U. S. District Judge Steven Merryday may not be included in future literary anthologies, but his recent opinion denying a defense motion to continue in a Tampa capital Murder Trial written as a homage to Hemingway’s manly memory surely ranks as the sort of biting legal bon mot molotov cocktail that your favorite Clearwater Criminal Defense Attorney enjoys seeing thrown into the legal battlefield now and then just to spice things up, especially when I’m not the object of the Court’s ire.
The Judge’s order as noted in Above the Law quotes the attorney’s request for a continuance for the following reason: “Undersigned counsel, a perennial contestant in the Ernest Hemingway Look-alike Contest, is scheduled to appear as a semi-finalist at Sloppy Joe’s Bar in Key West, Florida.”
The Court then cuts to the meat of the denial remarking on Hemingway’s courage, Hemingway’s uncompromising values. Here is the Judge’s order:
|This lawyer won’t be in Key West
Between a murder-for-hire trial and an annual look-alike contest, surely Hemingway, a perfervid admirer of “grace under pressure,” would choose the trial. At his most robust, Hemingway exemplified the intrepid defense lawyer.
The Court then notes that the following quote is a description of Hemingway by Dorothy Parker in The New Yorker (the best written magazine in the English language) Nov. 30, 1929.
“He works like hell, and through it. . . . He has the most profound bravery. . . . And he has never once compromised. He has never turned off on an easier path than the one he staked himself. It takes courage.”
Perhaps a lawyer who evokes Hemingway can resist relaxing frolic in favor of solemn duty. Best of luck to counsel in next year’s contest.
The Florida Bar has released the first draft of a proposed ethics opinion on the “ethical propriety of offering or advising a criminal defendant to accept a plea offer in which the criminal defendant waives past or future ineffective assistance of counsel and prosecutorial misconduct,” which means that in the future Clearwater Criminal Defense Attorneys and prosecutors must not offer nor recommend accepting pleas with that language embedded. To do so will in the future be deemed improper and unethical in St. Petersburg, Largo & Tampa Bay, Florida. But what about all the changes of pleas that have been accepted in Florida Federal and State Court systems which routinely contain provisions which the Florida Bar finds ethically repugnant?
Clearly Defendants can sign plea agreements even when innocent. But based on the new Florida Bar Ethics Committee draft opinion plea agreements that impede a Defendant’s right to attack the plea based on ineffective assistance of counsel or prosecutorial misconduct will no longer be binding. Florida appeals courts will need to determine if Defendants should be allowed to abrogate signed agreements which contain the offensive ethical provisions. Possibly so, as the Florida Bar decision would suggest that any attorney who allowed his client to sign such an agreement has committed an unethical act, an act which would appear at first blush to be a fine example of ineffective assistance of counsel. On an even broader scale every Tampa Federal Criminal Lawyer knows that signing a plea agreement in the Middle District of Florida in Tampa entails a suspect waiver of appeal provision, one that the Florida Bar finds deplorable.
Here is the portion of the Florida Bar Ethics Committee First Draft as to the ethical responsibilities of Defense Attorneys and Prosecutors:
|Vermeer, A Florida Plea Agreement?, 1670
“… a criminal defense lawyer has a personal conflict of interest when advising a client regarding waiving the right to later collateral proceedings regarding ineffective assistance of counsel. The lawyer has a personal interest in not having the lawyer’s own representation of the client determined to be ineffective under constitutional standards. This conflict is not one that the client should be asked to waive as noted in the comment to Rule 4-1.7, which states: “when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client’s consent.” A disinterested lawyer would be unlikely to reach the conclusion that the criminal defense lawyer could give objective advice about that lawyer’s own performance.
