SPREADING CELLPHONE TECHNOLOGY IS MAKING FAIR CRIMINAL JURY TRIALS IMPOSSIBLE

Ever better, faster and accurate cellphone technology may be making fair trials more difficult for Clearwater Criminal Attorneys to obtain. A reporter who followed a Defendant’s winding road toward a trial for two years understood when she was struck from the jury panel for knowing too much about the case, but was understandably shocked when she witnessed the presiding Judge telling the jury not to google the case online nor to google the Defendant’s name. 

the artist monet reading the day's newspaper couldn't know all we do about criminal trials  and defendants by googling them, Tampa Bay Judges must strive for fair criminal trials in Florida
Renoir, Monet Reading, 1872

Giving rise to the question of how fair can jury trials be when all of the information which could preclude a fair trial is readily available on most cellphones by merely googling the Defendant’s name. Has technology precluded the possibility of fair trials? If other Judges are as eagle-eyed as District Judge Clancy Smith, then the right to a fair and impartial jury may be protected well into the future.

The presiding Judge later spoke on why it’s important to cap juror’s knowledge of relevant facts to only those facts presented in the courtroom; even better, the Judge forbids cellphone use during trials:

“I tell all the jurors you have to decide the case on what you hear in the courtroom because so much of that would be inadmissible and it’s not proven and not true sometimes,” said District Judge Clancy Smith.
Jurors can learn things that have no bearing on the case, like if the person has filed for bankruptcy or been sued or has previous charges — things that could sway their thinking during deliberations.
“The fear is you will convict him because of his past, not because of what happened here and so, these are the main reasons you can’t let them look at something not screened by a judge.”

The Judge is right to be concerned. The vast majority of cases in the American Justice System end with a plea bargain. When a Defendant asserts his right to a jury trial it’s often due to special circumstances which the jury is forbidden to know.  Plea offers and plea agreements should be open, transparent and based on the facts of the case laced with the defendant’s scoresheet and guideline calculations; but because Florida prosecutors and even Judges must face the electorate other factors often play a role in plea negotiations where jail time is demanded in situations where no jail would be a reasonable plea offer. 
When the Defendant demands a jury trial, all that mattes is that he is asserting that he is not guilty and therefor must be given a fair opportunity to hear the facts and evidence against him and to present any witnesses or evidence in his behalf. In Tampa Bay, Florida one recent high profile murder case had to called off when jurors were found to be gossiping about the possible facts of the case even as the jury was being selected. The goal of every Florida criminal trial must be to give the Defendant a fair trial by tamping down jury information so that due process rights are respected even if he’s represented by a Clearwater Criminal Defense Lawyer who views that iPhone of yours as nothing less than magic.

PROSECUTORS USE OF CASE AGENTS IN FEDERAL CRIMINAL TRIALS MAKES MOCKERY OF JUSTICE

Under the common law from time immemorial witnesses are barred from listening to the testimony of other witnesses during a trial. This is known as the rule of Witness Sequestration which Clearwater Criminal Defense Attorneys often invoke by motion after a Jury is sworn but but before the first witness testifies. The reasoning behind Witness Sequestration is that a witness who hears other testimony during a trial will be influenced by that testimony adding to the possibility of collusion or falsification of evidence.

Here’s an excerpt of Florida’s codification of the common law rule on witness sequestration:

90.616 Exclusion of witnesses. 
At the request of a party the court shall order, or upon its own motion the court may order, witnesses excluded from a proceeding so that they cannot hear the testimony of other witnesses …..except in a criminal case, the victim of the crime, the victim’s next of kin, the parent or guardian of a minor child victim, or a lawful representative of such person, unless, upon motion, the court determines such person’s presence to be prejudicial.

federal case agents like zacherie zacharian do not have to abide by Witness Sequestration rules as do other witnesses in criminal trials Federal Court in Tampa Bay the Middle District of Florida
Degas, Zacherie Zacharian,1886

Under Florida law even the victim of a crime is not guaranteed a seat during the trial if it may be prejudicial to a fair trial. As the goal of every criminal trial should be to give the Defendant a fair trial you’d think that this rule of witness sequestration would be common to every court in Florida, but the rule does not always apply in Federal trials though Federal Rules of Evidence 615 is similarly written.

