Florida Criminal Law Blog

Often times it is necessary, in the right type of case, to contact the victim/witness to simply to develop a relationship with them and obtain their version of events. In some cases where the evidence of guilt of the client is overwhelming it may be wise to make amends on your client's behalf. In some instances an offer to pay restitution immediately may have a positive effect on your client's case. (An offer to pay restitution or an apology, even through an attorney, may be used as an admission of guilt in some instances).

Although there is no ethical rule in Florida that disallows an attorney from contacting a witness outside of the prosecutors presence in a criminal case it is a good idea if an attorney contacts such a witness that there be a witness to his or her conversation with the complaining witness. This is not only because if the witness were to say something inconsistent later, the other person could testify to the inconsistent statement of the complaining witness but also to protect the attorney from any claim of improper influencing by the person being interviewed.

This contact with the complaining witness can be extremely helpful in the right case. In a death penalty I had several years ago in Pensacola, I had developed a non-adversarial relationship with the father of the victim by the time the case went to trial. By getting to know him and what he had gone through in losing his daughter, I was better able to understand his pain and see things through his eyes. This changed how I perceived of the case in a way that was beneficial to my client. The same thing occurred on a recent very serious aggravated assault with a firearm. I had repeated very cordial contacts with the victims and I was the primary person giving them information about what was going on procedurally with the case. Both cases had very successful outcomes for the client.

Generally, the defense attorney has the opportunity to have much more contact with complaining witnesses than do busy prosecutors. In fact, a new specialist in criminal cases has come about called Mitigation Specialists. I do not know of anyone in Pensacola who is actually a mitigation specialist; however, in certain cases I have hired people from other states to come to Florida to work. These are people who develop relationships with victims, witnesses and obtain information that mitigates against harsh punishment in cases. A mitigation specialist is not necessary in most cases; in most cases the attorney and his or her staff can develop these relationships that will ultimately make it more likely to resolve the client's case more favorably and also make the victim's experience with the criminal justice system more positive and less threatening.

In Pensacola, as elsewhere in Florida, once a law enforcement agency arrests a person the paperwork is then forwarded to the State Attorney's Office (prosecutor's office) to determine what formal charges should actually be filed. An arrest by the police is not a "formal charge," it is merely an arrest based upon probable cause determined by the individual police officer. Formal charges are decided by and formally filed by the prosecutor's office.

Florida Prosecutors' Offices, including Pensacola and the First Judicial Circuit, which encompasses Milton, Ft. Walton, Shalimar, Crestview and Destin, often file criminal charges without having the time to conduct a thorough investigation of the facts of a case. This is not uncommon; most prosecutors offices throughout Florida have a tremendous volume of cases and don't have unlimited investigatory resources. This requires them to rely on law enforcement agencies who's investigators are sometimes merely interested in clearing an arrest. All it takes for an arrest is "probable cause." "He said, she said" is enough to get a person arrested even for the most serious of charges. An case that addresses what obligations an investigating officer has to make a probable cause determination is City Of St. Petersburg v. Austrino, 898 So.2d 955 (Fla. 2 DCA 2005). After the paperwork from the investigating officer reaches the prosecutor's office, the prosecutor in some cases will subpoena the complaining witness come to their office to provide a statement to them. If the statement appears to be credible, they will file formal charges. Sometimes these decisions are made without knowing all the facts of the case or the motivations of the witness who provided them a statement. The State simply doesn't have the resources to investigate charges at a deeper level. Unfortunately, this procedure sometimes results in innocent people being subjected to the stressors and expenses of being a defendant in a criminal case and perhaps even going through the frightening experience of a jury trial where the fate of their lives rests in the hands of other people: a group of six or twelve strangers called a jury.

I believe it is often necessary for a defense attorney to attempt to educate the prosecutor about facts not known to them in an attempt to not to file formal charges based upon what law enforcement has arrested an individual for. However, an attorney must be careful not to advocate facts without being very confident of what those facts are; to do so the attorney runs the risk of losing all credibility with the prosecutor. The cases in which the defense attorney contacts the State to negotiate prior to the filing of formal charges must be limited to those where the defense attorney knows the facts. I do not call the prosecutor prior to formal charges being filed on certain cases. However, not to attempt to negotiate with the State on the right case would not be doing everything possible for the client.