Regarding the prosecutor’s conduct in offering the plea agreement, the committee agrees with those states that find that the conduct is impermissible as both prejudicial to the administration of justice and assisting the criminal defense lawyer in violating the Rules of Professional Conduct under Rule 4-8.4(d) and 4-8.4(a), Rules Regulating The Florida Bar. The Committee believes that the vast majority of prosecutors act in good faith and would not intentionally commit misconduct. However, some prosecutorial misconduct can occur unintentionally and, in the rare instance, even intentionally. Prosecutorial misconduct may be known only to the prosecutor in question, e.g., when the prosecutor has failed to disclose exculpatory information. The Committee’s opinion is that it is prejudicial to the administration of justice for a prosecutor to require the criminal defendant to waive claims of prosecutorial misconduct when the prosecutor is in the best position, and indeed may be the only person, to be aware that misconduct has taken place.”
All of this means that Clearwater Criminal Defense Lawyers must be vigilant to defend the rights of clients even in plea agreements that were thought to be appropriate because they’d been accepted by the Florida legal system in practice, usage and functionality even while being unethical.
The U.S. Supreme Court today made crack cocaine sentencing slightly fairer by ruling that District Court Judges should apply the changes Congress made to lower drug weight calculations for the triggering of a Mandatory Minimum Sentence in the Fair Sentencing Act to those sentenced after the act was passed but committed the crime earlier. The Fair Sentencing Law changed what the originally used ratio of 100 to 1 weight of crack to cocaine was amending the weight ratio to 18 to 1.
|Manet, Absinthe Drinker,1859
Your favorite Clearwater Criminal Defense Lawyer still believes the ratio is unfair as the cocaine weight should not depend on how the cocaine is cooked, and crack sentencing tends to hit minorities at a higher level of incarceration creating sentencing disparity for similar quantities of drugs in Largo, St. Petersburg and Tampa Florida. In fact as I described in this Blog last year although the rates of drug use for whites and blacks are the same black are ten times as likely to go to prison.
The opinion is limited, but Justice Breyer wrote, “Finally, we can find no convincing reason why Congress would have wanted these unfair consequences.”
And the opinion also noted that the Federal Sentencing Guidelines are advisory, leading a Clearwater Criminal Attorney to hope Judges will keep pushing to reverse the unfair consequences of mandatory minimum sentences giving Judges more discretion to provide fair sentencing based on the facts of the case and other relevant factors for aggravation or mitigation of the sentence.
Rather than testify under oath a Pinellas Sheriff’s Deputy and Detective of the Narcotics Division resigned in shame yesterday when confronted with thousands of pages of internal affairs evidence of his misconduct and possible criminal actions. Other Deputies are also being investigated by internal affairs for numerous violations of Florida law in Tampa Bay, which leads your favorite Clearwater Criminal Defense Attorney to wonder who the real criminals are when law enforcement at the Pinellas County Sheriff’s Department is so corrupt that it investigates itself. This blog noted months ago that undercover detectives were accused of using fake subpoenas and donning the gear of utility men to gain entry into homes as well as committing possible felonies such as armed trespass and burglary.
|Goya, Shame, 1814
It shouldn’t take a former prosecutor and Clearwater Criminal Defense Lawyer to state the obvious: more than internal scrutiny is necessary to clean up this mess. A Grand Jury should be convened to investigate local law enforcement’s failure to abide by Florida law. Indictments should follow for any illegal activity. If the Pinellas State Attorney’s office doesn’t have the stomach to properly investigate crime at PCSO with the guidance of a local Grand Jury, then Governor Scott should convene a Grand Jury that will look into the systematic corruption within the criminal justice system in Pinellas at a higher and presumably more effective level to root out corrupt law enforcement. As citizens of Florida we have the right to expect that our law enforcement officers will abide by the same laws that we must follow because the law applies equally to all of us.
A new study by the Pew Public Safety Performance Project finds that soaring prison budgets do not provide the best path to public safety. The study singles out Florida as having wasted vast sums of money destroying lives with longer prison terms than were necessary for deterrence in averting future crime. Your favorite Clearwater Criminal Defense Lawyer wonders who did benefit from the enormous amount of prison overbuilding in Florida, which came at the expense of Florida funding for education, health and safety.
