HOW ONE FLORIDA JUDGE USES A CARROT CAKE & STICK APPROACH TO HELP DEFENDANTS STOP ABUSING DRUGS

Lately criminal law has been swamped with specialized courts to handle defendant's with special needs. It began with juvenile courts, then moved on to drug courts, where one Florida judge will even bake cakes for Defendants to help them stop abusing drugs.

Now in Tampa Bay and Florida on an experimental basis one can find mental health courts, domestic violence courts, combat veterans courts and my favorite - watching a few boisterous judges and lawyers firing salvos while ambling around tennis courts. 

Let Defendant's Eat Cake

The idea behind these courts is commendable. Find the root cause of the criminal behavior. Push the defendant to accept responsibility for the criminal behavior by offering a plea agreement that is too good to pass up. Often a plea bargain may not include much, if any, time in prison. Instead there is a carrot or to be more exact a carrot cake and stick approach. Help if offered thru counseling, therapy, medication during long years of probation with frequent, expected and unfortunate probation violations each of which forces the defendant to remember how close prison may be.

The key is having an effective, sympathetic judge who really cares about the lives of those before her and who aims to make a difference in those lives not only by punishment by helping the defendants to make actual changes in their lives. A fine example of how this should work can be found in the Pinellas Drug Court courtroom of Judge Dee Ana Farnell who celebrates with cake, cookies and ice cream she brings for defendants and their families when some of her defendants are finally taken off probation. Remarkable. It's exactly the kind of forward thinking that the criminal court system needs.

Yet, I'm not inclined to believe that specialized courts are the complete answer. Rather than merely categorize and subdivide particular groups and subgroups of defendants, why not try to help each and every one of them? Even those, perhaps especially those who have committed a violent crime? Wouldn't it be worth while to ferret out the root causes of each criminal act. And where the causes are intractable, then give prison. Where the problems are solvable, then solve them.

What Judge Farnell is doing in drug court, is what every judge should be aspiring to do at every level. Temper punishment with help. Find the root of the criminal conduct. Then send the defendant to prison if you must for those defendants who can not or will not be helped. But for those who can be helped find brave judges who aren't afraid to show mercy, temperance, compassion, understanding; judges who are ready to bake cakes for defendants in celebration of the best results.

WHY EVERY JUDGE SHOULD SPEND SOME QUALITY TIME IN JAIL

It's an unfortunate aspect of the American Criminal Justice System that the vast majority of judges have spent no time in jail. A little jail would do most of them good. Not only would some time in the slammer help them understand what incarceration really entails, it would add some perspective if not empathy to a sentencing process that is often inhumane and robotic. 

Even Judge Judy needs Jail

In fact why stop with just the judges? Prosecutors and Defense lawyers could share a cell, eat beans together and pay seventeen dollars for a two minute call home, just like their targets and clients must do when imprisoned. It's not unusual for prosecutors and judges to forget the hopeless reality of prison by simply basing every Florida sentencing decision on scoresheet calculations and sentencing guidelines. 


Because if they did think about it, if the tortured lives and wasted time of each prison day the defendant would serve had to be counted and assessed in some knowing way, the prisons would be emptied except for the most violent criminals. How does it help anyone to have nonviolent people wasting time in jail? 

Recently a family from my home town sought advice about a federal habeas corpus petition to rectify the results of on an older grand theft case in which the defendant was sentenced to twenty-five years in prison. Twenty-five years for a grand theft! He'd been offered a mere two years of jail before his trial. 

In Florida judges are forbidden to punish someone for exercising their constitutional right of going to a jury trial, but a judge may get around that by stating that information gained at the trial changed one's mind. One wonders if this judge would benefit from spending some quality time in jail himself. In fact why not have the judge spend say one hour for every year for which he sentences someone.

Wouldn't the victims be better off if the Defendant was earning money to pay them back even if he was just flipping hamburgers? Wouldn't society be better off if he was on probation? Wouldn't his children be better off with a father at home? It's unfathomable to me that the American Criminal Justice System is often just in the process but not in the results. Yet the truth is that the habeas corpus action was unlikely to meet with success unless some aspect of the process could be shown to have been a failure despite the obvious failed result of that process.