In Federal criminal trials the Assistant United States Attorney trying a case selects a Government “case agent” who sits with the prosecutor throughout the entire trial, listening to all of the evidence, then testifies.

Here is a recent email received from a fellow lawyer and budding socialist, Steven Kalar, Senior Litigator, Federal Defender’s Office, San Francisco:

Comrades:   It is an aggravating thing, to have the government's key witness sit through a trial, watch all of your crosses, and adapt his or her testimony in response. That's what happens when a government witness is designated as a "case agent"--  a regrettable exception to the sequestration procedures in Federal Rule of Evidence 615. The case of Valencia-Riascos illustrates this unfair government gambit. U. S. v. Valencia-Riascos (9th Cir. Oct.11, 2012). In Valencia-Riascos, the "case agent" was an ICE Agent named Miller. Miller was the only witness to an assault alleged against the defendant. Agent Miller was not only allowed to sit and watch the entire trial, but was also allowed to testify last (after hearing all the crosses). The district judge even refused to give the (relatively standard) cautionary instruction about law enforcement witnesses.    

Assistant Federal Defender Rebecca Pennell went after the sequestration rulings under Federal Rule 615, alleging a due process violation... Judge Graber, unfortunately, was unpersuaded in all respects (though she threw us a little helpful scrap of dicta at the end of the case). 

Although this California opinion is not binding in the Middle District of Florida in Tampa, the Courts in Florida follow a similar rule allowing government case agents to avoid the rule of sequestration. Your Clearwater Criminal Defense Lawyer agrees that fair trials in Florida Courts require fair rules of criminal procedure, shouldn’t Federal Courts require case agents to either testify before hearing all the evidence or leave the courtroom like other witnesses?

WHEN COPS PLAY ROBBERS: FORMER POLICE OFFICER CHARGED IN MULTIPLE FLORIDA BANK ROBBERIES

former cop robs banks in St. Petersburg Florida; violent acts can be as addictive as drugs but are not a good reason to go under florida guidelines
Picasso, Before Robbing Banks

Risk taking can be as addictive as drugs, but mixing drugs with the ultimate risk of Florida bank robbery makes for a toxic mix for a Clearwater Criminal Defense Attorney to unwind. The crack bank robber who recently called 911 saying that he was about to rob another Tampa Bay bank is a former police officer with a huge drug problem. His life spiraled out of control not only from drug addiction but seems to have escalated into the need to take ever greater risks with an addiction to the risks of robbery itself. As press reports note:

Money is rarely the sole motivator in bank heists, says William Rehder, a bank robbery expert and 33-year FBI agent. What drives the robbers, the thing that keeps them coming back to steal even more, is the excitement of the act itself.
“All bank bandits are serial,” Rehder said. “Robbing a bank is as much an addiction as drugs can be.”

That’s likely what it was for Kane…as Kane himself told authorities after each time he was busted, it was addiction, the primal rush one gets from carrying out something as invigorating and dangerous as taking someone else’s money, that led to his downfall.

Yet even if violent acts such as robbery are addictive should Courts take that addiction into account to lower the Florida sentencing scoresheet and guideline as might be reasonable with a proven drug addiction? Violent crimes by their very nature must be treated by the Courts in Florida with more care than nonviolent crimes.
Criminal sentencing has many objectives which Clearwater Criminal Lawyers often argue such as the hope for rehabilitation or the need for punishment, but protecting the public from violent acts is a primary goal which in Tampa Bay Florida will always be the sentencing Court’s primary concern no matter what addiction is proven.

MUST FLORIDA HONOR AN ARREST WARRANT FROM ANOTHER STATE EVEN IF I’M NOT GUILTY OF ANYTHING?

