FLORIDA JUDGE RECONSIDERS HIS ORDER TO SEIZE JUROR’S COMPUTER USED DURING FEDERAL TRIAL

Although one important goal of the criminal justice system is finality, your favorite Clearwater Criminal Defense Lawyer would argue that the most important goal of a criminal trial is that it be fair. 
A federal judge in the Middle District of Florida in Tampa issued an ex parte order last week directing the Marshall’s office to seize the computer of a juror. 

Renoir's famous painting of a couple in the theater box is not unlike two jurors searching for evidence in Tampa Bay, Florida where a federal judge wants to make sure a drug defendant's guilty verdict was fair despite a juror who made google searches during the trial.
Renoir, Jurors Seeking Evidence

The juror apparently told news sources that during a criminal trial for Trafficking in Cocaine of reggae star Buju Banton, she inappropriately looked up information on the internet. The verdict against the rapper was guilty and the never resting Defense is seeking a new trial, with one hopes, a jury without internet connectivity.
Clearly if any internet information was used by members of the jury before or during jury deliberations, then the Defendant may not have received a fair trial. 
One wonders if spreading cellphone technology with ready access to the internet will make fair criminal trials impossible in the future. 

The federal judge recanted his decision on seizing the former juror’s computer based on possible juror misconduct after argument from counsel according to press reports:

The Judge changed his mind after a prosecutor questioned whether the order, which was made during a telephone conference between the judge and lawyers in the case, had adequately addressed privacy and due-process issues.

Defense counsel for Banton contends that the jury was swayed by the juror and information she obtained through Web surfing to convict Banton instead of acquitting him.
…In an exclusive interview the Juror allegedly stated that she researched some issues in the case during trial so that she would be ready to deal with them during deliberations. She said: “I would get in the car, just write my notes down so I could remember, and I would come home and do the research,” the newspaper reported in October.

It’s ironic that federal prosecutors addressed privacy and due process issues to the Judge to solidify their conviction, as they’re more apt to trample these bastions of liberty. Yet more ironic perhaps is that the Defense seeks the computer files thru any means necessary. 
Ultimately the Court made a better decision in requiring that the Juror appear before him in a week and to come armed with the computer so both sides can have an opportunity to have experts examine the google searches made during the trial.
Unhappily these confounded Judges are still somewhat unwilling to have folks reading this blog during jury deliberations. From my experience in Federal Trials your Clearwater Criminal Attorney has no doubt that the entire jury panel was repeatedly cautioned by the Judge to make their decision based only on the information provided by the lawyers or the Court during the trial as this insures the certainty that the Defendant receives a fair trial based on the evidence and the applicable federal law.

 

THE GOVERNMENT PURSUES CHILD PORNOGRAPHY CASES WITHOUT PROOF OF ANY OUTLAWED IMAGES

Clearwater Criminal Defense Attorneys often find that Child Pornography cases are among the most difficult cases to successfully defend. If outlawed pictures are found on a Defendant’s computer the Government’s burden of proof is very low. By the very nature of these cases no victim contact need be proven and the amount of prison time established by the Federal Sentencing Guidelines is often greater than it would be for actual child molestation. In fact the Government need not establish that the Defendant actually looked at any picture as mere possession of the image on the computer hard drive is sufficient for a conviction.  

child pornography can often lead to more time in prison than child molestation in tampa bay, florida
Van Gogh, Schoolboy, 1888

Yet even when the Federal Government can’t find any outlawed pictures on a computer that hasn’t stopped them from pursuing criminal cases. 
Barclay Johnson, defense attorney in the District of Vermont sent me a new Motion to Suppress in Child Porn prosecutions based on challenging the software used by the Federal Government to snare users of peer-to-peer networks using outlawed images. Here’s an excerpt from his email concerning the Motion to Suppress based on problems with the search warrant:

Government agents used to use an enhanced version of a peer-to-peer program to conduct key-word searches in an effort to find suspect outlawed child pornography files. Using the peer-to-peer program the Government would download files directly from the Defendant’s computer/IP address. However, recently the Federal Government began using a new software program to match secured hash algorithm values of files on the network with hash values of known child pornography in the Government’s database. 

What concerns a Clearwater Criminal Lawyer is the due process violations for Defendants when Government Agents are no longer actually downloading the files from a Defendant’s computer, but relying only on the match between the hash values to establish probable cause. Yet many Government Agents may be misleading Judges into signing incomplete Search Warrants when the Agents’ sworn affidavits fail to accurately depict the fact that they are merely matching hash values rather than having any direct knowledge that there is likely to be outlawed pictures on suspects’ computers. 

