FIVE IMPORTANT RULES TO REMEMBER WHEN BEING INVESTIGATED FOR COMMITTING ANY ALLEGED CRIME

What should you do if you have reason to believe you’re being investigated for committing a crime? In Tampa Bay, Florida law enforcement officers often have many open files under consideration at any one time. How do officers determine which cases to investigate first? Criminal cases are investigated based on the severity of the crime, the nature of the crime and the time when the alleged crime occurred. 

Crimes involving violence such as domestic battery, aggravated battery, aggravated assault or murder are likely to result in an immediate investigation, whereas crimes involving dishonesty such as grand theft, petty theft or fraud are likely to be investigated more leisurely. The nature of the crime and the apparent threat to the well being of the community dictate the speed of most investigations.

Clearly it’s within the very nature of some alleged crimes to attract a law enforcement investigation even as the alleged crime takes place. This is true of any crime that occurs in front of an officer such as, fleeing and eluding, DUI or driving while license suspended or revoked. 

Yet no matter what the time frame is for an investigation to be initiated, the same general rules apply as to how to deal with any police investigation of alleged misconduct. Here are five basic rules in dealing with a crime investigation.

1. If an officer asks questions about a crime that give the impression you’re being investigated for that crime, then the general rule is to not answer. You’re not going to simply be able to talk your way out of suspicion.
2. Further, always tell the investigator that you want to speak to your lawyer before you’ll agree to talk. While waiting for the lawyer you’ll have time to collect your thoughts, to plan what you may want to say in the future when the lawyer arrives and to be certain that whatever you may decide to say is what you mean to say. But before speaking to officers, talk to your lawyer, then make an informed decision as to whether you really want to risk cooperating by obeying police commands or requests.
3. Do not agree to any kind of search of your home, office, car or bags unless the investigating officer has a signed search warrant. Often officers will give you the false impression that you may be allowed to go free even if contraband or criminal evidence is found. But it’s important to remember that officers never have an obligation to be honest as to whether an arrest will be made and that most officer’s who fail to make an arrest when evidence is seized may be disciplined. Once consent  is given to a search, the investigator will use that consent to search for unlawful conduct so never give police consent to search in Florida. 
4. Remember that Detectives are looking for clues to an alleged crime not a new best friend. It’s always beneficial to be as friendly, polite, respectful and as nonthreatening as possible, though there’s little to be gained by trying to be charming or well liked. Don’t be seduced into believing a Detective likes you enough to help you.
5. It’s well known in the criminal justice system that the greatest risk to officer safety comes not during investigations of murders, robberies or burglaries, but from the simple investigations involving domestic battery cases when good people may be seen at their worst. The one thing you can control during this process is yourself. After the law enforcement officer meets you he’ll later note your demeanor in his written report make certain that your interactions with the officer are consistent with what you want to be written about you in the report.

If you believe that you’re under investigation for any crime, give me a call and I’ll do my best to help you make the best possible decisions for your future so that you can go on living and stop worrying.

HOW TUNNEL VISION PERSUADES PROSECUTORS TO REJECT EVIDENCE OF INNOCENCE IN CRIMINAL CASES

Under American law prosecutors have a unique responsibility to not only enforce the law but to ensure that justice is done. Yet time after time even when confronted with exonerating DNA evidence overzealous  prosecutors fight post conviction relief. 

In a book by two psychologists called Mistakes Were Made (but not by me!): why we justify foolish beliefs, bad decisions and hurtful acts, the authors detail how and why prosecutors insist on guilt even when they find overwhelming evidence of innocence. Deceptive blinders, tunnel vision and self justification create a situation where a prosecutor believing himself to be good couldn't possibly be the kind of person who sends the wrong man to prison and ignores all evidence that contradicts that assessment. 

Law professors also delved into the problem in an essay called The Multiple Dimensions of Tunnel Vision in Criminal Cases noting that over 170 people convicted of heinous crimes have been proven innocent by DNA evidence since 1990, but that hundreds more have been exonerated over that time period with other evidence establishing that the criminal justice system fails to accurately determine guilt. Even in preliminary stages of criminal cases rather than merely accumulating only the evidence required to convict, prosecutors should also be looking at contradictory evidence of innocence. 

The American Bar Association sets forth the obligations for any prosecutor who learns of "new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted." The prosecutor shall:

(1) promptly disclose that evidence to an appropriate court or authority, and
(2) if the conviction was obtained in the prosecutor’s jurisdiction,
(i) promptly disclose that evidence to the defendant unless a court authorizes delay, and
(ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.
(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.

The requirements for prosecutors are clear. Seek justice promptly especially if the initial conviction was in error. The solution to the psychological problem of prosecutor's tunnel vision and of not wanting to admit mistakes is to punish the overzealous prosecutors. Those prosecutors who fail in their obligations to seek justice promptly should not be fired, but should also be stripped of their law licenses.

