FLORIDA BAR DEMANDS JUDGES NOT PROSECUTORS DETERMINE FATE OF JUVENILES TREATED AS ADULTS

Right now in Florida it's prosecutors rather than unbiased Judges who make important initial filing decisions on whether juvenile offenders will be treated as adults. Because of harsh Florida sentencing guideline ranges a charge filed against a child as if he were an adult makes it much more difficult for a Clearwater criminal defense attorney to save that child from being brutalized within Florida's horrific criminal justice system.

James Dean in a Juvenile Arrest

Finally, after over ten years of debate the Florida Bar will become an advocate for young people charged with Florida crime by demanding that judges rather than prosecutors make initial filing determinations for juveniles and that mandatory direct filing should be abolished. The bar committee unanimously made the following findings to change current direct filing law as it relates to juveniles charged as adults and found in Florida Statutes Section 985.557:

* Children with prior felonies should only be direct filed if the child is charged with homicide or the child is at least 16 years of age at the time of the offense, and has been charged with a felony crime involving violence against a person in which the offense was heinous and premeditated, and a written explanation as to why the child was direct filed has been filed with the court. 

* Children with prior felonies should only be direct filed if the child is at least 16 years of age at the time of the offense and has been charged with a felony crime of violence against a person. 

* Children should not be direct filed on misdemeanor offenses. 

* Children who have been direct filed should be entitled to a pre-adjudication reverse waiver hearing, i.e., a judicial review hearing as to whether the child should be prosecuted in adult court or transferred back to juvenile court (as most states have).

This change of law would have directly helped a sixteen year old boy I represented in Clearwater, Florida. He was charged as an adult facing a minimum mandatory prison sentence for using a shotgun to break into a car by shattering the side window not by firing but by striking it with the butt of the rifle. Because he'd been charged as an adult the Judge had limited ability to give a fair sentence even under the Youthful Offender Statute. 

The boy's fate hung in the hands of a Pinellas jury. At trial the jury accepted the argument that by using the shotgun as a tool rather than a shotgun the boy should not be found guilty. All of this unnecessary risk could have been avoided if only the Judge rather than the prosecutors could determine if a child should be treated as an adult.

How Florida treats young people charged with crime has been especially troubling. In Tampa Bay, Florida many parents were outraged to find that their children had been falsely listed in secret law enforcement gang membership lists which allowed local Largo police to groom these children as future criminals. Yet occasionally the crime itself becomes the punishment as happened recently when three young Floridians stoled and snorted cremation urn ashes believing it was cocaine.

Ideally both the defense and the state attorney's office would be allowed to present facts to the judge in a preliminary hearing at which the Judge would make an informed decision distanced from public opinion and politics. Clearly even if the Court makes an initial decision to direct file a juvenile as an adult providing the mechanism of a reverse waiver hearing allows the Judge to send the case back into the juvenile court should it be appropriate before actual sentencing so that the sentence is much more likely to be fair.

OFFICERS WHO LIE IN POLICE REPORTS OR UNDER OATH SHOULD BE DISCIPLINED & PROSECUTED FOR PERJURY

If a law enforcement officer deliberately gives false evidence under oath the officer should not only be disciplined within the force, but lose his job. Shouldn't that officer also face appropriate criminal charges? 

Officer Pinocchio smells Marijuana

Yet in Florida it's very rare to find prosecutors willing to charge police officers with perjury. The problem often originates in the first incident reports created by officers after arrests are made. 

Prosecutors see that officers make many factual errors from the very beginning of each case. After all, no one is perfect. Nor could one reasonably expect an exact rendition of facts. 

Yet Clearwater criminal defense attorneys often find that the initial incident reports are replete with factual errors that place those arrested by officers at a disadvantage while helping police make easy arrests. Too often police are willing to break or bend the law based on their mere suspicions of wrongdoing. And officers know that most folks whom they arrest do not have the means to fight the criminal system in a quest for justice.

Police first learn to bend the truth to become effective law enforcement officers. In fact, while I was a prosecutor it was clear that officers were routinely taught that there was no need to be truthful to defendants during investigations. Further, officers are told that if they find evidence of crime they should exploit the discovery by searching for further evidence. 