Continue reading "Being Arrested is Different from Being Formally Charged" »

With all the Barry Bonds media coverage I thought it might be helpful to discuss an area of Florida and Federal law that could impact many athletes and even your local gym enthusiasts: the use of steroids or growth hormone to enhance physical performance or increase muscle mass. Of course, Bonds is not indicted for possession of these drugs - he has been indicted for perjury in front of a grand jury for lying under oath about having used the drugs. He is innocent until proven guilty beyond a reasonable doubt, a fact many people forget. (Michael Vick was suspended from the NFL even though, under our system of justice, he is presumed innocent until proven guilty. Also of interesting note, Vick voluntarily turned himself in to the authorities on November 19, 2007, three weeks prior to being sentenced. This is almost unheard of in federal court and, albeit only my speculation, it is likely an effort by Vick to show extraordinary acceptance of responsibility probably in hopes of receiving a sentencing variance (a sentence beneath the guidelines) so that he can return sooner to the NFL).

The possession of "steroids" without a valid prescription in Florida, which are considered controlled substances under Florida Statute section 893, is a third degree felony punishable by up to five years in Florida state prison. Anabolic steroids, including various forms of testosterone, are now considered Class III drugs under Florida law. To give you an idea how strict the legislature has made the laws, they consider the potential of steroids being more addictive and more of a public health concern that xanax or valium, both of which are sedatives classified as schedule IV drugs and considered by doctors to be addictive medications. (Possession of these drugs without a valid prescription is also a third degree felony). The term "anabolic steroid" means any drug or hormonal substance, chemically and pharmacologically related to testosterone, other than estrogens, progestins, and corticosteroids, that promotes muscle growth. The sale or distribution, which, under Florida law, can mean merely giving the drug to another person, is a second degree felony punishable by up to 15 years in state prison.

It is unclear whether Florida law addresses the possession of human growth hormone. The federal system criminalizes possession with intent to distribute human growth hormone. Chapter 21 U.S.C.A. § 333 declares that whoever knowingly distributes, or possesses with intent to distribute, human growth hormone for any use in humans other than the treatment of a disease or other recognized medical condition, where such use has been authorized by the Secretary of Health and Human Services under section 355 of this title and pursuant to the order of a physician, is guilty of an offense punishable by not more than 5 years in prison. A person distributing growth hormone shall also possibly be fined in accordance with the amounts of fine authorized by Title 18. Federal sentencing guidelines also consider steroids to be a schedule III drug on the same level or potential for abuse as LSD. In 2004, Congress passed the Anabolic Steroid Control Act, which directed that the Sentencing Commission review the federal sentencing guidelines and provide for increased penalties that reflect the seriousness of the offenses. An emergency amendment proposed in 2006 provided for a sentencing enhancement for athletes using masking agents to hide their steroid use and for coaches who pressure athletes into experimenting with the drug and for individuals who distribute to athletes

One thing is clear, because of high profile cases such as Barry Bonds, it may become politically popular for our state legislatures to pass tougher laws regarding performance enhancing drugs.

Continue reading "Steroid laws in Florida and in the Federal System" »

In 1999 the Florida Legislature passed the Juror’’s Bill of Rights, now codified as Florida Statute 40.50. In October of 2007, the Supreme Court of Florida adopted some of these ““rights”” and incorporated them into the Florida Rules of Procedure and the Florida Standard Jury Instructions. These Rules and Instructions will become effective January 1, 2008.
Some of these procedures are already being followed by Judges in Escambia, Santa Rosa and Okaloosa counties as well as other Florida courts. The following are some of the changes that provide jurors certain rights in Civil and Criminal trials.

Being able to take notes. Florida Statutes had previously allowed that in any civil trial likely to last more than five days, jurors have the right to take notes and keep their notes confidential. However, the new Rules implemented by the Florida Supreme Court extended this right to jurors in criminal cases as well as civil cases and removed the requirement that the trial last more than five days. This Rule will become effective January 1, 2008.

Jurors are now able, within the Court's discretion, to be allowed to submit questions to the Judge to ask witnesses. The Florida Supreme Court again extended this right into criminal trials, it had existed in civil trials since 1999. In criminal cases, the new rule becomes effective January 1, 2008. It appears that a juror’’s right to ask questions is mandatory in civil trials but only discretionary in criminal trials. Florida Rule of Civil Procedure 1.452 states the Court ““shall”” permit jurors to submit questions, whereas Florida Rule of Criminal Procedure 3.371 states that ““at the discretion of the presiding trial judge””, jurors ““may”” be allowed to submit questions. It is not uncommon for some judges to actually ask questions of witnesses either during the questioning or once the state and defense have completed their questioning; this procedure is allowed as long as the judge does not make known to the jury his or her personal beliefs of the merits of the case into his or her questions.

