Florida guideline scoresheet range of prison is for a defendant.

When Defendants were first being sentenced to the initial set of harsh minimum mandatory sentences for drugs some twenty years ago, the best judges were reluctant to sentence people to that much time. They looked for every possible avenue to avoid the law. As a prosecutor at the time I even observed a judge grant a new trial to force prosecutors and defense lawyers to come up with a non-minimum mandatory sentence. 

But as the sentences became more common habit displaced sympathy. With every additional minimum mandatory sentence issued, it became that much more difficult for judges to ignore the heft of the law for others in a misplaced notion that simple fairness dictated heartless sentences for everyone. No, simple fairness means that every judge best honors the law by finding the least possible punishment, despite sentencing guidelines, that provides deterrence and protects the public based on the facts of each case with the unique personal qualities of every defendant. 

And that leads to the the fifth argument which is to appeal to the sentencing judge's sense of wanting to do what is right, which is the most effective argument of all.

FLORIDA DUI'S TO BE DISMISSED IN AN OFFICER'S FIRING IN A TAMPA HONEY TRAP SET-UP SCANDAL

A number of DUI's will be dismissed in Hillsborough County, Florida due to fallout from the former head of the Tampa Police Department DUI division who was fired for his involvement in a notorious Honey Trap that resulted in a lawyer's arrest. Every pending case involving the former DUI division head where he was listed by the State Attorney's Office as a possible trial witness will be screened for possible dismissal, while as many as ten DUI cases, some with blood alcohol level evidence of over double the legal limit have already been dismissed. But just looking at pending cases is not nearly enough, even cases in which the Defendant has plead guilty to DUI or lesser charges should be re-examined with Defendants given an opportunity to reopen their cases.

Badge of Integrity?

Federal and state investigators are still looking at the actions of everyone involved in the drama of this scandal to determine what charges, if any, should be filed. Yet you, my reader, sitting there drinking your wine by the fireplace or possibly asleep within the relative safety of your home during the original scandal, you need not fear these allegations because they are unlikely to cause the Feds to come knocking at your door, nor even mine, one hopes.

A preliminary investigation by the Pinellas County State Attorney's Office determined that the lawyer who was arrested for a DUI incident to a Honey Trap Set-Up scandal would not be charged. That investigation also revealed that the activities of the Tampa Police Department brought the DUI unit's integrity into question with the likelihood of  destruction of evidence to cover up the role of at least one Hillsborough officer involved in the scandal.

The Pinellas prosecutors should be commended for making the courageous choice of dropping charges against the lawyer, but the prosecutors in Tampa have not gone far enough in dismissing other cases tainted by this scandal.

The integrity of the Florida justice system demands that every case, even those in which the Defendant has already plead guilty, involving the former Tampa Police DUI division head should be re-examined. On motion of the State Attorney's Office in Hillsborough County, Defendants should be allowed to withdraw Guilty pleas based on the failure of the Tampa Police Department to insure that DUI cases were handled in a fair and impartial manner. 

THE FIVE BEST EFFECTIVE WAYS TO HAVE CRIMINAL CHARGES DISMISSED OR REDUCED IN FLORIDA

Criminal lawyers are often asked a simple question that has a complex answer: what are the best ways to have a criminal case dismissed? 

Here are the best five ways to achieve a dismissal of criminal charges in Florida:

1. Persuading prosecutors not to file charges.
2. Persuading the Judge that the charges are insufficient legally.
3  Persuading the Judge that essential evidence should be suppressed.
4. Completing the Pretrial Intervention Program or successfully completing specific crime programs such as those run for Drug Intervention or Domestic Violence.
5. Persuading a Jury in trial that the Defendant is Not Guilty.

In Tampa Bay, Florida effective defense lawyers will first do everything possible to persuade prosecutors not to file a criminal case even when there's been an arrest. Since prosecutors will later have to either try the case or persuade the Defendant to plead guilty, it's vitally important for the defense to initiate an effective early initial conversation with prosecutors and their supervisors to secure a decision not to file the case by establishing problems with evidence, witnesses or legal reasoning.

Second, a Motion to Dismiss the case should be granted by the Judge in a case where it can be established that the undisputed facts do not constitute a crime. If the prosecutor believes that the facts support the filed charge, a traverse can be filed which will block the Motion to Dismiss. The Judge may set a hearing to determine what the essential facts actual are to ascertain whether the facts should lead to the case being dismissed. It's also possible for cases to be dismissed for other procedural reasons such as far too much time between the time of indictment and arrest.