Too often prosecutors acting in bad faith betray the criminal justice system by misusing their authority by bullying innocent defendants into changing pleas with threats and additional criminal charges or by ignoring important evidence of innocence for those already falsely convicted. 

NEW U.S. FOCUS ON STEROID ABUSE AS FEDERAL DRUG ARRESTS SURGE FOR STEROID USE, SALE OR POSSESSION

Could an unintended consequence of Attorney General Holder's memorandum for more lenient marijuana enforcement be stricter enforcement of federal steroid laws by federal and state law enforcement? 

Since as many as six million Americans use steroids, pushing for more arrests of steroid users could be catastrophic for unsuspecting users many of whom have no idea that the Government classifies steroids with hard drugs such as heroin, cocaine and LSD with equivalent harsh federal drug trafficking sentencing for relatively small quantities.


Not only do Federal Drug Enforcement Agents appear to be focusing on making more arrests for steroid users, but in the Middle District of Florida located in Tampa Bay numerous arrests are being made by local and state police officers which are then being pursued in federal court rather than in state court. Pushing the cases into federal court garners the risk of much more prison time if a Defendant is convicted. With steroids the actual weight of the drug is not as important as the number of 'units' one is accused of possessing, this can make for unfair sentencing results when the drugs are diluted. Therefore, it's important to take urgent action if one is arrested for steroid possession or for steroid trafficking.

Reducing the damage of a federal arrest may be alleviated if the Government agrees to a timely Waiver of Indictment which allows a federal case to be filed with an information rather than by a grand jury indictment. When the Government files an information limiting the scope of the Defendant's knowledge or the sheer amount of the steroids the Defendant may have sold or possessed, this can be useful in avoiding minimum mandatory sentences under the trafficking laws especially in cases where steroids have been found incident to a search warrant, but law enforcement has evidence of long term use, buys or sales of steroids. 

Often an early agreement on the filing of an information rather than an indictment from a grand jury has an addition benefit in that the Government also binds itself to an additional agreement that Government won't object to allow the Defendant to be free on a bond. This is useful in achieving a successful Federal bond, bail and detention strategy. After every Federal arrest a Federal Magistrate determines whether a Defendant should be free on bond. Factors the Judge looks to include the Defendant's ties to the community and whether the Defendant is a threat to the community. Unfortunately under federal law when a grand jury indicts a person for trafficking in drugs, the presumption is that the Defendant is a threat to the community and therefore must remain incarcerated until the case is resolved.

So there's much more likelihood that the Federal Magistrate will agree to a bond when an agreement has reached with prosecutors that allows for a Waiver of Indictment and the avoidance of a trafficking charge. The bond gives security to the court that the Defendant can remain free and working to support his family while the case moves forward. In some cases the Magistrate may even allow a signature bond, which is one without direct security other than the signature of the Defendant promising to pay in the future whatever amount the Federal Magistrate believes will prompt the Defendant to attend each court hearing.

TAMPA BAY PRISONS STILL FAIL TO PROVIDE ADEQUATE MEDICAL CARE, SAFETY, FOOD & CLOTHES FOR INMATES

When the Pinellas County Sheriff recently hired a company to take over the medical needs of the Clearwater jail, he chose the same company that runs the medical staff of the Hillsborough County Jail. This might seem reasonable but for the fact that under that company's medical care an inmate suffering a stroke was misdiagnosed as drunk and died an excruciating death. One thing is certain, it's not about the quality of medical care to be provided, it's about saving money.

Clearly the health, safety and rehabilitation of inmates in the Florida prison system is not the first priority with local decision makers. In fact Tampa Bay jails have a notorious reputation for not providing and protecting for prisoners. 

Anyone arrested has the right to adequate care and even those convicted must be treated in such a way that the punishment is not cruel. The Pinellas Jail often houses federal prisoners. It's one way that the over-crowded jail makes money. Other ways include selling music, clothes, phone time and food to inmates at extreme markups. 

As a Tampa Bay federal defense attorney I've heard many complaints from federal clients about the terrible food at the jail, which often needs to be supplemented with food bought at extraordinary high prices in the prison canteen. The failure to provide proper food, soap, shampoo and even underwear to inmates unless they buy the items makes life in the jail more difficult not only for those unfortunate inmates who can't afford these 'luxuries' but for the prison guards who find themselves degraded when their livelihoods subject others to inhumane conditions. 

Yet it's one thing to be cheap, much worse to risk lives by providing improper medical care in Florida jails. Press reports note that the Tampa family of the man who died of the misdiagnosed stroke received a significant financial settlement of as much as $700,000. Wouldn't it have been far wiser, cheaper and more effective in the long term, not to mention more humane, to have simply spent that money toward making our prisons safe, clean and healthy?

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.