Not Guilt nor Innocence But Getting the Best Possible Results

What can someone do to find the best results in a criminal case in Florida if there’s overwhelming evidence of guilt? In one way or another I’m often asked this question by someone charged with a crime. Yet the corollary question from folks not facing criminal charges is something like this – how can you represent someone who is guilty or how can you represent someone when you know there’s ample evidence of guilt?

Sign: For the Best results don't do anything stupid

Each question goes to the heart of being a criminal defense lawyer in Clearwater. Our criminal justice system is based on English common law in which defense counsel has an ethical duty to zealously fight for his client. The guilt or innocence of my client does not drive my obligation, rather it’s finding the best result.  When lawyers fail to give the best defense possible in every case, they fail not only their clients, they cheat justice. For justice to succeed the judge and prosecutor’s expectation from the defense should be nothing less than the forceful presentation of every fact in mitigation linked with every scenario of possible innocences.

The goal I set out for myself in every criminal case I agree to handle is to find the best possible results. Otherwise I make no promises. Achieving those results requires more than knowledge of the facts and law, it means pestering the very hell out of prosecutors and judges until they’re sick of hearing from me. And it means hard work, dedication and preparation not only from me but from my client. Clearly, that’s what good defense lawyers and their clients should be doing in every criminal case to obtain the best results – results that are worthy of our hard work

If the best results will be found by going to trial, then let’s pick the jury. If the evidence makes going to trial a foolish exercise in futility, then let’s persuade the prosecutor to be reasonable by reducing the charged offense or getting an offer that won’t ruin my client’s life. If the prosecutor has tunnel vision and won’t be reasonable, then let’s go to the judge. There’s never one immediate answer as every criminal case is different. But the goal is always the same – find the best results.

So how can I represent someone that I know is guilty? I’m not the prosecutor, nor am I the judge. It’s the prosecutor’s duty to pursue guilt, to build the case, demonstrate the evidence and win a conviction. It’s the judge’s duty to sit in solemn judgement by finding a fair sentence if guilt is established. And it’s the juror’s duty in deliberations to make a choice of guilt or not guilty based only on the evidence presented without bias, prejudice or hatred.

In years of practicing law I’ve seen prosecutors, judges and jurors make the foolish mistake of abandoning their true responsibilities. But it doesn’t matter, because I know my responsibility is to my client finding a way – no, finding every way – to get the best possible result.

New Federal Criminal Investigation & Arrest Goals In Florida

A few days ago Lee Bentley, the acting chief of the U.S. Attorney’s Office in the Middle District of Florida, gave a remarkable speech outlining the goals, aspirations, new developments and criminal investigation commitments for his federal prosecutors over the next few years. This is important information for every criminal lawyer and especially for their clients who may be facing federal charges, federal investigations or federal grand jury indictments in the Middle District of Florida an area which encompasses such cities as Clearwater, St. Petersburg, Tarpon Springs, Dunedin, Safety Harbor and Pinellas Park even though the federal courthouse is located in Tampa.

Seeking Justice from Federal Prosecutors

Seeking Justice from Federal Prosecutors

Although federal indictments may be thought to originate from federal grand jurors who meet on Tuesdays at the federal courthouse in Tampa to examine evidence and testimony of possible federal unlawful conduct, never forget that any possible charges always originate not with a federal grand jury but with the federal prosecutors and federal agents who actually have responsibility to present the cases. It is the federal prosecutors who determine when or if cases move forward and whether those cases will lead to a federal indictment. It’s often been said that a federal prosecutor could indict a ham sandwich if so desired, but that’s not true in Tampa. It’s much more likely to be a fresh toasty hot cuban sandwich they’d enjoy indicting.

So how did I find out about the chief prosecutor’s speech? My contact, let’s face it, my mole within the prosecutor’s office is a gaunt, pale, exhausted intellectual fugitive of his own Justice Department who hates his disheveled little office with it’s old pentium Gateway, yet despises going into federal court where things can get ugly fast even more. He asked that I neither give him up as the source for this post, nor to divulge my means of payment for this exclusive information. So I’ll only suggest that the evidence was eaten and therefor stands free from threat of future federal indictment.