What should you do if you find you have an active arrest warrant issued from another state? Here’s a question your Clearwater Criminal Defense Lawyer was recently asked:

I’m very scared of being arrested for something I didn’t do. What happens when another state issues an arrest warrant? I moved to Florida several years ago. I’ve just found out that there is a felony arrest warrant for Fraud or Scheme to Defraud in Atlanta, Georgia. From what I can figure out the warrant was issued from the company I used to work for and is a misunderstanding that I thought was already cleared up and I have the paperwork to prove it.  Will Florida police arrest me for this? If I’m innocent can I resist the arrest? What should I do?

even great oarsmen can't escape an out of state warrant  as the warrant  will be honored in Tampa BayFlorida
Renoir,  The Oarsmen, 1879

You may think it was just a ‘misunderstanding’ in Georgia, I hope for your sake you’re right, but a Georgia Judge signed an arrest warrant based on probable cause that you committed Felony Fraud in Georgia. You’ll need to hire an attorney in Georgia to persuade the prosecutor that the criminal case against you should be dismissed. Prosecutors in Georgia will not likely look into your case until after you turn yourself in, make a court appearance and only then will you be allowed to seek a bond. 
If you choose not to turn yourself in to Georgia authorities, then you need to understand that at anytime you may be stopped by Tampa Bay Police and arrested in Florida as an arrest warrant from another state will be honored by Florida law enforcement. 
Although it’s true that you can resist an unlawful arrest in Florida without using violence, a Florida arrest based on a warrant from Georgia will be deemed lawful and any attempt to resist the arrest will result in Florida criminal charges of resisting arrest without violence.  
If you are arrested under the Georgia warrant in Florida, you will be kept in detention without a bond as you’ll be deemed a flight risk. Instead Florida will contact Georgia to determine if Georgia wants you to be extradited back to Georgia to face the Felony Fraud charge. In Florida you will be given an extradition hearing to determine if Georgia has the right bring you back and that you are the person whom Georgia seeks with matching fingerprints or DNA. At an extradition hearing a Clearwater Criminal Defense Attorney could argue any false identity issues, but will not be permitted to argue the underlying merits of the Felony Fraud or Scheme to Defraud case against you nor your innocence as those issues are for a Georgia Court to determine. 
The smartest thing for you to do is not to wait for the arrest warrant to come to you, rather you must go to it by cleaning up the matter in Georgia immediately.

FUTURE FLORIDA GANG MEMBERSHIP LISTS SHOULD INCLUDE AN APPEALS PROCESS & MANDATORY NOTICE TO ANGRY PARENTS

Florida law enforcement angered parents by falsely labeling large number of juveniles on secret gang membership lists even when they never violated the law. Clearwater Criminal Lawyers  pointed out that the over-broad characterization from the Largo Police Department, the St. Petersburg Police Department and the Pinellas County Sheriff’s Department was not only unfair and un-American, but actually was useful only in grooming these youths into the role of law breakers rather than law abiders. Close police scrutiny on any citizens based on their merely speaking to other citizens at the same school or church is wrong and violates our rights. 

youths in Florida are being falsely labeled as gang members, in Pinellas & Tampa Bay  there'll be one list, an appeal process & notice
Van Gogh, Young Man, 1888

An entire class of citizens is being branded as part of the criminal underworld even when they never violated Florida law. Finally, local authorities in Pinellas County, Florida are looking at changing the criteria for inclusion of a citizen as a gang member. Action needs to be taken immediately to correct the unfairness of the gang lists with these solutions as noted in TBT:

  1. There must be mandatory notification of the parents or guardians of any juvenile before being listed as a gang member. 
  2. There must be an appeal process for those who believe they’ve been falsely labeled. 
  3. There must be one central database of names for Pinellas County rather than each agency having a list which could be abused.

The absurdity of these lists which were created by a Florida Statute on Gang Prevention is that the laws create gang membership even where there is no real gang affiliation. One unfortunate but laughable result of over-broad labeling by law can be found in the fact that the FBI is being sued because it labeled the entire fan base of a heavy metal rap band as gang members. But at least these thee steps will stop the Largo Police Department from abusing its authority by absurdly listing 500 juveniles in that small city as gang members and by giving parents the ability to appeal arbitrary gang affiliation decisions with due process rights enforced by Clearwater Criminal Defense Attorneys.

