Marking his path to legal history, Aldo, Florida’s favorite crusading drug dog, is sniffing for glory at the United States Supreme Court. The Court is reviewing a recent Florida Supreme Court decision which threatened Aldo’s career by finding that drug dog alerts are not a reliable indicator that there are drugs in a vehicle, because Aldo’s handler in testimony failed to show that Aldo’s drug dog alerts were reliable and the alerts are often false.
|Aldo, Weans Himself from Drugs
As the dignified members of the United States Supreme Court deliberate upon Aldo’s fate – one hopes not based on that little mistake made on the Court’s best rug in Chambers – questions arise as to whether recent studies showing the unreliability of drug dog alerts should be brought to heel.
Especially problematic to the fifty law professors specializing in fourth amendment cases who signed a brief against Aldo are false alerts caused when some unsuspecting citizens happen to have chemicals in their vehicles which could confuse poor Aldo. For example, drug dogs habitually give false alerts allowing for warrantless searches by mistaking the odor of aspirin or vinegar for heroin.
Despite high rates of false alerts some states have announced plans to begin vast sweeps thru American neighborhoods and housing complexes with drug sniffing drugs, just as Florida’s Supreme Court warned that if law enforcement wasn’t stopped, they would have drug dogs sniffing our front doors.
I haven’t written a brief on this as those fifty profs did, but should the U.S. Supreme Court ask advice from a Clearwater Criminal Defense Lawyer, my solution is simple, just outlaw aspirin, vinegar and American privacy rights and keep our courageous Florida dogs working.
|Botero, The Thief, 1994
Could there be more going on around us than the break down in social norms and modern cultural decline explored and deplored by the likes of Jacques Barzum in his book From Dawn to Decadence?
A recent essay makes an argument that we live in an age with an ever increasing incidence of impersonal psychopathic behavior marked by greater narcism laced with casual callousness and a lack of empathy.
The essay is from a new book called The Wisdom of Psychopaths: What Saints, Spies and Serial Killers Can Teach Us About Success. It makes some interesting points about the roots of criminal behavior. The Cambridge University Professor includes an argument that the loss of empathy by current generations may be a direct result of their failure to read fiction, because reading imbues the reader with empathy by placing the reader in the position of the characters.
No, he’s wrong there, it’s because they’re not reading this Florida Criminal Law Blog, as you do my empathetic reader. Anyway, other than some debatably odd conclusions here and there, here are a few excerpts:
In a recent study in London, 120 convicted robbers were asked why they did it. The answers were revealing. Kicks. Spur-of-the-moment impulses. Status. And financial gain. In that order. Exactly the kind of casual, callous behavior patterns one often sees in psychopaths….
…(Yet) in the right context, certain psychopathic characteristics can actually be very constructive. A neurosurgeon I spoke with (who rated high on the psychopathic spectrum) described the mind-set he enters before taking on a difficult operation as “an intoxication that sharpens rather than dulls the senses.” In fact, in any kind of crisis, the most effective individuals are often those who stay calm—who are able to respond to the exigencies of the moment while at the same time maintaining the requisite degree of detachment.
I suddenly get a flash of insight. We talk about gender. We talk about class. We talk about color. And intelligence. And creed. But the most fundamental difference between one individual and another must surely be that of the presence, or absence, of conscience. Conscience is what hurts when everything else feels good. But what if it’s as tough as old boots? What if one’s conscience has an infinite, unlimited pain threshold and doesn’t bat an eye when others are screaming in agony? …
More than social norms which change over time and place, it’s conscience that keeps some of us from abusing others with callous criminal behavior. If conscience could be measured and reliably enhanced that frowning Judge at sentencing would be much more likely to grant your Clearwater Criminal Defense Attorney’s request for mercy.
Is it Sumo Wrestling or Aggravated Battery? How can you be certain of what constitutes a crime in Florida?
