To my surprise in a recent drug sentencing in the Middle District of Florida the Tampa federal Judge reduced the offense level by two based on Attorney General Holder’s recent comments about the need to reduce the amount of prison time in federal sentencing. Though reluctant, there was no objection on the record from the Government.
|Avoiding Jail is Justice’s Goal
For the most part the federal judges and prosecutors in the Middle District of Florida have shown very little inclination to give downward levels at sentencing on what the Federal Sentencing Commission or Congress may do in the future. Yet
My client was charged with possessing a significant amount of steroids and marijuana found incident to a search warrant. After reviewing discovery and discussing possible defenses, he acknowledged his guilt and accepted responsibility for his actions upon signing a plea agreement. The plea agreement noted that the Government would have no objection to a sentence being given in the low end of the guideline range.
Yet because of the large quantity of steroids and marijuana as well as a significant prior record the expected federal guideline range appeared to be well within in zone D with a likelihood of at least 12 to 18 months in prison.
The following facts provided the judge better options under the federal guideline range to allow my client to receive a time served disposition at sentencing.
First, my client’s successful and timely proffer resulted in the Government filing of a 5K motion for substantial assistance. Some times the Government fails to file the motion despite what I believe is excellent cooperation. Here my client never stopped cooperating from the moment of his initial arrest. The assistant U.S. Attorney asked for a two level reduction in sentencing. The Court granted a three level reduction upon hearing testimony from the Government agent about the extraordinary cooperation of my client.
Second, based on Attorney General Holder’s speech the night before the sentencing the Court entertained a motion to reduce the sentence by two additional levels due to the likelihood of future federal Congressional action or action taken by the Federal Sentencing Commission at the behest of the Justice Department. However, the Defendant was asked on the record by the judge to agree that he would not ask for another two level reduction if Congress passed such a law though he could ask for a further reduction if Congress passed a law with more than a two level reduction.
Third, we established that on his own volition my client had enrolled in a halfway house while being free on a signature bond while awaiting trial or plea. We asked the Judge to consider the time in the halfway house as 157 days of time served in jail while awaiting sentencing.
The three level reduction for a successful 5k proffer combined with the two level reduction for the Justice Department’s future legislative goals were sufficient to bring my client from sentencing zone D to sentencing zone B. In zone B the judge has much more discretion to give a fair sentence. The judge gave credit for the time served by my client in the halfway house. Ultimately the judge sentenced by client to time served.
Although things went fine for my client in his case, the Justice Department should act quickly to push the necessary changes thru Congress with help from the Federal Sentencing Commission so that every defendant will have sentencing parity no matter where in the country their drug indictments originated. The goal must be to limit over-incarceration in nonviolent federal drug cases by giving federal judges more sentencing discretion.
It was revealed today that a $5,000 pair of shoes signed by local celebrity Hulk Hogan was stolen from his fancy beach store. It was also revealed that during the theft, possibly in a ruse to divert attention, a statue of Hulk Hogan was shattered to pieces. Oh, these are desperate times in Tampa Bay, Florida, yet of one thing we may be certain, Hulk Hogan was not in the store at the time otherwise the perpetrator would have been bagged and body slammed.
|Charlie Chaplin eats his Shoe
If the culprits are captured and charged, what is a fair way to assess the value of the stolen shoes? In Florida a third degree grand theft charge can be levied for any object valued at $300 or more, if less than $300, then the appropriate charge would be a misdemeanor petit theft. What if something of even greater value had been taken from the store such as Hulk Hogan’s bandanna rather than just an old pair of his signed shoes? If the value of the bandanna was more than $20,000 then the theft would be assessed as a grand theft second degree felony.
The higher the offense charged the more likely it is that jail will be ordered as punishment. And as you can see by how the charges are defined, it is the value of the property stolen that often dictates whether a case is resolved with or without prison time in Tampa Bay Florida.