In civil trials Jurors are required to be allowed to use notebooks provided them by the trial court. The Florida Supreme Court approved the use of ““juror notebooks”” in civil trials (effective Jan 1 2008 - in the discretion of the court). This is a procedure whereby ““the court may authorize documents and exhibits to be included in notebooks for use by jurors during trial to aid them in performing their duties.”” See Florida Rule of Civil Procedure 1.455. There is no counterpart to this rule in the criminal rules however often in Pensacola and other court rooms across the country judges give jurors notebooks on which to keep notes. These notebooks are collected after the trial and destroyed.

Jurors are now mandatorily given copies of jury instructions in civil cases. Effective January 1, 2008, the court shall provide each juror in a civil trial with a written set of jury instructions for his or her use during deliberations. See Florida Rule of Civil Procedure 1.470 and Florida Standard Jury Instruction Civil (Note On Use) 2.1.

On October 4, 2007 this year, four sweepstakes arcades, including two in Pensacola were raided by a joint law enforcement task force including officials from the First Judicial Circuit Office of the State Attorney. The probable cause stated in the search warrant alleged that illegal gambling was occurring at these four locations. I am represent one of the facilities. The government seized almost everything at these locations: computers, paperwork and machines which, on the surface, appeared to look and feel much like slot machines.
This brief article deals very basically with what differentiates a gaming device from a sweepstakes or legal video arcade game. Florida Statue Sections 849.15(2) makes it unlawful to possess or to permit the operation of any slot machine or device or any part thereof. It is also unlawful for any person to permit to be placed or maintained in any building or place owned, leased, or occupied by him or under his management or control, any slot machine or device or any part thereof . But what differentiates a prohibited slot machine from a legal sweepstakes machine or video arcade game? A slot machine is considered a prohibited device if it is adapted for use in such a way that as a result of the insertion of any piece of money, coin, or other object, such machine or device is caused to operate or may be operated, and if the user, by reason of any element of chance or of other outcome of such operation unpredictable by him or her. It is the element of chance, or, put another way, whether the machine has an infinite number of opportunities to win a prize that converts an otherwise lawful arcade device into a gambling device. Therefore, if a machine, like a sweepstakes, only has a finite number of opportunities to win a prize, it is not a game of chance - the person playing the game knows that the machine will allow only allow a limited number of winners. If you were to look on the back of a sweepstakes card you might pick up from McDonalds, Publisher’s Clearing House or Burger King, it would tell you how many opportunities (prizes) there are to win. There is a finite number of winners and therefore not a game of chance. Furthermore, to enter the sweepstakes or, as in the case of the sweepstakes arcade facilities raided, a person did not have to purchase anything.
Under Florida law in order for a game to be considered gambling, like the slot machines in Biloxi or the horse races at the Pensacola Dog track, there must be an infinite number of opportunities to win. Law enforcement authorities are currently investigating whether the machines at issue seized during this multi-county raid are finite machines or whether they operated with an infinite number of opportunities to win.

I left Pensacola to travel to Wyoming on August 19th this year to spend another week at a graduate level program at the non-profit Trial Lawyer’s College (TLC). The lawyers and staff that attend live in a barn that has had it’s bottom half converted to a co-ed dorm with twin beds in each room or out buildings with similar, austere accommodations. Everyone has a roommate, often a lawyer from another part of the country. Everyone is committed to be a better lawyer or they wouldn’t be there. Everyone has chores like busing tables or cleaning bathrooms. It is a place for lawyers to come to become more human, something that law schools don’t teach and in fact don’t encourage. I hope by being actively involved with TLC I am helping bring a little more justice to Pensacola.

I think this was about the 13th time I have traveled from Pensacola to Wyoming, Washington, California, Texas, South Dakota, Colorado or Virginia to attend a TLC or TLC related program in the last five years. I wondered this time what was I really going to gain by going on another “trip to the barn.” (The “barn” is on an isolated ranch in the middle of Wyoming). I am now on my way back, sitting on the airplane on August 25th as I write this article. I feel like I have learned a lot in the last week.