The Florida Criminal Statutes may seem difficult to understand for those who aren’t Clearwater Criminal Defense Lawyers as they often are even for those of us who are. The statutes are written in ways which may seem purposefully obscure and convoluted, not just so you won’t understand them, but with the hopeful intent that a well written law will narrow the breadth of a statute to capture only the acts which the Florida legislature actually intended to outlaw or at least make you hire an attorney or two.
|Sumo Wrestling or Battery?
The key to knowing the law is to find what is known as the elements of a criminal offense. The elements of a crime are a set of specific facts which must be proven for every Florida criminal violation of law. Many Florida trial lawyers find that the Florida Criminal Jury Instructions which have been approved by The Florida Supreme Court are a reliable way to find the actual elements of a crime which the prosecution must prove to convict. Jury Instructions are the actual instructions which a criminal trial judge gives to a jury before it deliberates on guilt or innocence in every criminal case. Because these instructions are given to citizen jurors, the language is as straight forward as possible with the goal of being easy to understand. Here’s an example of the Aggravated Battery instruction:
8.4 AGGRAVATED BATTERY 784.045, Fla. Stat.
To prove the crime of Aggravated Battery, the State must prove the following two elements beyond a reasonable doubt. The first element is a definition of battery.
[intentionally touched or struck (victim) against [his] [her] will].
[intentionally caused bodily harm to (victim)].
Give 2a or 2b as applicable.
2. (Defendant) in committing the battery
a. intentionally or knowingly caused
[great bodily harm to (victim)].
[permanent disability to (victim)].
[permanent disfigurement to (victim)].
b. used a deadly weapon.
Definition. Give if 2b alleged.
A weapon is a “deadly weapon” if it is used or threatened to be used in a way likely to produce death or great bodily harm.
The statute might be difficult to understand but the jury instructions are simple. The State of Florida to prove an Aggravated Battery must first prove that the Defendant touched or struck someone against the victim’s will, a simple battery. Then further must show that the Defendant intentionally caused either great bodily harm, disability or disfigurement. If a deadly weapon was allegedly used then the Jury would be given the definition of deadly weapon. Effectively using the Florida Criminal Jury Instructions isn’t just for Clearwater Criminal Attorneys, it’s also for all the Sumo wrestlers wanting to know what constitutes crime in the State of Florida.
Once again we’re left with the troubling question of whether some kind of hallucinogenic drug flows in the water fountains at the Largo Police Department, as Largo police have made a nuisance of themselves by arresting folks on gambling charges for sponsoring Free Poker Games where players can win prizes but don’t buy in by purchasing chips according to press reports.
Free Poker games rotate in many bars and restaurants offering prizes for the best players. The bars and restaurants pay for the prizes not the poker players.
|Cezanne, Card Players with Largo Officer, 1895
There may be solid reasons for outlawing gambling. But Free Poker is not gambling. Poker is not a game of chance, it’s a game of skill. Especially when I’m playing, then it’s just a matter of time before the other players somehow end up with all my chips.
Florida gambling law can be found at Florida Statutes Chapter 849 which makes it unlawful for any player to play for money or other valuables at any game of chance (with an exception for small home poker games, bingo and bowling tournaments, no I’m not making this stuff up.).
If Pinellas County Prosecutors do not dismiss these gambling charges there’s a Clearwater Criminal Defense Attorney who will wager that a Judge will dismiss these charges making a finding that the Florida gambling law as applied in this case is too broadly worded, that those involved with the Free Poker Games had no intent to break Florida gambling laws and that the Largo Police Department are a bunch of fools.
A new Florida Department of Law Enforcement report based on medical examiners’ analysis of Florida drug deaths indicates that overall Florida drug deaths have risen even as prescription drug deaths have fallen. Don’t jump the gun in thinking that Florida’s Prescription Painkiller Database is responsible for any reduction of prescription drug deaths because as your Clearwater Criminal Defense Lawyer noted a few weeks ago, ten thousand Florida prescription drug deaths have not been sufficient in coaxing Florida doctors and pharmacists to embrace the Drug Database system as doctors continue to unlawfully dispense controlled substances at an alarming rate with only one doctor in twelve using the database.
