Years ago while your Clearwater Criminal Lawyer was a young sometimes productive Prosecuting Attorney in Florida one of the other lawyers bought a beautiful 911 Porsche, red as I remember. He boasted to someone at the office that the Porsche was more recent than it really was.
Within a day xeroxed evidence materialized showing the Porsche was much older than he claimed. The information gracing every wall was from confidential law enforcement tag sources meant only for law enforcement purposes. For kicks someone added his NCIC criminal history which unhappily showed little of interest as well as his Florida Department of Motor Vehicles information establishing a litany of speeding tickets.
|Former Prosecutor’s Porsche 911
For fun in those long begone days we prosecutors often had mock prosecutions of each other when not faced with real trials taking turns in various roles. I was often chosen as Counsel for the Defense, but not for him. The evidence on the walls was deemed trustworthy. At trial in one of our offices, doors locked to prying supervisors, we convicted him of being not only a liar, but of something somehow worse and unspoken, of being less than a gentleman. To this day when I see him defending in Court, I cringe in disgust.
Yet after all these years could it be that my judgment was misplaced? Clearly, one of the lawyers in that State Attorney’s Office took it upon himself to commit a felony just to put the Porsche Man down.
My thoughts turned to that long ago incident after seeing today’s press reports concerning a Clearwater Police Department Officer who appears to have gained confidential car tag information for a friend going thru a divorce. If the information was delivered without being part of a law enforcement investigation, then there’s no excuse for the failure to respect another citizen’s privacy rights.
Yet, I can’t help but think that it’s some of my former colleagues, those same Prosecutors who may have taken that Porsche tag information so long ago, who are weighing whether to charge the Clearwater officer with a felony. I wonder if they remember. If so, they don’t need a Clearwater Criminal Defense Attorney to tell them that the statute of limitations has passed and at least they’re safe from prosecution.
Even Clearwater Defense Attorneys quake at the thought of law licensing problems emerging during an important murder trial.
|Any Licensed Prosecutors ?
After picking the jury and giving the Opening Statement which provides the jury with the general facts of a case without arguments, a reporter for the Miami Herald asked the Florida Prosector trying the significant Miami murder trial if he knew that his law license was revoked. You have to admire the reporter’s drive to get a great story by waiting to ask until after the case began.
Turns out the Florida Bar revoked the prosecutor’s license to practice law in Florida because he’d failed to accurately establish that he’d taken his required Continuing Legal Education Classes. Maybe there should be a class on how to take the classes and how to make sure that the Florida Bar has given appropriate credits.
The presiding Florida Circuit Judge refused a defense Motion for a Mistrial based on prosecutorial misconduct in allowing the prosecutor with a revoked license to make opening statements. The Judge determined that the problem was a clerical mistake which would not prejudice the Defense, which is a reasonable ruling.
Anyway, as it proceeds that prosecutor is off the case. If it’d been the defense lawyer whose license was revoked a convicted Defendant would still need to make a showing that his attorney was not effective as counsel, being unlicensed could be helpful but not necessarily definitive in making that argument.
Before the emails come flooding into my office with the heated question, Did that prosecutor break the law in Florida for practicing law without a license?
Assuming the trial judge was factually correct that it was merely a clerical error and that the prosecutor had no knowledge of the suspension, then he didn’t break the law so put up the pitchforks… But if he knew of the suspension and ignored it with the Florida Bar having sent him notice of the suspension, then he better call a Clearwater Criminal Lawyer to begin his defense.
If someone is suspected of a DUI should the officer be allowed to search the person’s cell phone for pornography without a warrant? If someone is suspected of grand theft should an officer be allowed to use the cell phone to help determine where the person may have been at the time of the crime? Should cell phone conversations be considered private? Is carrying a cell phone the same as carrying a briefcase? American Courts disagree even as Clearwater Criminal Defense Attorneys urge Courts to find that Americans have a reasonable expectation of privacy rights in their cell phone use.
Recent press reports note that Courts across America are greatly divided as to whether search warrants are necessary for law enforcement to use the vast amount of personal cell phone information as well as internet use and email. Not only are American Courts divided, but more troubling is the fact that even the rationals of the various Courts in making privacy rights decisions in criminal cases are inconsistent.