Yet the fact that Hulk Hogan’s beach store sells his signed shoes for $5,500 doesn’t necessarily mean they have an assessable value of $5,500. In fact, the thief may have thought the value so absurd that the shoes were taken as a joke. Value is more than what a victim says it is. The investigating officers and the Pinellas State Attorney’s Office should look to find a reasonable actual value. One way to do that would be to make inquiry’s from the store as to how many pairs of signed shoes have been sold and if so, for how much. In far too many grand theft cases law enforcement fails to make a complete investigate of value, because their focus is on solving the crime. Also, officers or prosecutors will add further charges such as scheme to defraud in an effort to force defendant’s to plead guilty.
But what about the possible criminal mischief charge against the thief for that shattered statue of Hulk Hogan? Like theft charges, criminal mischief charges are based on value, but with criminal mischief it is based on the actual value of the object destroyed or the value to repair an object. Making a calculation of actual value is arguable and problematic. Is it merely replacement value or is it something more, say the value of the statue to the Tampa Bay community – priceless or valueless? And if the statue of Hogan is repairable there’d still need to be an assessment of any value lost after the repair compared to the value before the destruction.
Recently in Miami, Florida a museum’s pottery piece on loan from China was intentionally destroyed by an art protestor. Upon the vandal’s arrest the investigating officer was unable to ferret out from the museum staff what the actual value of the pottery actually was, so he simply wrote one million dollars in his police report causing sensational international press reports. The actual value turned out to be assessed for much less, but the potter in China must be smiling.
As you can see in grand theft cases as well as criminal mischief cases value is often an elastic notion. It’s important that a lawyer be prepared to exploit value weaknesses with expert testimony in order to have a felony or misdemeanor charge reduced or dismissed based on actual value.
Police car chases should commence only when the risk of harm from the chase is less than the threat of harm from the underlying alleged crime. Common sense has finally prevailed upon the Pinellas County Sheriff’s Office to abandon it’s outdated dangerous vehicle pursuit policies by permitting police chases only when the chases are being used to prevent imminent violent criminal conduct.
|Dep. Fife In Hot Persuit
The new policy allows deputies to pursue vehicles if and only if the following criteria is met:
1. The suspect must have committed a forcible felony.
2. The forcible felony must be categorized as one that actually endangers the public such as an armed robbery, sexual battery, attempted murder or murder.
3. There must be imminent or continuous threat to the public.
Part of the problem with the old rules was that even an infraction such as running a red light could trigger a very dangerous high speed chase if an officer believed that the there was any danger to the public. This led to highly threatening situations caused by the police chase itself. And while citizen’s lives were risked from mere traffic infractions that resulted in car pursuits, many officers were not even giving traffic tickets to officers who violated traffic laws.
Parsing thru the new rules, the goal is to forbid officers from engaging in high speed chases unless there’s an immediate and very real threat to the public. Following this criteria brings some interesting changes to actual police conduct. Bad driving alone will no longer be sufficient cause to give chase unless the driving itself of great public danger. Also, there will be no high speed vehicle pursuits for nonviolent crimes such as grand theft or stealing an officer’s hat under the new rules.
If these rules are followed in Tampa Bay the number of active police pursuits should decline. But so far other police agencies have not made effective changes to their agency’s police policies. For example, the St. Petersburg Police Department pursuit policies have endangered lives even when the underlying felony is not violent. All of the Tampa Bay agencies should adjust their pursuit policies so that only suspects who are believed to have committed violent acts are pursued in high speed chases. For leading by example the Pinellas County Sheriff should be commended.
Across American police officers routinely lie during interrogations in order to bully suspects into making damning admissions. The sordid goal is not to find the truth, but to find further evidence to guilt.
|Officer Pinocchio lies to suspects.
For example, officers may lie about forensic evidence, asking why fingerprints match the suspect even when no fingerprint evidence exists.
Officers may indicate that a nonexistent eye witness identifies the defendant or that a co-defendant admits everything and implicates the defendant. This use of false information to ensnare defendants is perfectly legal in most of the United States, yet it is also known to be one of the causes for the high incidence of false confessions.