The FDLE report notes that alcohol, cocaine and oxycodone were the drugs most often found in bodies of those who died and further notes:
- The drugs that caused the most deaths were all Benzodiazepines (545 – includes 461 deaths caused by Alprazolam) Oxycodone (607), Methadone (341), Ethyl Alcohol (269), and Cocaine (294).
- The four drugs where more than 50% of the deaths in which these drugs were found were caused by Heroin (95.0%), Methadone (72.2%), Oxycodone (57.4%) and Fentanyl (57.0%).
- Heroin continues to be the most lethal drug named in this report. Occurrences of Heroin have increased by 15% and deaths caused by Heroin increased by 23.5% when compared with the last six months of 2010.
|Cezanne, Still Life, with Skull
It isn’t enough to make needless arrests or further criminalize painkiller drug use by subjecting users to ever harsher drug sentencing laws. Fear of arrest should never keeps users from seeking help with drug addiction. Instead users should be given help and if arrested be given an opportunity to overcome drug addiction while having drug charges reduced with the help of Clearwater Criminal Defense Attorneys by effective representation in the Pinellas County Drug Court. These people need help not harsh minimum mandatory drug sentences. If new legislation is needed, it would be laws that will subject doctors and pharmacists who fail to use the Florida Painkiller Database to penalties for risking lives for profit.
Does crime run in families? Your Clearwater Criminal Defense Attorney has observed plenty of anecdotal evidence that it does. Fresh family members supply the criminal justice system with new faces just as the older generation hits career criminal status. Some families are to crime as the Kennedy family is to politics, made for it. But is it true and if it is, why?
|Degas, A Crime Family?, 1860
Here’s some scientific research from that magazine Criminal Justice and Behavior hidden among the clutter at your dentist’s office (odd your dentist reading this stuff, perhaps he has some hidden past). The article by imminent Florida State Professor Kevin Beaver is called The Familiar Concentration and Transmission of Crime, here’s a short abstract, if you’re too afraid to steal it because of your family’s low crime connections:
Research has revealed that crime tends to concentrate in families and that it also tends to be transmitted across generational lines. The current study expanded on this line of research by examining the familial concentration and transmission of crime in a sample of sibling pairs. Analysis of data drawn from the National Longitudinal Study of Adolescent Health (Add Health) revealed that 5% of all families accounted for more than 50% of all criminal arrests. Additional analyses revealed between-sibling similarity and intergenerational transmission in being arrested, being sentenced to probation, being incarcerated, and being arrested multiple times. Structural equation models (SEMs) were also estimated to examine the mechanisms that might account for the familial concentration and transmission of crime. These SEMs provided evidence indicating that the concentration and transmission of crime was due, in part, to genetic factors as well as mating patterns.
Let’s not challenge the most compelling stat, that 5% of all families account for more than 50% of all criminal arrests. If it’s true, what does it mean? The article implies that there may be genetic factors, mating factors and I would add perhaps a culture of crime within families factor. But the culture of crime is not the family planning their criminal acts like JFK’s folks helping him take the presidency.
No, there’s something sadly sinister here as well. Police work is much easier when law enforcement officers simply tag entire groups of families, friends, churches and schools as potential criminals. Find the criminal, find the affiliations, then fill the jails.
It’s clear that in Largo Florida police angered parents by over-branded 500 youths as gang members. And each of them was watched and even harassed. I often gets calls from people who say that officers are constantly stopping their vehicles, sending unreliable drug sniffing dogs looking for anything to arrest them without search warrants establishing any reason to believe there’s misconduct. A Clearwater Criminal Defense Lawyer sees entire families wrecked with every generation facing imprisonment, the fabric of justice that keeps most of us safe being the noose that chokes others.