Yet as the ACLU chart below indicates an ever larger number of Americans are being subjected to phone taps, traps and traces.
|Increase in Phone Taps, Traps & Traces
The failure of our Courts to agree on an overall reasonable privacy right requiring search warrants for personal cell phone information would seem to necessitate a review of privacy rights by the Supreme Court. Yet except for a recent Florida GPS case in which the Supreme Court demanded that Florida law enforcement stop using GPS to track the movement of Florida citizens, the Court has turned a blind eye to the most important privacy rights issues of this generation.
In a few days Congress will begin debates over amendments to the 1986 Electronics Communications Act, your favorite Clearwater Criminal Lawyer urges you to demand that your Congressman vote to repeal the provisions of the law which could be interpreted by any American Court as allowing warrantless searches of private information from private cell phone, internet and email use.
The day after Thanksgiving your Clearwater Criminal Defense Lawyer received a call about prison conditions at the Coleman Federal Correctional Institution in Florida. The call came from a lady who believed her son was singled out for cruel and unusual punishment at the jail.
Here’s the gist of her questions to me:
|Van Gogh, Prisoners, 1890
A few months ago another inmate threw a knife into my son’s cell. Since then my son has been punished for the knife by placement in the hole (solitary confinement), with only one phone call to me per month and many other losses of what little freedom he had….
My son did not co-operate in telling who threw the knife because he legitimately fears reprisals from inmates. Yet after all this time he has not been charged with any offenses from the knife incident. What can I do to get better conditions for my son?
The prison system of America holds a higher portion of the population than any prison system in the world. The over-crowded conditions in many American jails such as the Pinellas County Jail in Tampa Bay, Florida should be improved. For the most part the Bureau of Prisons has been held by Federal Judges to a much higher standard of care than most American state and local prisons.
Clearly all jails are allowed to punish and segregate prisoners who violate the law or violate prison rules by being found in possession or close proximity of weapons, drugs or other contraband. Even for rules violations long term solitary confinement should be deemed cruel and unusual punishment, yet our Government confines up to 80,000 prisoners in solitary confinement.
So what can be done for your son?
First, without being accusatory, simply contact the jail in writing with a factual statement of the circumstances your son is facing including the length of time spent in solitary confinement with details of any other deprivations. This puts the prison on notice that someone outside the system is alert, watchful and that your son is not forgotten.
Then you should contact the psychologists, doctors and clergy (or faith-based community organization members) who are daily allowed into the jail making direct contact with inmates with the facts of the conditions your son is facing and request that they meet with your son as soon as they can.
Your objective is to have as many eyewitnesses as possible to view his conditions, note his circumstances and if necessary to complain about his conditions. Once you have their statements in writing you can go to the Bureau of Prisons with a complaint or if the Bureau of Prisons fails to take action to file a Federal Habeas Corpus Petition to get him better conditions or free him.
Especially during this Holiday Season let him know he’s not forgotten and that you’re doing your best to help him. And with help from Clearwater Criminal Defense Attorneys we’ll be doing our best to help other prisoners survive the most difficult time of their lives.
Clearwater Criminal Attorneys have attacked the proliferation of surveillance cameras in Tampa Bay only to find that the den of crime known as St. Petersburg Florida recently launched its own fancy Armored Surveillance Van with multiple video cameras aimed against it’s citizens, presumably to quell their hidden criminal impulses and to enjoy a bit of eavesdropping. One wonders how this might be necessary when recent FDLE crime statistics proclaim that violent crime in Florida and in the Tampa Bay area is down.
|Van’s View: St. Petersburg Mayor & Police Chief
The Chief of Police for the St. Petersburg Police Department and the mayor of St. Petersburg want to place the vehicle in ‘high crime areas’ where it will record everything that happens twenty-four hours a day. Somehow that doesn’t seem fair. Shouldn’t we first protect our esteemed leaders?
Since our city elders are more concerned with possible crime than protecting the privacy rights of their citizens perhaps the van should first be parked in front of their yards as a beautiful and beneficial upgrade to their neighborhoods using facial recognition software to properly detail that their lives are not criminal. And as they drive to work why not let the surveillance vehicle follow them shrouding them in the warm glow of its protective video cocoon while recording their every activity so that we can all enjoy the Big Brother benefits that comes from taking away the privacy rights of others.