Here in Tampa Bay, Florida officers are taught that if they smell marijuana they can search a vehicle or even someone's home without a search warrant. Naturally every officer too lazy to get a proper warrant somehow smells marijuana even when it's not at the crime scene. No wonder the typical officers' nose is so very long, as for centuries they've been bred for smelling efficiency mixed with the wooden bearing of Pinocchio.

I had a client who was charged with trafficking in methamphetamine because the arresting officer searched the vehicle without a warrant after smelling marijuana. But miracle of miracles there was no marijuana in the car at all only a hell of a lot of methamphetamine. Was the Tampa officer lying? Here's his explanation:

The car was clearly being used for trafficking drugs. The distinct odor of marijuana I smelled came from the trunk area of the vehicle. It's clear that the trunk area must have been where the marijuana had been stored. 

The Defendant obviously had just made a delivery of the marijuana probably only minutes before I made the stop of the vehicle for a bad tag.

With a little prodding he'd have happily divined the quantity in each bag, the grade of marijuana and it's unique hallucinogenic affects. 

In another case which the state attorney's office no filed and dismissed, officers keen sense of smell helped them gain entry into a home where sure enough after turning the house inside and out they found that marijuana - one lone unlit joint in the bedroom far from the front door. Because the officers never lied under oath about the marijuana they were neither disciplined nor were they charged with perjury. The officers should also be disciplined.

It's not enough when cases that originate based on a lie are no filed and dismissed. What can be done to correct poor police conduct? What is the best remedy that would require reliable, honest police investigations?

Here's a solution that would bring justice to the criminal system. Every officer who writes a report must not only sign the report, but sign a sworn affidavit that everything in the report is accurate, honest and fair to the best of his knowledge. 

Law enforcement officers who are found to have violated the affidavit would be disciplined, fired and then charged with perjury. The threat of perjury charges based not only on sworn testimony under oath during jury trials, but also on investigations themselves as defined in police reports would go a long way toward solving the problem of dishonest law enforcement officers. The role of officers would be redefined as having the foremost duty of always abiding by the law.

INMATE SERVING TIME FOR MISDEMEANOR STRANGLED BY A SERIAL MURDERER IN UNSAFE FLORIDA JAIL

A notorious murderer conducts a brutal jailhouse toilet paper strangulation on another inmate with his goal being to avoid spending his life in jail for second degree murder charges by gaining access to death row. That's smart. The killer was in jail for murdering his girlfriend by strangulation in the same method used in the jailhouse killing. And the man he murdered? The victim was merely serving time on a reduced charged of misdemeanor trespass.

Pinellas Jail for a long night's sleep

Why would any jail in America place a prisoner serving time for trespass with a known murderer? If a primary goal of the Pinellas County Jail is safety then those accused or convcited of violent crimes would always be segregated from those accused or convicted of nonviolent crimes. The answer is the Pinellas County Sheriff's Department which controls the jail just doesn't give a damn about the inmates entrusted to the prison by local Judges.

As this Blog has noted the Pinellas County jail fails to protect and provide for the state and federal prisoners who are often housed there. The jail is not safe, the food is deplorable, the conditions are overcrowded. Based on these facts Florida Judges should be demanding that the conditions in Pinellas jail be corrected immediately.

Press reports note that even after the prisoner yelled out that he'd done another murder just like the one he was in for, it took seven minutes or so for officers to respond to the victim who might have been saved with faster action and that another man was severely injured recently during the process of transporting prisoners.

As Americans we have a right to expect that a primary priority of our prison system be safety. Yet Clearwater criminal defense attorneys in Florida know that ignoring prisoner rights is not unusual for the Tampa Bay criminal justice system; therefore one wonders how many more needless deaths will result due to the fundamental failure of Florida jails to provide for prisoner safety. 

THE BEST WAYS TO AVOID ARREST & PROSECUTION WHEN YOU'RE THE TARGET OF AN INVESTIGATION

Just as one leery Clearwater criminal defense attorney will look over his shoulder wondering if that police cruiser with the flashing lights is after him or (crossing my fingers) someone else, anyone who is the target of an aggressive law enforcement investigation will live in dread until the ordeal is over. Once that cruiser passes, I'll keep typing.