I have learned that it is more important to be a person than it is to be a lawyer, inside and outside the courtroom. I am no doubt a better lawyer and person every time I return from one of these programs. Attending these emotionally taxing and physically exhausting programs also reminds me of what the day in and day out stress of being a trial lawyer can steal from you - - - primarily your humanity. This last week I have had the good fortune of directing and helping other lawyers in working on their cases and working on issues in their personal lives through the use of psychodramatic methods that are too numerous to describe in this forum and of which I am not qualified to explain. (All sessions are supervised by some of the top certified psychodrama therapists in the country including the imminent psychodramatist John Nolte, PhD). I have also worked on my own client’s pending cases with the assistance of some of the best lawyers in the country at the Ranch.

Simply put psychodramatic methods allow one to find the real truth. The methods allow someone to better understand themselves and other people, both qualities necessary to be a good trial lawyer. What’s taught are not tricks or slick techniques - far from it. What is taught is how to discover and present the real truth of your case to other people, which, in the world of trial lawyers, means presenting a case to a jury or a judge who usually hold the fate and future of your client’s world in their hands.

Continue reading "Bringing a Little More Justice to Pensacola?" »

In a Pensacola courtroom yesterday a courageous judge issued one of the most articulate, well reasoned decisions I have heard or been a part of in 22 years of practicing law - a decision based upon facts presented in a long hearing about a man who truly loved his dog; a decision made without consideration to the misdirected television and press coverage this case had received in the days following the July 4th accident where the dog was accidentally injured by it's loving owner Pompeyo Morales. Pompeyo had accidentally left his puppy tied to a passenger side mirror on his truck while Pompeyo could load his tools into the back of the truck after working all day on the July 4th holiday. Pompeyo drove off from his job site forgetting that the puppy still was attached to the mirror. When he found out he had drug his puppy, he was "shocked" and "stunned" according to witnesses who later contacted the authorities. He was arrested for Felony Animal Cruelty and Escambia County petitioned the Courts to find Pompeyo unfit and unable to adequately care for his pet. All of this fell immediately on the heels of the publicity involving the high profile dog fighting case involving pro football player Michael Vick. (See Steve Wyche's report today in the Atlanta Constitution). Pompeyo and Bugsy's case even reached the national spotlight by being reported by CNN and on national news programs, all of which cast Pompeyo in a negative light. Simply condemnation with out investigation.

In the short time I have been defending and helping Mr. Pompeyo Morales with his case he appears to be one of the hardest working men I have ever met or represented. The County alleged that Mr. Morales was not a fit "parent" for the dog, even after more that 85 people had stepped forward with letters and petitions indicating that Mr. Morales would never intentionally harm his puppy or for that matter harm any living thing. The day of this accident, Pompeyo had found a snake in a woman's yard where he was working and instead of killing the snake as she asked him to do, he placed the snake into a container, punctured holes and placed food in the container for the snake to survive, all in order that he could take it to a friend who could release it into the woods on the friend's property. Escambia County Judge David Ackerman, after hearing from both sides in a 3 1/2 hour long hearing, found that Pompeyo had simply made a mistake, a mistake like all human beings make from time to time. He denied the County's petition and awarded custody of Bugsy to Pompeyo.

Today, for the first time in six weeks Pompeyo Morales was allowed to see Bugsy at the Animal Clinic where he is being kept. Bugsy hopefully will be coming home with Mr. Morales next week if Pompeyo can obtain enough money to pay off the veterinarian bills and the costs of kenneling the puppy since July 4th. From what I understand Pompeyo was sitting in a room when the kennel people let Bugsy, a high strung little guy, enter the room where Pompeyo was sitting. Bugsy immediately jumped into Pompeyo's lap and began feverishly licking his face. Having come to know Pompeyo since I began helping him with his case, I have no doubt tears were also running down his face when he was reunited with his little friend. Justice was served.

Continue reading "Puppy in Pensacola Reunited with Owner by Court " »

In Pensacola last week I represented a Escambia County Deputy who was charged with felony battery on a handcuffed suspect. The Pensacola News Journal reported that my 300 pound former deputy client stomped on the suspect's head while handcuffed causing severe wounds to his face, a fractured nose, and then was body slammed against a door as he was being taken out of the building he had been hiding out in. The paper pointed out there were two other deputies who testified they witnessed these acts of brutality. The paper made some reference to me persuading the jury to find reasonable doubt and the fact that the jury returned a not guilty verdict in 15 minutes. The article reads as if the jurors were either fools or I had some magic wand that I waived around the courtroom to ameliorate the facts of the case so the jury could find reasonable doubt. One readers comment even spoke of the prosecution "throwing" their own case just not to convict a cop. Nothing could be further from the truth.