Most things have changed for the better since the Pony Express delivered fast mail, but at least back in the day the mail delivery system was safe from the prying eyes of the Government if not from an occasional robbery. Clearwater Criminal Defense Attorneys are concerned to find that under antiquated Federal laws our email and internet privacy rights are not protected from Government inspection and intrusion.
|Pony Express Stamp, 1860
Under the Electronic Communications Privacy Act of 1986 emails older than 180 days are not protected from Government intrusion because the email is considered abandoned. Once emails are considered abandoned any law enforcement agency can gain access to personal emails with a mere subpoena.
There is no requirement for law enforcement agencies to obtain search warrants for any emails over 180 days old stored on an internet server nor stored in the cloud. Therefore there’s no Judicial oversight over investigators who may abuse their subpoena power with impunity.
In 2011, The New York Times ran “1986 Privacy Law Is Outrun by the Web,” noting:
Last year, for example, the Justice Department argued in court that cellphone users had given up the expectation of privacy about their location by voluntarily giving that information to carriers. In April, it argued in a federal court in Colorado that it ought to have access to some e-mails without a search warrant. And federal law enforcement officials, citing technology advances, plan to ask for new regulations that would smooth their ability to perform legal wiretaps of various Internet communications.
In Tampa Bay, Florida local police agencies such as the Pinellas County Sheriff’s Department have trampled on our privacy rights by using secret surveillance cameras, Deputies posing as utility workers to falsely gain entry into homes and obtaining evidence then faking subpoenas. Can Tampa Bay law enforcement agencies be trusted to make fair investigative decisions without any Judicial oversight?
Clearwater Criminal Defense Lawyers and every concerned citizen should demand that the Electronic Communications Privacy Act of 1986 be amended to protect not only emails but internet use and cell phone use from inappropriate Government searches conducted without a Search Warrant.
Clearwater criminal lawyers have long been wary of eyewitness misidentification during criminal trials. Often jurors place far too much confidence in eyewitness identifications despite studies which have shown that misidentification is the leading cause of wrongful criminal convictions in the United States.
The Florida Supreme Court yesterday laid out new jury instructions which should help jurors in making proper evaluations of eyewitness testimony. Press Reports note that Florida Criminal juries will be told by the presiding Judge at the end of each case to take the following factors into consideration:
|Joseph Ducreux, Discretion, 1790
…whether witnesses are of the same race or ethnic group as those they are identifying, how familiar they are with people they are identifying and whether they relied solely on their own recollection or have been influenced in some way….
To consider the capacity and opportunity of a witness to observe a suspect including length of time, lighting and distance. Jurors also will be told to consider how much time has gone by since an event before identifications are made and any inconsistencies by witnesses.
Although criminal juries won’t be directly warned about proven failures of eye witness identification nor given methodical guidance, this is a long step in the right direction and should serve as a model for other states.
Clearwater criminal attorneys will not only always be permitted to make arguments at trial against eyewitness testimony, but those arguments will now be supported by the jury instructions in all Florida criminal cases.
Clearwater Criminal Defense Attorneys are often asked interesting questions such as the following one:
|Van Gogh Guilty of Self Portrait, 1886
I made a stupid mistake in breaking the law in Pinellas County. Without going into the circumstance there’s a high likelihood that I’m going to soon be caught.
Since this happened it’s all I think about night and day. I haven’t been able to sleep for days.
I’m afraid that the police will arrest me while I’m at home or worse while I’m at work and I’ll be fired. Will the police let me know if there is an arrest warrant for me before they arrest me? If they’re eventually going to arrest me anyway, should I turn myself in and confess to the crime? Would that give me a better sentence?
You have a choice of either confessing the criminal act to the police or gutting it out by waiting for the likelihood of an arrest warrant to be issued and eventually served.
If you confess before a search warrant is issued, your lawyer can ask the Judge for a lower sentence because you showed remorse and acceptance of responsibility for your criminal conduct. But the Judge in determining your sentence will still take the Florida Sentencing Guidelines and Florida Scoresheets into account balancing the need for punishment with your remorse.
Also, the Judge would take the type of criminal conduct into account, not reducing your sentence if it was a crime of violence, a sexual crime or a crime with a minimum mandatory sentence.
Finally, there’s no guarantee that the Judge will reduce your sentence even if the Tampa Bay police and prosecutors tell the judge that a reduction is appropriate, though the benefits of confessing may include a reduction in the number of charges filed and getting this off your chest might be the first step in getting your life back.