The tragedy detailed in this report is much more than merely lost money. It represents thousands of lost lives in Clearwater, St. Petersburg, Largo and Tampa Bay especially for those unfortunates incarcerated for long prison terms or mandatory minimum prison sentences for nonviolent crimes such as fraud, forged hydrocodone or oxycodone prescriptions, possession of marijuana, conspiracy and trafficking in drugs or possession of cocaine.
The report states as follows:
|Cezanne, The Opium Smoker
…extended prison sentences came at a price: prisoners released from incarceration in 2009 cost states $23,300 per offender–or a total of over $10 billion nationwide. More than half of that amount was for non-violent offenders.
Drug offenders served 36 percent longer in 2009 than those released in 1990, while violent offenders served 37 percent longer. Time served for inmates convicted of property crimes increased by 24 percent.
Almost all states increased length of stay over the last two decades, though that varied widely from state to state. In Florida, for example, where time served rose most rapidly, prison terms grew by 166 percent and cost an extra $1.4 billion in 2009.
A companion analysis Pew conducted in partnership with external researchers found that many non-violent offenders in Florida, Maryland and Michigan could have served significantly shorter prison terms with little or no public safety consequences.
The United States Supreme Court this morning granted cert in an interesting criminal law case that will determine the future of criminal law in Tampa Bay, Florida, especially when a Court is confused (just blame the attorneys) as to the elements of the charged offense. At the close of the prosecution’s dull case during a trial, a St. Petersburg Criminal Defense Lawyer will ask, well beg really, the trial court for what is known as a directed verdict or judgment of acquittal (JOA).
The Supreme Court will look at a case where the trial court issued a JOA at the close of the prosecution’s case, but the trial court misapplied or misunderstood the elements of the offense in granting the Defense motion. The prosecution wants to retry the Defendant, damn them, so the Supreme Court must determine if a retrial by the prosecution is barred on double jeopardy grounds even though the JOA was granted by the court on misunderstood elements of the charged offense (go ahead, blame the lawyers for confusing an honest judge).
The elements of a criminal offense are the facts that must be proven to sustain a verdict. Life is so unfair, as our Judges in Tampa Bay, Florida know all too well the elements and even add a few now and then no matter how much a Clearwater Criminal Defense Lawyer tries to confuse, spin or alter the law.
Having been a prosecutor and a defense attorney it seems to me that a directed verdict should be final as it’s unfair to try the Defendant twice on the same set of facts.
|A Lawyer argues for a JOA
Here are some of the facts of the case: Lamar Evans was charged by the state of Michigan with arson or “burning other real property” for his role in starting a fire in a vacant house. At the conclusion of the prosecutions’ case his lawyer moved for a directed verdict, arguing –apparently with the sly defense attorney’s fingers crossed – that a necessary element of the burning of other real property is that the building was not a dwelling, and that the prosecution’s evidence proved that the building burned in his case was a dwelling.
The court agreed, granting defendant’s motion. The state appealed and the Michigan Supreme Court held that the trial court was mistaken — the prosecution was not required to prove that the building was not a dwelling. And under these specific circumstances, the court held that if the trial court grants a defendant’s motion for a directed verdict on the basis of an error of law, an error that did not resolve any factual element of the charged offense — the trial court’s ruling does not constitute an acquittal for the purposes of double jeopardy and retrial is therefore not barred. Evans v. Michigan, No. 11-1327.
Federal District Judges are appointed by the president for life. Judges in Florida State Courts unfortunately are forced to retire at age seventy, a time when at least one Clearwater Criminal Lawyer thinks they’re just getting good at their jobs.
Should voters consider age when picking judges? My view would tend to be that the older a Judge is, the wiser, fairer and more compassionate, like Solomon, he’s apt to be. But at least in one judicial race in Florida there’s been some mudslinging from a lawyer running for judge who says the incumbent is not qualified to seek re-election because he will turn seventy before finishing his term of office. In an article about possible breaching of the judicial canons of Florida, Michele Kirk quotes the judicial candidate as saying, “The reason I said that he is not qualified is that he said that he was qualified to serve a six-year term, but he’s not,” she said. “He will serve less than three years.”“Yes, he has more experience than I do,” she added, “but he’s the past and I’m the future.”