The evidence adduced at trial actually revealed that the witnesses could not have seen the area where the fight occurred from the area where they claim to have been when they say they witnessed the brutality. Also, most importantly, the emergency room physician who testified in the prosecution's case said that the injuries caused to the 26 time convicted felon's scalp were actually quite minor ( one inch and one centimeter respectively) and that they were totally inconsistent with being inflicted by the military style sole of a boot of a 300 pound man or any man for that matter. She stated the wounds were consistent with being hit with a flashlight, as the suspect claimed when he entered the E.R., or that was struck by some type of blunt object. Earlier in the evening the suspect had been struck in the head by a cement lawn ornament by someone trying to get the suspect to release his girlfriend who he was beating. Based on the evidence adduced at trial the extremely attentive jury did exactly what they should have done and found the deputy not guilty. Journalists, readers and even lawyers often forget that the indisputable facts of the case are what is most important in determining what verdict a jury renders.

The lead story on Pensacola television last night and in the Pensacola News Journal today was a lead story involving an elderly man who was accused of molesting two teenage girls while the girls worked on his ice cream truck two years ago. I represented this old fellow at trial in February of 2006 and the all female jury, after considering the actual evidence against him, cleared him of all charges relating to molesting either girl.

Unbeknown st to me, the elderly man, who has only a small social security pension on which to live, had recently joined with another elderly man and were selling ice cream in the same areas where he sold ice cream prior to the charges being brought against him two years ago. Apparently, someone or some people in the neighborhoods reported to the media, or reported to the Santa Rosa Sheriff's Office who themselves reported to the media, that he had attempted to lure one of the children to get into the van to pick out their ice cream.

Now there is a media frenzy. I hope is stalls out. The paper included quotes by the prosecutor's office head supervisor in Milton, who prosecuted the elderly man before, that his office was "actively interested" in investigating the old man's activities. Such reporting by the media, in my opinion, without any confirmation of the sources of such information is reckless when the consequences of merely reporting this type of story about a citizen is horrendous. I guess reporters want hot stories; their careers depend on writing sensational articles that sell newspapers and get people to watch their news programs. But in cases involving sexual abuse mere allegations forever brand someone - many people will never believe he didn't commit the crime even though he was found not guilty of such conduct before. Is this because we as human beings want to believe the worst in each other?

Pensacola Federal District Court Casey Rogers was criticized by the editorial in the Pensacola Florida News Journal in Sunday's paper on February 28, 2007 for imposing too lenient of sentence to Former Escambia County Sheriff's Deputy Charles Dix. Yes, from what one reads in the Pensacola New Journal the sentence seemed light. However, what the public isn't told is that the United States Sentencing Commission Guidelines establish a set of Guidelines that federal Judges are required to consider when sentencing an offender that only called for a 12 to 18 month sentence of incarceration, even if Dix had not become a cooperating witness. Generally, in my opinion, these federal guidelines are far too harsh, especially when it comes to drug and white collar sentences. (White collar prison sentences have recently been greatly enhanced under federal sentencing advisory guidelines for punishment). Dix's sentencing range also includes a 6 offense level enhancement because Mr. Dix was a police officer at the time of his crime and disrespected the trust the public places on public officials. (Is this really true these days?).

What Dix did to Pensacola resident Martha Bledsoe was outrageous. Tasering a woman who did nothing aggressive towards the deputy did not warrant the type of violence he inflicted upon her. However, it is arguable the sentence imposed was appropriate on several grounds. First, although Ms. Bledsoe was no doubt traumatized because of the ordeal, Dix's attorney pointed out in a sentencing memorandum that her claims may have been slightly exaggerated - no excuse for Dix's behavior but perhaps something to consider. The memo states her claims for unemployment compensation were turned down because her actual injuries were not consistent with the descriptions of injuries she gave of her injury; in other words, they believed she overstated her injuries. Of course she also received a $250,000 cash award from the county. She certainly didn't deserve to be shocked with 12, 000 volts of electricity administered by Dix for no reason other than his anger towards her for calling dispatch to report how abusively he was treating her. And this is not to say, by any means, that Dix should be treated lightly. What he did, especially if you heard the 911 call from Ms. Bledsoe to the Sheriff's Office to complain about Dix's behavior when he accosted her and then, with the 911 still being recorded, hearing animalistic screams of pain when he fired his tasers into her from point blank range, was simply outrageous.