NOTHINGS RIGHT ABOUT WRONGFUL CONVICTION COMPENSATION IN FLORIDA WHERE TIME DOESN’T PAY

Imagine being falsely accused, arrested for something you didn’t do, then prosecuted with unreliable lab failures, errors and false expert testimonyfalse forensics, fabricated DNA evidence or unreliable fingerprint evidence before facing a Florida Judge who sends you to a grim Florida prison. Imagine telling your loved ones throughout the years of this torturous ordeal that you’re innocent while feeling their faith in you ebbing away with your freedom.  Yet Clearwater Criminal Defense Attorneys fight for your innocence till a Judge agrees (we’re imagining after all) that you’ve been wrongfully convicted and you, blinking from brutal prison conditions are finally set free. 

renoir's self portrait portrays a man with faults, in Florida prior faults keep the wrongfully convicted from being compensated for their time in prison
Renoir, Self Portrait, 1910

You might think the State of Florida owes you something for their failures and their mistakes in a failed investigation, prosecution and conviction of an innocent man. 

Yet the wrongfully convicted in Florida are not being compensated. Four years ago Florida passed a law granting compensation for those wrongfully convicted by Florida Courts and Prosecutors. How much is wrongfully taking someone’s freedom worth? Not much if you’re unlucky enough to be wrongfully convicted in Florida, as only three people have received any compensation, according to press reports
This is true because Florida requires that the wrongfully convicted have clean hands with no prior record whatsoever for any compensation. Twenty-two people have been exonerated from murder charges since 1972, hundreds have been exonerated from other convictions. all that should matter is whether there has been a false conviction, if so there should be compensation for that wrongful conviction as a matter of fairness. Here is a comparison of how other states compensate for wrongful convictions and arguments on why there should be compensation for wrongful convictions. 
Your Clearwater Criminal Defense Lawyer is reluctant to tell how much compensation the wrongfully convicted receive as the folks who read this Blog are apt to get themselves arrested and convicted in the belief that I’ll find new evidence, get the conviction reversed and sell the movie rights, all for a law that pays $50,000 per year incarcerated with a cap of two million dollars. Forget the crime just write the screenplay and we’ll split the money.

IF 10,000 FLORIDA PAIN PRESCRIPTION DEATHS AREN’T ENOUGH TO PERSUADE DOCTORS TO USE FLORIDA’S DRUG DATABASE, WILL PRISON?

Doctors and pharmacists in Florida could find themselves in need of a Clearwater Criminal Lawyer for failing to check the database of the Prescription Drug Monitoring Program allowing addicts of pain killers such as oxycontin or xanax to receive multiple prescriptions.  The law was meant to save lives by placing a database of pain killer prescriptions which doctors and pharmacists would use to determine if someone was abusing pain killers with multiple prescriptions from different doctors. 

Florida Doctors sow death from pain killer overdoses by not using drug database
Van Gogh, The Sower, 1888

According to press reports many Doctors aren’t taking the problem seriously as only one in twelve doctors who prescribe pain medication have signed into the database, despite over 10,000 Florida deaths from pain prescription drug overdoses over a six year period.
For those Doctors who run pain clinics or prescribe highly addictive pain killers on a regular basis here’s a bit of unsolicited advice from a Clearwater Criminal Defense Lawyer and former Pinellas Drug Prosecutor familiar with drug prosecutions in Florida. 
First you might want to remember the criminal case against Doctor Bob, a pain doctor who was given a twenty year sentence in Federal Court for writing prescriptions for oxycondin, vicodin and other drugs which led to the death of five addicted patients; although the Federal Appeals Court has granted an appeal his life is still ruined. Any Pain Doctor’s failure to use the Monitoring Program’s database will be an effective piece of evidence against that doctor if ever charged with Unlawful Dispensing of Controlled Substances or Conspiracy to Traffic in Drugs, because it takes away a possible defense of having no idea a patient had other pain prescriptions. So sign up, save a patient’s life while saving yourself a ten year minimum mandatory drug sentence while your at it.

SAVE AN ENDANGERED FLORIDA SPECIES – SAVE THE FLORIDA SUPREME COURT BEFORE IT BECOMES EXTINCT

Federal Judges are appointed for life. Recently one of the oldest Federal Judges was still presiding over his Kansas Courtroom until his death at 104 with a hopeful motto of ‘no long trials.’ State Judges in Florida don’t have that luxury because they face retention votes every few years. 
The Republican Party of Florida with a handful of big (bigger than big billionaire) money players from outside the Sunshine State want to undermine justice on the Florida Supreme Court by forcing out three outstanding Judges. This attempt to pack the Florida Supreme Court is absurd because the justices have proven themselves to be nonpolitical. One of the Judges was even reappointed by Jeb Bush. 