In many other countries lying to a suspect would be viewed as police misconduct. And when viewed in it’s entirety it’s not much different than the evidence used in Soviet show trials or what might be expected from totalitarian regimes bent on maintaining power.
In England, the birthplace of our common law, the government has restricted officers from using false information to lure confessions. The focus of British law enforcement investigations is to find the truth, not to merely obtain a confession. The British found that lying to defendants merely increased the chances of a false confession.
Instead of lying about facts or playing good cop/bad cop as American interrogators are prone to do, British interrogations seek to find out from the suspect what happened. As the suspect tells the story the officers look for any inconsistencies. If there are inconsistencies, then the interrogation moves forward in an effort to find truth rather than merely find more evidence to convict. Evidence in British criminal cases is gathered and deployed to find the truth of what occurred rather than basing an investigation upon preconceived notions of guilt.
It’s about more than a suspect or target of an investigation merely trying to avoid arrest and prosecution. As a defense attorney and former prosecutor in Tampa Bay, Florida I’ve witnessed many officers freely admit under oath to lying to suspects in an effort to snare a fast confession. One wonders why any juror or judge would believe anything any officer might say after make such a damning admission. Yet what a lying officer is really saying is he’s willing to lie to subvert the legal system. Any police officer willing to lie should find another job instead of bending the framework of truth in the criminal justice system.
That hour you lost in sleep last night might just be worth it, because a study establishes that the extra hour of daylight results in a reduction in violent crime. In fact the crime reduction during that hour of light rather than darkness is significant especially for major violent crimes such as robbery, murder and rape.
|Harold Lloyd Fights Daylight Savings Time
For example, during that well lit extra hour of sunshine there’s a reduction in robbery by 51%, murder by 48% and sexual battery by 56%. Could it be that just like us, criminals miss the extra hour of sleep and so slough off their important work habits during during that lonely hour? No, say our hard-hearted scientist, it’s simply that criminals are more likely to do their work at night while cloaked in darkness.
According to the study Under the Cover of Darkness: Using Daylight Savings Time to measure how ambient light influences criminal behavior, which ferreted out other variables, it is the light itself that reduces the crime rate. Light increases the likelihood of being caught thereby increasing the expected cost of the crime. The study further shows that Daylight Savings saves over half a billion dollars a year in social costs due to reduced crime. And it suggests that it would be a wise investment to improve night time lighting with more street lights.
Since Florida is known as the Sunshine State one would think crime would not even exist here in Tampa Bay. Nor would one readily believe that beach blanket crime could occur on our sunny beaches during tourist season, yet it does and in broad daylight too. Perhaps the problem is that the street lights are turned off during the day.
Anyway, soon we’ll recover our lost sleep. Till then my recommendation for our somnolent Congress is to take that hour away on Monday rather than ruining the weekends by stealing the hour on Sunday. Perhaps the findings of another crime study finding that more iphone muggings occur on Mondays than any other day of the week will help our cause. By reducing the number of hours on Monday crime would be reduced as well.
The Largo Police Department grudgingly apologized for breaking into a home that officers falsely believed was occupied by vagrants. The officers busted down the front door and confronted the law abiding occupants with weapons to investigate the heinous crime of a possible trespassing charge.
|Damn, forgot the Search Warrant again!
It’s very lucky for everyone involved that on one was shot, because the manner in which the officers gained entry was closer to a home invasion than to what one would expect from qualified police officers. Under Florida’s stand your ground law those within the house would clearly have a right to defend themselves from what they believed to be a home invasion. If there had been a shooting, how would the police have explained their obvious disregard of the law and sheer laziness in not first securing a search warrant on the house?
Also, since anyone in Florida can resist an unlawful arrest in Florida as long as no force or violence is used, there would be incentive on the part of the police officers to find a reason or excuse to be there by looking for any unlawful acts. That’s why properly prepared search warrants actually help the police by solidifying the reason they need to go into a home and delineating before a judge or magistrate the evidence of unlawful misconduct the police possess.