The author also notes that the candidate may have violated other canons, quoting Clearwater Criminal Defense Attorney Robert Hambrick (hey, that’s me!) who only hopes that he too was part of the future and not the past.
Here is Ms. Kirk’s article about a lawyer possibly breaching the judicial canons:
According to defense attorney Robert Hambrick, a former Pinellas County prosecutor who writes about constitutional law, Lane is in jeopardy of being investigated by the Judicial Qualifying Commission if she were to win the seat. The commission is the authority on judges’ misconduct.
|Francesca, King Solomon & Sheba
To even question the law, there would have to be a rule requiring a judge to serve out his full term or one banning any candidates from running if they are older than 64, Hambrick said. There are no such rules.“As long as he’s under 70, then that is not a question for qualifications – he meets the criteria to be a judge. It’s just a political issue,” he said…..Hambrick predicted the Judicial Qualifications Commission will investigate after the race has been decided.
“If she’s been saying that on video, she could really have a tough time if she is elected. I think the qualifying commission might have a problem with that,” Hambrick said. “When someone gets elected, if there is an issue on how they got elected, it goes directly to whether that person should be sitting as a judge. It goes to their fairness and their judicial qualifications.”
“On just another level, I would be wondering about her capacity as a possible judge based on how she’s interpreting this law.”
A new report from Sexual Abuse A Journal of Research and Treatment examines the rates of recidivism for sex offenders over a thirty year period for sexual offenses where there was actual contact as well as for sexual offenses in which the Defendant was convicted of a sex offense in which there was no contact with a victim, such as child pornography, voyeurism or exhibitionism. At least one Clearwater Criminal Defense Lawyer believes the destructive nature of the harsh punishments imposed in Florida criminal courts for non-contact sex offender cases is often too severe especially when compared to cases with minimal punishment where there is actual contact. The findings and conclusions of the study support lower sentences for non-contact offenders and for those offenders who are over the age of 45.
The study notes that the following: Risk for contact sexual offending was related to antisocial behavior and sexual deviance as indicated by having unrelated victims. Noncontact sexual offending was related to sexual deviance in the absence of antisocial behavior … we found evidence that noncontact sexual offending does not lead to contact sexual offense. Only 4% of noncontact offenders in this sample were found to go on to commit a contact sexual reoffense during the follow-up period.
It is quite likely that those showing none of the indications of sexual deviance or antisocial behavior are in need of fewer treatment and supervisory services than those with indications of sexual deviance and/or antisocial behavior. Furthermore, our data indicate that life-time probation and registration requirements are unlikely to improve community safety. We found that after the age of 45, the risk for sexual reoffending drops precipitously. In addition, our data indicate that after 20 years in the community offense free, the risk of reoffending is extremely low.
|William Hogarth, Self Portrait, 1757
|Clearly, even a Tampa Criminal Defense Lawyer understands that a Defendant who had actual physical contact with a victim should be punished harshly, but for someone who had no physical contact with a victim shouldn’t there be less prison, less supervision and less over all punishment? Yet in Federal court in the Middle District of Florida in Tampa it’s not unusual for Defendants to serve significant jail sentences for crimes involving no contact with a victim. Is it reasonable that punishment for possession of child pornography could ever be greater than punishment for actually molesting a child? In one reason case of child pornography the Defendant received 17 years for possession of child pornography and the FBI and Federal Prosecutors in the Middle District of Florida, which encompasses Orlando as well as Tampa Bay and Pinellas, Florida, were proud enough of the sentence to put it on their web page.
Soon the Federal Guideline Commission will be tackling the problem of fair sentencing as it relates to sex crimes and the hope is that this new report on non-contact sexual offenses will sway the Commission to bring the guidelines to a reasonable level while also giving Federal District Judges much more discretion to go under the guidelines for non-contact sexual offenses.