the florida supreme court is at risk of being destroyed by wreckless attacks on the judiciary playing cards with the future of justice
Cezanne,  Playing Cards for Florida Justice

As fair minded Floridians we can all agree that we’re best served by an independent judiciary where wise legal decisions are not made based on political bias but by a close reading of a certain Clearwater Criminal Defense Lawyer’s blog every hour to check for updates. 
Yet without good cause these three fair and unbiased Judges on the Florida Supreme Court are being challenged as somehow unfit to serve.  Florida Bar members recently showed overwhelming support for members of the Supreme Court of Florida with upwards of 90% of the lawyers, many of whom are Republicans, voting to retain the three judges up for retention this year. The bar asked attorneys to vote on the following criteria:

  1. Integrity
  2. Judicial Temperament
  3. Impartiality
  4. Freedom from Bias or Prejudice
  5. Demeanor on the Bench
  6. Courtesy from the Bench

The pull results as found at the Florida Bar are as follows:

A ballot mailed in August to all lawyers residing and practicing in Florida asked whether the incumbent justices and appeals court judges should be retained or not, and asked that they consider eight attributes in making their decisions…
The Bar sent out 68,243 ballots to in-state members in good standing and 7,857 lawyers participated. Only responses by lawyers indicating considerable or limited knowledge of the judges were included in the poll results.

For the Supreme Court, poll results indicate support for retention of:

    § R. Fred Lewis by 92 percent.
    § Barbara J. Pariente by 89 percent.
    § Peggy A. Quince by 90 percent.

The ever improving NYT weighed in as well:

By announcing its opposition to the three justices, the Republican Party avoids clashing with a law that prevents political parties from endorsing judicial candidates.


Even your favorite Clearwater Criminal Defense Attorney doesn’t always agree with the court, especially it’s recent failure to find Florida’s Drug laws unconstitutional, where no knowledge of drugs is required to convict, but all of us should unite in respecting the Court by supporting some good Judges who are unfairly being attacked.

NEW “911 GOOD SAMARITAN LAW” PREVENTS DRUG OVERDOSES BY SHIELDING ARRESTS WHEN CALLING FOR MEDICAL HELP IN FLORIDA

One of the tragedies of America’s unforgiving war on drugs is the large number of young people killed because of an overdose. Clearwater Criminal Lawyers find that the harsh Florida drug laws and even harsher Florida drug sentencing not only corrupt prosecutors but contribute to a fear of punishment that pushes otherwise law abiding citizens toward making foolish choices. 

new 911 good samaritan law in Florida stops drug arrests when 911 is called to prevent drug overdose in Tampa Bay, Largo, Clearwater & St. Petersburg
Van Gogh, The Good Samaritan

Tragically the reasonable fear of arrest and prosecution for possession of drugs often makes even good people make the mistake of not calling for an ambulance immediately even when timely medical intervention could save a friend’s life from a drug overdose. Often precious time is wasted in an effort to ‘clean up’ the area where the drugs were ingested, before calling 911.

Florida has failed to follow a reasonable path toward the decriminalize some drugs, but Florida has responded to the fear of drug arrests during an overdose with the 911 Good Samaritan Law. Here is an excerpt from the law which became effective law in Florida as of today, October 1, 2012:

“911 Good Samaritan Act;” providing that a person acting in good faith who seeks medical assistance for an individual experiencing a drug-related overdose may not be charged, prosecuted, or penalized for specified offenses in certain circumstances; providing that a person who experiences a drug-related overdose and needs medical assistance may not be charged, prosecuted, or penalized for specified offenses in certain circumstances; providing that the protections from prosecution for specified offenses are not grounds for suppression of evidence in other prosecutions; amending mitigating circumstances under which a departure from the lowest permissible criminal sentence is reasonably justified to include circumstances in which a defendant was making a good faith effort to obtain or provide medical assistance for an individual experiencing a drug-related overdose, etc.

The Florida law protects from drug arrest and drug prosecution those making 911 calls to help someone who may have overdosed. The hope is that drug abusers will look out for each other rather than fear arrest without requiring the services of any Clearwater Criminal Defense Attorneys to invoke the protections and rights of the new 911 Good Samaritan Law.