The following is the gist of the priorities for the U.S. Attorney’s office in the Middle District of Florida:

1. Simple drug cases will be handled by state rather than federal prosecutors. This makes since as all too often the federal drug sentencing guidelines result in an unfairly harsh sentence. Further, at least the State of Florida is using drug court as a solution to free people from addiction while not branding them for life as criminals. In Pinellas County the drug court judge does her best to make sure people make it thru the program rather than being sent to prison.
2. Major Drug Trafficking cases such as the Panama Express cases from the coast guard will still be handled by federal prosecutors. The federal prosecutors, DEA agents and FBI agents have the means to successfully prosecute these major complex drug conspiracy cases that would present difficulties to state prosecutors.
3. More financial fraud cases not involving mortgage fraud will be handled by federal investigators and funneled into the purview of the U.S. Attorney’s office. Clearly fraud cases involving sums of loss over a million dollars will be a specific target for federal agents and prosecutors to justify their increase in funding even as the Federal Public Defender’s Office is cut.
4. More medical fraud such as medicare and medicaid fraud will be investigated by federal agents and taken to the federal grand jury in Tampa. A recent report established significant government monetary losses due to doctors allegedly over-billing the government and insurance companies. Many otherwise law abiding doctors, administrators of medical offices and their staffs will now be exposed to federal criminal indictments, search warrants, investigations and arrests. Further, they will be pushed to the wall to quickly plead guilty and co-operate against co-defendants or find themselves charged with additional federal criminal charges such as conspiracy, mail fraud, scheme to defraud, grand theft and giving false information to a government agent.
5. Seventeen new assistant United State’s Attorneys have been hired, eight of whom will be working exclusively on new federal criminal cases while two will be working on criminal appeals.

Although it wasn’t mentioned in the speech, it’s also known that federal Firearm indictments are being ramped up.

Over the next two years the recalibration of the objectives of the U.S. Attorney’s office will result in more federal criminal investigations, federal grand jury indictments and federal arrests in the Tampa Bay area. In many of these cases there will be little if any indication that you or someone you care about is under federal investigation. In some cases the federal prosecutor may send what is known as a Target Letter, which lets someone know that he or she is the target of an investigation. Either way it’s always important to find a federal criminal defense lawyer as soon as possible to make sure you obtain the best possible results.

Florida Supreme Court Stops Unlawful Police GPS Cellphone Tracking

The Florida Supreme Court stood up for the constitutional rights of every Floridian by finally stopping unlawful police use of a suspect’s cell phone tracking capability. New technology allows our government to track our location without our knowledge.

Now Cary Grant can use a phone again.

Now Cary Grant can use a phone again.

Here are some of the significant facts of the case. Florida police got a tip that the defendant was moving large quantities of drugs around Florida. Based on the tip and little other information detectives persuaded a judge to give them a warrant (known as a PIN warrant) to have access to all phone calls made to and from the defendant’s cell phone.

But the police went far beyond the warrant by making use of the cellphone to access the defendant’s constant movements using his cellphone as a real time GPS tracking device. No reasonable person could believe that the government would be intruding on privacy in such a way, yet in Florida law enforcement often goes far beyond what is reasonable. In the Tampa Bay area police have even gone to the extreme of setting up secret videos to swipe tag number information near legitimate hydroponic stores and police officers committing crimes such as armed trespass to gain information or officers lying about smelling marijuana to gain entry into homes without first persuading a fair-minded judge of the necessity of a valid search warrant.

Underlying the court’s decision is the notion that it’s unreasonable to expect Floridians to have to turn off their cell phones or to wrap their cellphones in aluminum foil in order to be certain that their real time locations are not being monitored by law enforcement. After all, each of us should be able to maintain some expectation of privacy. The Court threw out the large brick of cocaine that was unlawfully seized as evidence.

In the future warrantless GPS tracking in Florida will lead to evidence being thrown out by Florida Courts. Will officer’s abide by the new cell phone requirements? It’s not inconceivable that some law enforcement officers will gather inappropriate tracking information anyway and then try to justify arrests based on other information that was not actually useful in making the arrests. Courts will need to deal harshly with these officers. As citizens we must demand that officers follow the law or find some other way to make a living.

When there are cases where the government needs tracking information about a person’s location in real time, for example in preventing a terrorist attack, then the government will need to submit the need to a judge. The judge will require more than just a mere tip. The judge will want specific reasons why law enforcement believes the suspect is breaking or about to break the law. Persuading a judge that GPS tracking should be allowed should be a difficult burden if we are to live as free citizens in the future.

Remember that the criminal law in Florida is constantly changing. In Florida these issues of when a search warrant is required have been bubbling up for the past few years with appeals courts often in disagreement. It’s important in every Clearwater criminal case involving a search, a stop, an arrest warrant or a search warrant to have a criminal defense lawyer examine the facts as well as the prevailing Florida criminal law to make certain that your rights have not been violated.

Why Hope and Courage Create Better Outcomes in Florida Criminal Cases

The most important factor in the resolution of any criminal case is not the lawyer, the judge nor the prosecutor. Though many lawyers driven by oversized egos would have you believe otherwise. They’d have you think it’s their ability alone that directs a case.  Yet as often as not the facts of the case and the applicable law direct their counsel to clients.

Courage & Hope to never give up.

Courage & Hope to never give up.

Many prosecutors walk into court detemined that their veiew of guilt will prevail in the end. Certainly under harsh sentencing guidelines, Florida prosecutors with some justification often believe they harness decisive power.