Cupid Creates Target Letter

Unlike being stopped for speeding, Federal and state investigators have no obligation to immediately notify someone that he or she is a target of an investigation. The more complex the alleged misconduct the more likely it will be that an investigation will be initiated without the knowledge of the target. As more evidence is accumulated the target may be confronted with information about the alleged crime or with an opportunity to make a statement of admission or denial of criminal conduct.

Law enforcement officers either have sufficient evidence to make an arrest or they don't. So why provide them with more evidence? Even a denial may help an investigation if the denial comes with an explanation that is implausible or factual incoherent. 

Sometimes officers may threaten to make an arrest if there is no cooperation, which is the best signal they could give that they haven't arrested you only because they want more evidence. The objective of a target must be to keep in mind that the process of an investigation is controlled by law enforcement. 

One client recently told me that she confessed to a Grand Theft charge in Tampa Bay only to 'get out of the room' after a long, intense interrogation in front of the people who employed her. One of the Detectives seeing her breaking point approaching kept saying louder and louder, "You want it to end? Then confess." And in an instant against her better judgement she confessed to the crime making it much more difficult to help her get the case dismissed or reduced.  

Federal investigators in Tampa Bay, Florida may generously notify a person that a possible arrest is imminent or grand jury testimony sought by sending what is known as The Target Letter. A Target Letter cajoles the recipient to find a lawyer and begin negotiations to diffuse the possibility of a pending Federal Grand Jury indictment.

Because there is little to be gained by speaking to investigators, if  you do decide to speak with them make sure you have a Tampa Bay criminal lawyer with you to defend your interests and help you avoid arrest. 

FINDING THE BEST WAYS TO AVOID GUIDELINE RANGES TO PROVIDE JUDGES BETTER SENTENCING OPTIONS

A recurring sentencing scenario that Clearwater criminal defense attorneys often experience is a frowning Judge who states on the record that regretfully the onerous sentencing guidelines call for a harsh sentence which must be imposed. At least the Sentencing Guidelines don't yet call for being sent to the old Village Stocks as punishment or Judges would do that as well. It's not enough that the United States Supreme Court has ruled that the Federal Sentencing Guidelines are merely advisory. 

Sentencing Options have changed.

If it's a Federal Judge he'll remind the lawyers that despite what the Supreme Court has stated, the Federal Sentencing Guidelines as they pertain to lengthy minimum mandatory sentences can only be pierced by substantial assistance based on co-operation or by the rarely invoked safety valve provision which only applies in drug cases and only if the Defendant is in the first criminal history category. 

Yet even when no minimum mandatory sentence is triggered under the Federal Sentencing Guidelines the Judge feels bound by them and will work from the guidelines toward a fair sentence.

In the state criminal justice system of Florida, the Judge will maintain that the Supreme Court's opinion on the Federal criminal justice system has no bearing on the state of Florida and at this point the Judge is correct. So the Judge will look to Florida scoresheets calculations that create a sentencing guideline range to determine an appropreate sentence.

Here are some of the best ways to present better sentencing options for a Judge that trump the sentencing guidelines.

First, the facts of the case need to be exploited and explained in such a way that the Court will differentiate the case from others that seem similar but aren't. This must be based on a fact based presentation and comparison of the case at hand in comparison to the typical case for which the criminal statute was clearly written. For example, intentionally spitting on an officer is a Felony Battery, but should the law apply with equal heft in punishment where the officer in question is shown to have egged the Defendant  on?

Second, the Defendant must be made to seem much more sympathetic than a typical Defendant. At the heart of this is finding the lynchpin that explains to the Judge why this event happened and why it will never happen again. One purpose of sentencing may be punishment, but another purpose of sentencing is rehabilitation. How does it help society to punish a Defendant if at sentencing the defense can establish a high likelihood that the Defendant will never commit another crime?