Despite an apology to the men living in the home, the Police Department made it clear that it believed it did not really need a search warrant under the circumstances because of the exigent circumstances exception for search warrants. The fact is that investigation of a possible trespass with no other information nor suspicion of wrong doing nor immediate necessity for officer or citizen safety is legally insufficient. If the the leaders of the Largo Police Department don’t understand criminal law, how can the investigating officers be expected to carry out their obligations under the law?
But the police do know what the law entails, they just don’t want the aggravation that comes with respecting search warrant requirements. The truth is that in Tampa Bay, Florida many police departments have made a mockery of the fourth amendment search warrant requirements by using inappropriate tactics such as secret videos, while other officers have committed crimes without being prosecuted. If the police officers knew they should have obtained a search warrant then they were committing at least a trespass and possibly a burglary.
The Largo Police Department routinely and habitually violates the rights of it’s citizens. Those in a leadership position should be punished or new leaders found who will obey our constitution even if they don’t believe in it.
Is golf a game of skill or a game of chance? Having played too many rounds of golf I grudgingly admit that skill may be involved. And if on the witness stand, hand trembling on Bible, I would admit to losing more on the golf course from errant unfound golf balls blitzing into water holes, trees, berms, bushes, golf carts and on one occasion an unfortunate man’s head, than I’ve ever lost thru miscalculating my bets. Most golfers would probably agree.
Golfers have a long tormented tradition of making and taking bets while playing. In fact the reason there are handicaps is to facilitate fair bets between players of differing skills.
|Into the Trap
Florida on the other hand has a long tradition of making private acts of sportsmanship criminal. For example, a few years ago in Clearwater, Florida a friendly small stake poker game being played by retirees was raided by the police. The Poker Five became a nation symbol of Florida’s law enforcement’s absurd priorities and abuse of criminal law.
The Florida legislature responded by making a specific exception to the gambling laws for poker games with small incremental betting, since poker is after all a game of skill, unless you’ve just won the pot from me, then poker is damned ugly game of chance which should be outlawed. Yet despite that law found at Florida Statutes 849, the Largo Police Department recently folded a Texas Hold’em Poker game by arresting folks who were playing for prizes.
So why are Tampa Bay, Florida police officers wasting their time investigating a Tarpon Springs golf course? The Tarpon Springs police department says their investigation of a possible ‘gambling house’ is necessary and proper under Florida law.
The truth is they clearly need to refocus their investigations on actual violations of Florida law. At least they haven’t arrested anyone yet. The prosecutors at the State Attorney’s Office should immediately shut down this investigation and let these duffers play.
When Florida law enforcement officers make a mistaken arrest it’s important to take immediate steps to win back your freedom, your reputation and your future. Here are the critical steps you should take to regain control of your life.
1. Preserve evidence. If there is video, audio or other evidence of the incident be sure to keep the original and make copies. Any discrepancies between the police reports or officer testimony and tangible evidence helps to weaken the state’s case against you.
|Find Evidence of Innocence
2. Preserve witnesses. In a recent felony Battery on a Police Officer case that I handled a cab driver observed an officer from the St. Petersburg Police Department push my client’s head into the pavement, which was far different than the officer’s false allegation that my client had tried to take his badge. Finding this witness and exploiting his damaging testimony resulted in the case being dismissed (no filed) by the Pinellas County State Attorney’s Office in Clearwater.
3. Find corroborating details. Once in an alleged grand theft and burglary case that I handled the defendant happened to have a time dated ATM withdrawal slip which placed him far from the scene of the crime at the time the crime was committed. Had he not had that evidence of a corroborating detail he likely would have been convicted of the crime. Further, I’ve often encountered situation in allegations of misconduct or violations of probations where traffic ticket, pay stubs, work records or business records readily establish that my client is innocent.