Still no matter what prosecutors or defense lawyers say or do, it’s only the sentencing judge who has the final say in every Florida criminal case. Even when the solemn jury finds a verdict of not guilty, the verdict itself is without merit nor meaning until the judge ratifies, approves and finally publishes the jurors’ action by lifting the veil of possible guilt in officially setting the defendant free on the record in open court as by example under common law since time memorial. Yet the judge with power over the lives of so many people still is bound by the law, by the appeals process and by Florida sentencing guidelines.

So if the defense lawyer, the prosecutor and the judge have limited roles in sentencing outcomes, who is it then who has control of the destiny of each defendant? After thirty years of practicing criminal law as a criminal defense attorney in Pinellas County, Florida I have no doubt as to where the real power for the best possible outcome in every criminal case resides. It comes from within the heart of the accused. Does the accused have the courage and hope to successfully climb the mountain of adversity to reach the summit of the best possible results?  Or will the accused simply give up, the long, steep climb never attempted?

Sometimes the necessary hope and courage comes from religious faith, often it comes from the way these folks who aren’t easily intimidated face life. I’m not suggesting that facing an arrest or an indictment is ever easy. Nor should one sleep walk thru the criminal justice system. But to face a criminal case with success you better be strong, smart and savvy.

When I take on a new client I’m looking for attributes that will make a successful resoltuion of the case more likely. Is my client capable and willing to summon every bit of inner strength to gut it out, to focus on the case from a position of strength not weakness and to do every thing possible to move forward?

Often even as early as at the first meeting I have an idea of what the final resolution of the case is apt to be not merely because of the applicable criminal statutes and the pertinent facts of a case, but by the scope of hope and courage displayed. Anyone confronting the American criminal justice system must reach deep within finding the hope and courage to find justice. I can’t promise you that it will be easy. In fact it will be a long difficult journey. But if you undertake this task, by the end of it you’ll not only find the you’ve achieved the best result but that you’re also a braver, stronger, better person. If you can find that courage to move forward with hope, I’m prepared to help you make your successful journey.

How a $48,000 Florida Grand Theft Resulted in No Prison Time

You don’t necessarily have to be the Governor to avoid a long prison sentence, but becoming Governor certainly helps if you’ve committed a notable grand theft here in Florida. Yet it’s possible to avoid prison even for a significant Grand Theft without the burden of running for office.

Fingerprints at Booking

Fingerprints at Booking

A recent client was charged with a Grand Theft that occurred over a period of three years in Clearwater, Florida. During that time $48,000 was taken from the victim. The evidence was unfortunately abundant. Not only had my client confessed, but there were multiple instances of forgery with the proceeds going directly her. After negotiations with the investigating detective it was agreed that my client would avoid arrest by turning herself in. At booking her bond was made ready and after a couple of hours of being processed, fingerprinted and photographed at the Pinellas County Jail she was released.

However, the charges were significant and could easily trigger prison time. She was charged with Grand Theft and Scheme to Defraud. It was essential to first make every effort to persuade the state attorney’s office not to file either the Grand Theft or the Scheme to Defraud charge as the combined scored total based on the dollar amount of the theft would drive up the Florida Guideline range. In fact, the Florida guidelines mandated a sentence of Florida prison. The prosecutors agreed to not file the Grand Theft and to file only one count of Scheme to Defraud which is a second degree felony. This not only meant that my client would be unable to have recourse to Pretrial Intervention despite having no previous criminal history but that there would be an adjudication of guilt and worse a very high likelihood of a long prison term. This was troubling in that it would be difficult enough for her to find work again without spending time incarcerated.

Clearly, the objective had to be to use whatever leverage necessary to persuade the prosecutors and the judge to first give my client no jail and second to give her a withholding of adjudication. In any criminal case the most effective means of leverage is to find multiple weaknesses within the framework of the criminal charges. But here there was not only a confession to the crime, but multiple examples of easily provable forgeries. Further, if the case was taken to trial and we lost it would likely result in jail, because the charges that were not filed would be filed again by the prosecutors. Other than using weakness in a Grand Theft case, the best next source of leverage is persuading the victim that jail time is unconscionable.

Under Florida law a judge may go under the Florida Sentencing Guidelines for a limited number of reasons. One of the most effective reasons to go under the guidelines is establishing that the victim will receive restitution. Here the victim was willing and able to pay restitution. Based on the restitution being payed the victim agreed to no prison time as well as to a sentence with a withholding of adjudication so that the defendant would have an opportunity to more easily find a job. But how could the state give a withhold of adjudication on a second degree felony Scheme to Defraud case?

At the sentencing the prosecutor amended the information to a Grand Theft in the third degree. After careful deliberation and after speaking to a representative from the victim on the record to be certain the restitution had been met, the judge agreed to a sentence giving my client a fresh start on life. Even after a huge mistake it’s possible to avoid prison time in Tampa Bay, Florida.