But let's brighten your day by thinking of others we should place in our empathy jail. Why not send every police officer to jail too?  Starting with the Sheriff,  all the way down. They'd all benefit from having a fuller understanding of how brutal the prison system actually is in Tampa Bay, Florida. Would the Pinellas County Jail's recurring problems with bad food, lack of safety and failures by the medical staff be affected if those in control knew that they would be spending time there? Would the Judges allow it to continue? Would the Prosecutors? Would the Defense lawyers?

NEW MENTAL HEALTH COURTS WILL TREAT MENTAL ILLNESS AS A DISEASE RATHER THAN A CRIME

Prisons in the United States are disproportionately filled with people suffering from mental illneess whom the criminal justice system treats as criminals. One exasperated Florida judge named Steve Leifman even declared that he'd unwittingly bcome the gatekeeper of Florida's largest pschiatric facility.

But Miami Judge Leifman is helping solve the problem by creating special mental health courts that will stop treating mental illness as a crime. 

Everyone in the criminal justice system is aware of the problem. Yet few have had the courage to do anything about it. Here's an example from years ago when I was a prosector. An elderly lady took a pair of sunglasses from a pharmacy without paying. After her arrest for theft I was assigned to be her prosector. At her first pretrial her lawyer gave me hundreds of pages of documents with her medical and psychiatric reports detailing her dementia with a firm diagnosis of alzheimers. But this was not enough to set the case aside based on her mental comptency.

The Pinellas State Attorney at the time, James Russell, as moribund and lazy as a poisoned mouse, did what elected officials often do. He passed the buck, yet the judge didn't want to simply dismiss the case either. Ultimately no one in the legal system had the courage to simply do the right thing and dismiss the case, which like a long gray winter dragged on until the lady died. 

It's refreshing to find on the horizon a courageus fair Miami judge who wants to help the twenty percent of Floridians with mental illness who are not in a posistion to help themselves. 

Is there a similar judge in Tampa Bay, Florida willing to stand up with Judge Leifman to make our criminal justice system more effective?

WHAT EIGHT FACTORS SHOULD FLORIDA PROSECUTORS USE IN FILING SEXUAL ASSAULT CHARGES IN FLORIDA?

In Florida prosecutors may elect to file charges against a defendant even when the victim does not want to prosecute. This is true because Florida views itself as a victim whenever a crime has been committed. But in a typical criminal case the expectation is that the state of Florida will give great weight to a victim's desire to prosecute or to not prosecute.

Sometimes the weight given to a victim's wishes can be abused by the victim, representatives of the victim or the victim's family when a decision to prosecute is needlessly delayed or retracted. This is a recurring problem in allegations of sexual assault, sexual battery, rape and domestic violence. During the course of the investigation of a defendant the victim will be asked if he or she wants to purse a prosecution, because once an arrest is made and the charges are filed by the state attorney's office the lives of the defendant and victim are forever changed.

In many of these cases there may exist little evidence other than the testimony of the victim. In these cases it's important for prosecutors to take into account the following factors before filing a criminal charge against a defendant:

1. To gauge the willingness of the victim to testify.
2. To verify the honesty of the victim's statements made at the time of the report of the alleged assault. Is the statements consistent within itself? For example, did the victim give correct information about the height, weight and hair of the defendant and if not, why not?
3. To determine if the victim has made any other statements which are inconsistent. 
4. To find if social media or email has information which contradicts the victim's assertions.
5. To compare and contrast any physical evidence such as DNA with any other evidence of unlawful force such as the defendant's skin under the fingernails of the victim.
6. To find any accounts of other witnesses who may have observed the victim's demeanor before or after the alleged assault. Was the victim laughing, crying, yelling, happy or sad?
7. To review the results of any toxicology reports to determine if the victim was impaired. Was the victim under the influence of drugs or alcohol to the extent that the victim could no longer make informed decisions?
8. To establish that the victim has no mercenary nor financial interest in the outcome of the case. For example, in a recent case involving an FSU football player the alleged victim appears to be represented by a personal injury lawyer who police claim placed herself between the police investigation and the victim, which if true is one of the oddest things as a former prosecutor and as a defense lawyer I've ever observed. 

Effective law enforcement officers and prosecutors understand that the emotional and physical trauma suffered by many victims will not be healed with a prosecution. Further, they understand that filing a case if the victim is unreliable will only result in a not guilty verdict and ruined lives for not only the defendant but also for the victim.

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.