Third, a Motion to Suppress evidence may be filed to literally throw out or suppress unlawfully obtained or seized evidence which may result in the dismissal of the charges if the prosecution finds it can no longer successfully move forward with the case. For example, if a search was conducted without permission and without probable cause the Judge may suppress evidence. Though Motions to Suppress are rarely granted, it is often devastating to the prosecution when they are. Further, the mere filing of the Motion may bring benefits by prompting further factual discovery and divergent witness testimony.

Fourth, a defendant with no criminal record charged with a nonviolent crime may under certain conditions to enter a Pretrial Intervention Program upon the completion of which the case will be dismissed. The program entails a period of something similar to probation for six months to a year depending on whether the charge was a misdemeanor or felony. Although in Florida this program is under the supervision of the States Attorney's Office, the prosecutors will ask the presiding Judge to dismiss criminal charges against those who successfully complete the program. There are also similar special programs for select crimes such as drug crimes or domestic battery charges as well.

Finally, to end a criminal case with success when all other options are unavailable, a Clearwater criminal defense attorney must be capable of establishing to a jury that no crime was committed by being willing to go to trial.

FEDERAL SENTENCING COMMISSION PROVIDES USEFUL TRAINING MATERIAL FOR DEFENSE LAWYERS & CLIENTS

The United States Sentencing Commission webpage has recently been updated with fascinating information for criminal defense attorneys as well as their federal clients. The information is divided into training material intended for defense lawyers, prosecutors and judges as well as a spotlight section on changes to the law and possible future changes to sentencing. 


The spotlight section highlights new information on the recommended expanded safety valve provisions, federal minimum mandatory sentencing and a useful quick guide on minimum mandatory sentencing categories, triggers and exceptions useful in keeping the law handy for practitioners. To find the information just go to the webpage above, look for "spotlight" and keep clicking till your fingers hurt.

Besides the quick spotlight information, the webpage offers an extraordinary amount of new training material for lawyers, prosecutors and judges. Yet this information can be accessed by anyone, so the webpage should be helpful in directing clients toward relevant knowledge about federal sentencing especially if in the difficult position of being a possible target of federal agents, a person of interest in to a federal grand jury or party to any federal investigation. 

To gain access to this wealth of material simply go to the webpage above, click on "Education and Training" then click on "Guidelines Education Materials" and look under "Advanced Training Materials." Here's a summary of what you'll find:

 Loss Primer, March 2013, Victim Primer, March 2013, Drug Primer, March, 2013, Firearm Primer, March, 2013, Immigrations Primer, April, 2013, Sex Offense Primer, March, 2013, Sex offense primer & Failure to register cases, March, 2013, Aggravating and Mitigating Role Adjustments, March, 2013, Multiple Counts Checklist, Criminal History Primer, April, 2013, Departure and Variance, Primer, June, 2013

Also, if you have a client who has served in the military as is often the case in Tampa Bay, Florida use the new information listed on the webpage under the Military Service Departure under 5H1.11 which provides effective arguments in sentencing mitigation for a military veteran. The sentencing departure does not require that your client served in combat and provides a summary of the unique history in America criminal justice of recognizing military service at sentencing which could be useful arguments even in nonfederal Florida cases even where state law does not provide for leniency.

It's often difficult in federal cases for clients to come to grips with the overwhelming power of the federal government, the federal justice system and the hazards of federal sentencing. The sentencing information in the webpage may prove even more useful to clients than their criminal defense attorneys when seeking the latest knowledge about harsh Federal Sentencing Guidelines. 

FEDERAL JAIL FOR BORROWERS AS CHASE BANK PAYS BILLIONS TO BUY OUT OF CRIMINAL PROSECUTION

My favorite Banker

While the U.S. Attorney General negotiates billions of dollars in a  monetary settlement with J.P. Morgan Bank that will require the bank to acknowledge unlawful mortgage-backed security fraud, one wonders how bankers have avoided criminal responsibility and jail time.


According to press reports the focus of concern for the beleaguered  CEO of J.P. Morgan Chase Bank in his negotiations with our federal government is fear of criminal liability:

A major sticking point in the talks between J.P. Morgan and Justice has been how to resolve a criminal probe of the bank's conduct.
Within the Justice Department, some officials believe they have built a viable criminal case to bring against J.P. Morgan for some mortgage-backed securities issued before the financial crisis, according to people familiar with the discussions. Investigators have been examining whether the bank misled investors about the nature of the underlying mortgages backing those securities, according to people familiar with the case.