DUE PROCESS IN CRIMINAL LAW REQUIRES A FAIR PROCESS BUT DOES NOT GAURANTEE A FAIR RESULT

It’s not unusual for Clearwater Criminal Defense Attorneys to be asked about fundamental fairness in criminal justice as this recent question illustrates:

due process means getting a fair trial not a not guilty verdict at trial in Clearwater, St. petersburg, Largo & Tampa Bay, Florida
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.

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.

CLEARWATER CRIMINAL COURTS IN PINELLAS FLORIDA WILL SOON ALLOW MORE WITNESSES TO BE QUESTIONED AT TRIAL

One of the fundamental pillars of justice in America is that the defense is entitled to evaluate all testimony at trial thru the process of cross-examination. The constitution guarantees that “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.” This is known as the Confrontation Clause (which tho we are near Christmas has little to do with the Clause known as Santa).

For many years the Supreme Court allowed prosecutors to present evidence in an indirect manner which avoided the necessity of having witnesses confronted at trial, filtering even to our Criminal Justice Center in Clearwater Pinellas County, Forida where lab reports were found to be sufficient without testimony. However, the Supreme Court has begun to shift in favor of Defendant’s rights to cross-examine witnesses especially where expert witness testimony is proffered thru reports rather than with the actual witness at trial. Interestingly for your favorite Pinellas Crime Lawyer & Supreme Court Spectator, it seems to be driven by the conservative wing of the Court.
Part of the underlying reasoning for this shift as earlier entries in this blog have shown is the failure of Government forensic laboratories to give unbiased results.

The Confrontation Clause of the Sixth Amendment is a focal point of recent litigation. See Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); Melendez–Diaz v. Massachusetts, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009); Bullcoming v. New Mexico, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011).  Listen to arguments of the case, see also for more Supreme Court audio arguments.
The Court’s opinion in Williams v. Illinois, argued December 6, should be announced soon: Is it a violation of the Confrontation Clause to allow an expert witness to testify about the results of DNA testing conducted by another analyst who has not appeared as a witness at the trial.          
The First Circuit recently vacated a conviction over lack of confrontation (Ramos-Gonzlez)… In this cocaine case the government adds substitute chemist Morales to the witness list shortly before trial.  Morales is called by the government testifying to the work of the previous chemist as the prosecutor failed to have Morales do his own testing… The Court stated that, “Morales’s testimony was neither cumulative of nor sufficiently corroborated by alternative evidence, and it comprised the only compelling basis for the jury to conclude a critical element of the government’s case—that the substance seized from the truck was cocaine. We cannot conclude that the presence of cocaine would have been proved without the testimony of Morales, and therefore the admission of his testimony was not harmless beyond a reasonable doubt.” 

WHO KNEW? BEING POOR IS NO LONGER A CRIME IN FLORIDA SAYS OUR SUPREME COURT!!

The Florida Supreme Court recently held in Del Valle v. State that before a Judge can revoke probation and incarcerate a Defendant for failure to pay, the Judge must first make inquiry into the Defendant’s actual ability to pay. Even your favorite Clearwater Defense Attorney is heartened that being poor is no longer a crime in Florida.


The Judge must determine in a hearing: Did the Defendant have the ability to pay or did the Defendant willfully refuse to pay. Under Florida law, the trial court must make its finding regarding whether the probationer willfully violated probation by the greater weight of the evidence. The Judge must do this in a hearing where the Defendant can provide evidence because an automatic revocation of probation without evidence presented as to ability to pay to support the trial court’s finding of willfulness violated due process.  Although it is constitutional to place the burden on the Defendant to prove his inability to pay, the aspect of section 948.06(5), Florida Statutes, that required a Defendant to prove his inability to pay by the heightened standard of clear and convincing evidence was unconstitutional.
Probation reduced by Pinellas Crime Attorney
Bar Journal Article on clear and convincing evidence
Excellent Discusion of State v. Del Valle as affecting State v. Adkins
Public Information – Oral Argument
It’s far better to be poor in Clearwater, Florida than rich in England… at least in Tampa Bay there’s much more sunshine.
Old Beggar, 1916, by Louis Dewis, painted just outside his clothing store in Bordeaux, France.

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