How do firefighters determine if a fire that destroys property is caused by accident or arson? Often the initial investigation and fact finding of firefighters leads law enforcement to make an arrest on arson charges. If an arson investigation is moving forward contact a Clearwater Criminal Defense Attorney familiar with arson investigations and prosecutions as soon as possible to make certain that the process is fair and that any evidence of an accidental fire is not destroyed or mislaid.
|Joseph Wright, Cottage on Fire, 1787
A recent arson arrest of the owner of a Gulfport hardware store in Tampa Bay Florida gives insight into how arson investigations are conducted and into how a good lawyer could mount possible defenses. According to press reports the fire investigators came to a conclusion that the fire was an arson and not an accident based on the following factors:
- The fire had multiple areas of origin. Typically an accidental fire would have only one area of origin. For example an electrical fire would come from one failed circuit.
- The fire spread rapidly. This reason is not very strong for a hardware store as one would expect the store to have many paints, solvents and flammable material which would make this blaze have a faster and more intense burn rate than others.
- There is surveillance video which law enforcement claims is an indicia of guilt, but has not been further explained.
- Though not in press reports one assumes the investigation made factual determinations as to whether the property was insured and how the on-going business was doing financially as a possible motive for arson.
It’s often difficult to be certain of guilt in arson cases. A New Yorker article Trial by Fire told of a gruesome Texas arson case where the Defendant was found guilty, sentenced to death and executed for arson murder yet was likely innocent. What went wrong? From the beginning arson investigators jumped to easy assumptions that included tainted expert testimony at trial, which is why you want a Clearwater Criminal Lawyer defending you if you’re investigated for arson or any other crime.
After the recent scandal where administrators failed to timely report child abuse at Penn State, Florida has taken action to make failure to report child abuse a felony. According to press reports colleges face significant fines and individuals face felony charges if found guilty under this act:
The Protection of Vulnerable Persons law requires anyone to report child abuse to the Florida Abuse Hotline. Failure to do so could result in felony charges, or if someone at a university fails to report, the school could face fines of up to $1 million.
|Van Gogh, Baby Abuse?, 1888
Though Clearwater Child Abuse Lawyers agree that the intent of the law is commendable with the goal of protecting children from harm, the law is an example of over-criminalization.
How will Florida law enforcement and prosecutors determine that a person knew that an alleged abuse of a child was clearly occurring? Once the police suspect abuse rather than just arresting and prosecuting the abuser, the case will escalate into an investigation of everyone who came into contact with the child yet failed to report any abuse.
The tragedy is that the law will not be seen as overly broad until multiple wrongful arrests ruining the innocent lives of folks who happened to have contact with an abused child, but can’t easily prove they never suspected any child abuse.
For example, a vigilant bus driver notices strange bruises on a child, suspects abuse and reports it. Should the home room teacher, the sunday school teacher, the coach, the music teacher, the school principle all be charged with felonies for failing to report what they may never have noticed?
And unlike the previous Florida law requiring reporting of suspected child abuse this law applies to anyone in contact with the child not just parents or caretakers.
If you’re being investigated by law enforcement for violating Florida law contact an experienced Clearwater Criminal Attorney for Defense consultation and help.
A few months ago while wired up to a polygraph machine your favorite Clearwater Criminal Defense Attorney examined reasons why you should never take a polygraph test if asked by law enforcement officers. Having fully recovered from the experience of telling the truth albeit for only an hour, today we’ll look at the scientific studies that establish the unreliability of polygraph tests.
|Cezanne, Truth or Polygraph, 1900
In Federal Courts polygraph evidence is never admissible. Why? Because the accuracy of polygraph results has never been established with supporting scientific evidence. In Florida Courts polygraph evidence may be admissible but only if the prosecution and the defense agree. Yet it’s interesting to note Florida law requires that convicted sex offenders take at least one annual polygraph every year for “risk management and treatment and to reduce the sex offender’s denial mechanisms…”; clearly with the hope that the convicted sex offenders will give accurate information because of the threat that inaccurate information will be ferreted out during polygraph exams.