If American banks and wealthy bankers who control them can buy their way out of criminal prosecutions, shouldn't ordinary Americans be allowed to do the same? After all wasn't it the greed of the bankers with real estate investors not to mention average Americans over their heads in housing debt that caused the financial meltdown. Yet the bankers got bonuses while the borrowers got jail. Many investors and borrowers of who failed to pay signature mortgage loans received grand jury federal mortgage fraud indictments with plenty of jail time once they were convicted. But of the bankers who profited the most not one has been indicted nor punished. 

The banks and their leaders should be criminally prosecuted if they committed crimes. What the bankers understandably fear is that under the Federal Sentencing Guidelines systemic mortgage fraud like any theft would be punished based on the dollar amount involved resulting in many years of Federal imprisonment for any banker convicted. As the dollar amount attributed to the offenses would be astronomical so too would be the jail time though defense lawyers would try to find the best ways to avoid guideline ranges. 

Banks and bankers should not be allowed to avoid criminal prosecution by buying off the government of the United States. If law has any meaning in America it must apply equally to every person and to every business entity no matter how powerful. If the bankers have committed federal crime, prosecute them, and if they need a federal criminal defense attorney tell them to give me a call.

THE FIVE ADVANTAGES IN HIRING A CRIMINAL DEFENSE LAWYER EARLY IN ANY ARREST OR INVESTIGATION

Cases that could be quickly disposed of by persuading prosecutors to no file the charges may become much more difficult to defend if a Clearwater criminal defense attorney is not consulted soon enough. In criminal cases it's always vitally important to have an advocate on your side as soon as possible. Your lawyer will demand discovery, conduct an intense investigation and secure any evidence that undermines the investigation or arrest.

Ready for a Police Chase?

When avoiding an arrest or investigation of crime it's important to note that law enforcement officers do not have to tell you that you are the target of their investigation and that deception is considered an effective police tool so that officers do not always have to tell the truth when questioning suspects about a crime. Yet it's during the initial investigations of officers and prosecutors that the best criminal defense lawyers lay the groundwork for cases to never proceed any further than a mere investigation.

Here are the best reasons to consult a defense lawyer as soon as you are being investigated and before charges are filed by prosecutors.

1.  A defense lawyer will make certain that no evidence is destroyed, misplaced or forgotten by prosecutors. Prosecutors in Tampa Bay, Florida conduct their own investigation of the facts and circumstances of criminal cases before making felony or misdemeanor filing decisions even if police have made an arrest. In fact, under Florida law, for prosecutors to file felony charges against a defendant they must conduct an investigation which typically includes placing police officers or other witnesses under oath. 
2. This short window of time before charges are filed by prosecutors is an opportunity for the defense to present prosecutors with the best reasons why the case should be no filed. Because no filing decision has yet been made, prosecutors are open to at least listening to other interpretations of the facts and circumstances of the case. A number of years ago while I was a prosecutor in Clearwater, Florida, I appreciated knowing that the case was weak before rather than after committing the resources, time and commitment to prosecuting a case. Sometimes evidence that may seem reliable to a prosector proves to be unreliable when facts establish that the witness is mistaken. For example, unreliable eye witness testimony has often been shown to weigh too heavily with prosecutors and judges making a mockery of justice and fairness in many criminal cases in the United States.
3. Once the prosecution files a criminal charge against a defendant the apparatus of the Florida criminal justice system becomes committed to a successful outcome of either a guilty plea or guilty verdict at trial in the case. This momentum toward a result of guilt is difficult for the office to resist because prosecutors will not want to admit that they botched their initial investigation. Therefore, waiting to present evidence at a later time than the initial investigation will often result in the prosecution 'doubling down' by adding addition criminal charges. Further, prosecutors will do their best to win the case by demanding that law enforcement officers conduct further investigations with a view of supporting the failing case.
4. Defense counsel should also be consulted before any statements are given to law enforcement to determine if a statement from a Defendant is apt to be useful in a future prosecution. Often law enforcement officers gather as many statements as possible from a defendant in hopes of finding inconsistencies or admissions of misconduct. In Tampa Bay, Florida law enforcement officers rarely record their conversations with Defendants making the law enforcement officers the only reliable witnesses as to what was actually said. Therefore confessions are often very damaging even thought they have often been found to be an unreliable indication of actual guilt.

As you can see it's essential that a defendant seek immediate help from an advocate who understands the criminal justice system, law enforcement as well as how prosecutors conduct initial investigations in criminal cases in Tampa Bay, Florida.