4. Find computer, social media or smart phone trails. Most of our lives are now being tracked in countless ways by our computers, social media, smart phones and apps. Within the search structure and query system lay clues that may convict on exonerate you. It’s essential to have computer experts search the content of your devices in search of helpful evidence.
5. Think outside the box. Think of everything that may possibly help you by retracing your steps that day. Place everything that happened on a flow chart by writing every down event and nonevent that occurred that day chronologically. Then fill in the details of each event. You will find further supporting evidence of innocence.
If you’ve been falsely arrested in Clearwater, St. Petersburg or Tampa you should hire the best possible lawyer to ensure that these steps will be followed and that you’re provided with an excellent defense.
Prosecutors would benefit from spending time in the slammer just as judges should spend time in the jail. Time in jail could humanize prosecutors and help them understand that defendants are not much different from anyone else.
While the prosecutor sits in his small jail cell waiting for his beans and stale bread, he could while away the hours listening to cellmates complain of improper police conduct, lack of proper medical care in jail, lack of reasonable jail security and the fact that Florida jails and prisons have become profit mills run by private entities.
Would it change the prosecutor’s outlook on life? Did time in prison change Nelson Mandela, Solzhenitsyn or Mahatma Gandhi?
|Prosecutor: Go to Jail
Every defense lawyer has come across prosecutors who are as thick as bricks in say, treating first time non-violent offenders as if each represented the case of the century. Part of the problem is immaturity, after all many prosecutors are young attorneys in their first job and really are afraid to be anything but tough because they’re not brave enough to argue for compassion. And mixed with this is a powerful self righteousness among many in law enforcement which is a byproduct of the convenient but delusional belief that they’re some breed of avenging angels.
When I was a prosecutor years ago in Tampa Bay, Florida I found that many of the lawyers in the office became intoxicated with the power they were given. It started at the top because the chief prosecutor failed to instill a value system of justice and purpose in the prosecuting attorneys instead dictating a tunnel vision persuading prosecutors to reject any view of innocence despite evidence to the contrary.
He failed to teach them that the true aim of good prosecutors should not be finding ways to win the most jail time but in finding the best possible solutions for victims and defendants effectively addressing the underlying reasons for the misconduct. No wonder the very man that the chief prosecutor trusted to watch over Clearwater prosecutors in drug trafficking cases turned out to be a criminal himself when it was revealed that he traded in sexual favors from defendants facing minimum mandatory prison sentences for reduced prison time corrupting prosecutors and himself.
Some time spent in jail away from the rest of us would give prosecutors a little humility. It’s not unusual for prosecutors to be recent law school graduates, since being a prosecutor confers upon a rookie lawyer immediate trial experience laced with firm knowledge of the criminal justice system. Some prosecutors benefit from the confidence that winning many easy slam-dunk trial brings, while other prosecutors are crippled later in their careers by that early overconfidence and lack of hard work.
A strong defense demands hard work. A strong prosecution demands hard work from law enforcement early in investigation all the way to an arrest, but despite what one might think, not from the prosecutor despite what one would think when hearing a typical prosecutor presenting a case. So a little jail time, say a rainy weekend in jail, might be just enough to bring prosecutors some much needed humility.
Also, time spent in jail would help prosecutors understand what it really means to spend time there. It would help them to properly evaluate which defendants should be best punished with something other than jail. You want my client to spend ten years in jail away from his family for a nonviolent crime such as grand theft. Fine, spend a weekend there yourself first, then let’s talk about your experience and if it’s really the best thing for my client.
Finally, under the law prosecutors are held to a much higher standard than other attorneys. They are sworn to seek justice, not just a guilty verdict. Yet many prosecutors few their job as trying to get the toughest sentence possible. Clearly many prosecutors would benefit from the renewal of a true sense of fair play and justice by learning what jail really entails, making it less casual and more difficult to send others to prison because of the knowledge of what wasted time in prison really means.