Some of the factors that affect polygraph examination validity include the setting of the enquiry, the quality of the examiner, the quality of the examiner’s questions technique, the subject’s countermeasures as well as the subject’s mental and physical state. All of these variables result in inaccurate tests, which an evaluation study of all of the scientific studies gave as an accuracy range as low as 64% to as high as 98% without any perfect scores. The National Research Counsel of the National Academy of Sciences also looked at the evidence finding that polygraph gave inaccurate, questionable results.
Even the folks who license polygraph examiners at the American Polygraph Association, in putting forth their best arguments as to the validity of the exams state the following:
The data showed that techniques intended for event-specific (single issue) diagnostic testing produced an aggregated decision accuracy of 89% (confidence interval of 83% – 95%), with an estimated inconclusive rate of 11%. Polygraph techniques in which multiple issues were encompassed by the relevant questions produced an aggregated decision accuracy of 85% (confidence interval 77% – 93%) with an inconclusive rate of 13%.
If a hundred innocent folks are asked questions concerning a murder under a polygraph exam, twenty-three of the innocents will be falsely accused and if someone with guilty knowledge is questioned she (because the best murderers are always ladies) has nearly a one if four chance of not being found out.
So how can law enforcement get away with using such a flawed polygraph test system? Because it’s what they’ve got.
Which brings your Clearwater Criminal Defense Lawyer to the paradox of lie detector testing: clearly it can be a very effective tool for law enforcement when someone suspects the lie detector will be accurate, because the subject will parse words carefully in hiding deception or in admitting incriminating facts.
It’s not unusual for Clearwater Criminal Defense Attorneys to be asked about fundamental fairness in criminal justice as this recent question illustrates:
|Renoir, Self Portrat, 1875
My son was found guilty of possession of drugs. The drugs were found in his car after he was pulled over for an out of date license tag and police used a drug dog to find drugs in the car. My son didn’t know the drugs were there.
At sentencing the Judge gave him much more jail time than we were told he would get before the trial. But he didn’t take the plea deal because he would have lost his job. Can we appeal the sentence as being unfair and unjust?
Fundamental fairness in American law is defined by the concept of Due Process. Due process derives from the amendments to the constitution which protect Americans from vague laws and require proof beyond a reasonable doubt to convict in criminal cases. Due Process delineates other protections as described here:
Our Supreme Court has held that the due process clause protects against practices and policies which violate precepts of fundamental fairness, even if they do not violate specific guarantees of the Bill of Rights. Does the challenged practice or policy violate “a fundamental principle of liberty and justice which inheres in the very idea of a free government and is the inalienable right of a citizen of such government.”
As you can see the standard of fundamental fairness is fluid depending on the facts and circumstances of each case. In your son’s case it’s not enough to simply argue that the sentence was unfair and unjust, as you’d need to establish why it is unfair and unjust. The trial itself and the sentencing after the trial will be presumed as fair unless you can establish that there was error by the Judge or Prosecutor which was fundamentally unfair in itself rather than merely creating a result that you didn’t want. In other words Due Process doesn’t mean you always get a fair result, but does require a fair process.
Did the Judge give your son a sentence within the Florida guideline and scoresheet range? In Florida an unlawful sentence can always be appealed, but a Judge in sentencing after a jury trial is well within his rights to give more time than was originally offered in a plea offer as long as the Judge is not punishing the Defendant for going to trial.
For example, if the Judge makes a finding that he gave more punishment because a Defendant after testifying at a trial was convicted and therefore arguably committed perjury or that the facts heard at trial convinced the Judge that the case was more aggravated than he’d believed when making the plea offer, then the sentence will be affirmed by an appeals court in Florida even if the sentence is a mandatory minimum sentence for a nonviolent drug crime which a reasonable person would find as being overly harsh, inhumane and unreasonable. If you want to appeal the sentence you’ll need to contact a Clearwater Criminal Lawyer to file a notice of appeal for your son as soon as possible as time is of the essence in any criminal appeal.