At issue in every sentencing case should be the question: is this a fair sentence and if not, why not? Showing a wide disparity of sentences within a given law's sentencing history may establish the inherent unfairness of a sentence. This is what happened in the abolition of the 100 to 1 mandatory minimum ratio of crack cocaine punishment to powder cocaine punishment in Federal Courts. But thousands of Americans suffered years of wasted prison time before the Courts, and finally Congress, were brave enough to make the needed change based on disparity of sentence.

Finding leverage for a fair sentence thru special personal characteristics of the Defendant is specified under the Federal Guidelines as giving the sentencing Judge discretion to go under the guidelines to provide for a fair sentence. This federal framework can also be very successful in state court system. 

As an example would be a case involving a million dollar fraud scheme for which a client who also happens to have an on-going, non-curable disease accepts responsibility for his criminal conduct by pleading guilty. The Sentencing Guidelines call for jail based on the amount of the taking in the scheme to defraud. Yet establishing to the Judge that the client is taking non-FDA approved drugs for his illness, forces the Judge to go under the guidelines and give no prison time whatsoever, because non-FDA approved drugs are not allowed in the Federal Prison System.

If someone you care about is concerned about how the Sentencing Guidelines will affect a Judge's sentencing decisions you need to find a Clearwater criminal lawyer who will find the best options that are available by making sure the Judge creates a sentence which gives the least amount of punishment while still protecting the community.

HOW A VIOLENT MOB BOSS GOT HIS TWO CONSECUTIVE LIFE TERM SENTENCES COMMUTED IN FEDERAL COURT

Although it's rare for a Federal Judge to commute any Federal sentence, yesterday a New York Federal Judge commuted two consecutive life sentences for Joseph Massino the first boss of any notorious crime family to benefit from substantial assistance.  Based on Federal Rule 5k at the initial sentencing and Rule 35 within a year of sentencing, prosecutors may recommend vast downward departures from the harsh federal sentencing guidelines when it suits their purpose.

FBI photo of Gambino funeral.

What doesn't surprise a Tampa Bay Federal defense lawyer is that the Judge commuted the sentence only at the urging of Federal prosecutors who detailed the extensive cooperation which included information on hundreds of Bonanno family members and associates. 

It's likely he neither implicated me nor members of my family, nor you and yours; however, it's always a possibility.

Press reports note that the Judge was swayed by the extent of his cooperation as well as the clear future threat of harm to be endured by Mr. Massino, but is Mister how I should refer to him - as he'll be out of jail in just sixty days - due deference tempered by abject fear tilts to the honorific Sir, rather than mere Mister, as quickly turning my head searching right then left for any suspicious, furtive movements, ducking only occasionally - I try to type as rain falls before silent darkness approaches. 

Making fun isn't the best idea in these situations. God, I pray, don't let that stoic guy read this. Has he, one wonders, actually reformed or will there be more bloodletting?

Perhaps the Judge and Federal prosecutors would rather not think about that. Would any of them want to live in the same neighborhood of this, um, errrrr... Gentleman, when he takes on his new identity in Tampa Bay, Florida, with a less exciting but equally lucrative new career provided by our Government?

The truth about Federal cooperation is ugly. The more you know and the better you're able to testify against those below you within the criminal chain of command the more time off you get. So those who are involved in the most illegal activity later gain the most benefit. In it's own warped way our Federal criminal justice system  grants incentives for those who would enjoy a life of crime with limited risk by granting the most benefits for those who rise high in their criminal conspiracy.

Many Federal defendants plea guilty because they believe the Federal criminal justice system is rigged and a recent study supports that notion in that 96% of Americans who are indicted by Federal Grand Juries plead guilty rather than risk going to trial. Now we know that even Federal plea agreements are rigged.

The Judges have only the limited amount of discretion which prosecutors provide them by filing substantial assistance motions. The prosecutors don't want to waste filing the motions on the bit players. So Clearwater criminal defense attorneys find that it's the lower rung folks, those who did the least, who must face the harsh Federal Sentencing Guidelines, spending lifetimes in prison for nonviolent crimes such as drug offenses with minimum mandatory sentences from which Federal Judges have limited discretion.