Press reports have noted that how Pinellas County arrest warrants are served needs to be reviewed because Pinellas is one of the few large Florida counties where there is no longer a special unit to serve outstanding arrest warrants.
Clearwater Criminal Defense Lawyers use FDLE’s Florida wanted persons warrant check to find out if an arrest warrant has been issued for a client; you don’t need to hire an attorney to check it yourself daily. If there is a warrant out for you, then you can turn yourself in before police serve the arrest warrant by calling the local Tampa Bay Police Department that issued the warrant.
Many years ago when I was a Prosecutor in Florida, I received an unusual call from a local Judge who had an excellent reputation. The Judge said he was the victim of a crime. He didn’t want it to be public. He asked if I would draw up an arrest warrant based on his statement and submit it to another Judge.
I understood that even those who are a direct part of the Florida Criminal Justice System often don’t have a full grasp of the role others have within the system.
What I told him was this – every victim of a crime must first go thru the police, they’ll investigate, then a prosecutor will be randomly assigned to your case, otherwise the entire prosecution will be tainted because it began in a questionable manner.
|Caravaggio, David or Shirtless FBI. 1609
I thought of that Judge’s call during the recent email scandal enveloping the CIA and the American Military. The scandal began as all good scandals should, right here in Tampa Bay, Florida. But when a local ‘civilian liaison’ to the Air Force base complained to a friend in the FBI (a friend on good enough terms with her to have emailed shirtless pictures of himself to her) about possibly harassing emails the FBI agent seems to have forgotten how the Criminal Justice System in America should work.
Clearwater Criminal Attorneys familiar with how the FBI typical operates in the Middle District of Florida are surprised that a Federal investigation could be initiated as press reports have described.
Here is what he should have told his friend about how the criminal justice system works not unlike what I said to that Judge so many years ago:
1. He could not be objective. Because he had some kind of friendly relationship with the victim his involvement should have ended immediately upon telling her with whom and how to make a proper complaint.
2. Although using the internet for harassment by sending threatening messages may constitute a federal crime, the FBI rarely if ever initiates investigations for such low level crime, but would file the charge incident to other larger offenses such as Conspiracy to Traffic in Cocaine or Complex Scheme to Defraud involving millions of dollars.
What seems to have happened is that an FBI agent forgot about the need to be objective, instead launching a bulldog Electronic Surveillance for a friend, without considering the loss of privacy that investigation could cause to others. His failures in good judgment have done more to destroy American defenses than any actual spy network, something which should cause real concern within the Government.
Clearwater Criminal Lawyers urge agents at the FBI to remember that investigations and security concerns must always be balanced with our constitutional rights to privacy.
|Arcimboldo, Fire, 1566
What would you do while waiting for firefighters to arrive as a fire attacks your home? You’d likely do exactly what a Tampa Bay Florida man did recently when he tried to stop the fire at his home from spreading to other homes by dousing it with a hose as he waited for firefighters.
Clearwater Criminal Defense Attorneys would agree that you have a right to defend your home from fires.
Maybe home owners should also have the right to defend their home from overzealous Pinellas Park Officers. Rather than help put out the fire, the officers bravely shot the home owner trying to stop the flames with a taser as described in press reports as follows:
“It was wrong… I was fighting a fire. I wasn’t fighting police. I thought they were here to help me. Instead, they hurt me.”
Police said they can sympathize with the stress Jensen was under; however, he put himself and officers in danger when he refused to back down from fighting the fire.
Clearly neither the man nor the officers were in immediate danger as he hosed down his home. In fact hosing the house reduced the danger to the officers and to the neighbors. The officers knew they were not witnessing any crime such as arson, so in Florida the man could lawfully resist the officers as long as he used no violence.
Without any immediate danger the officers were attempting to exercise authority which they did not have. No one must obey an officer who acts outside of his authority. But even if the officers believed there was danger and had acted within their authority to stop the man from hosing his home, use of a taser in that situation was far more force than was required under the circumstances.
There have been 65 taser deaths in Florida caused by law enforcement officers, whose job should be to defend us and our homes. Clearwater Criminal Defense Lawyers would argue that using a taser on the homeowner was irresponsible; the officers should be trained to use this dangerous weapon only against violent criminals when there is no other reasonable option.