What the paper didn't cover however, is that our federal justice system is dependent on defendants charged with serious crimes to cooperate with the government to implicate others involved in crimes. Mr. Dix, whether you believe morally correct or not, began cooperating or snitching on others from the get go. He claims to have implicated five other deputies/law enforcement personnel who used excessive force or committed other improprieties. The prosecutor claimed in doing so, Dix even incriminated himself in these other cases. So, in keeping with how our federal system operates, Dix was rewarded when the government certified to the Court he had provided "substantial assistance" to them. This certification from the U.S. Attorney's Office provides the Judge additional reasons to depart from the 12 to 18 month prison range and, in this case, it resulted in a sentence of 5 years probation that also included 6 months of house arrest. This is not a slap on the wrist. Just try sitting in your house day after day, being only allowed to go to work but other than to and from work, never leaving your house. Yes, you don't have to fight for food with inmates, you can eat what you want provided you can afford it; you can watch television and you can be in the arms of your loved ones. But I cannot think of one client in Florida that I have represented that didn't think house arrest was hell; many told me they would have done jail time instead.

Under the circumstances Judge Rogers sentence was within the bounds of correctness. Others no doubt take issue with this. Perhaps if people really wanted to change the system they would learn how draconian the federal court system really is; learn about how young men in the teens and early 20s are being sentenced to life based upon the testimony of cooperating witnesses because of their involvement with drugs. Maybe if sentences were more reasonable, the government would be forced to not rely so heavily on the testimony of cooperating witnesses like Dix to make cases. Reliance on witnesses who have the most precious commodity in life to gain by helping the government, freedom, may be prone to exaggerate or lie. Maybe law enforcement might have to investigate cases more thoroughly rather than scaring people with threats of life sentences and losing their children if they don't cooperate. Once, in the early 90s I tried a trafficking cocaine case in the Pensacola Division of the Federal District Court. Fourteen (14) snitches testified against my client. Mr Client told me, "yes, most these guys bought cocaine from me; one was even my supplier. But out of the fourteen, five (5) of them I have never seen or heard of. They never met me." The lying witnesses had jumped on the proverbial bus to freedom or reduced sentences: cooperation with the federal government to get a lighter sentence. Inmates know they can get their sentences reduced if they assist the government. This is not to say that federal agents knowingly put on perjured testimony; I am simply saying that as human beings sometimes our perceptions of who is telling us the truth and who is not is not an easy thing to determine.

Charles Dix punched his ticket for the bus as soon as he learned the bus to freedom had pulled into the station. Judge Rogers sentence wasn't too lenient, the system merely needs an overhaul. I have heard the feds are building prisons to just to house "cooperating witnesses" who, you can imagine, don't win popularity cases in the general population of federal penitentiaries.

Pensacola Circuit Court in Pensacola, Florida is currently involved in a case you don't see often in this "neck of the woods" - a gang related case. In Florida is someone commits a crime while part of a gang they are subject to enhanced penalties under Florida's Criminal Street Gang Prevention Act, Fla. Stat. 874.04. As an example of this Florida law, someone who is charged with a crime that is otherwise a 3rd degree felony, is subject to the penalties of a 2nd degree felony. In other words, every degree of crime, be it a third, second or first degree, felony or misdemeanor, is enhanced one offense level merely because the defendant was involved in a gang. The problem arises when and how do you, or the State, define what is or isn't a gang or if a person is involved in a criminal gang.

In many cities, if young people are not in a "gang" they have no one to socialize with. They are not involved in the gang to commit crimes. Are these "gangs" more like clubs? If someone is a member of a club should they be subject to enhanced penalties? We always have thought that "mere association" with a group is no basis for an enhanced penalty or for that matter a crime. In State v. O.C. 748 So.2d 945 (Fla.,1999), the Florida Supreme Court answered this question to some extent. The court held in O.C. that the statute providing for enhancement of degree of a crime for sentencing purposes based on membership in a criminal street gang did in fact punish mere association and violated a defendant's substantive due process rights, as the statute punished gang membership without requiring any nexus between criminal activity and gang membership and thus lacked rational relationship to legislative goal of reducing gang violence or activity. In other words if the person committing the crime did so without any relation to gang activities he should not be subject to enhanced penalties. The Court found the statute over broad and too vague to be constitutional.

In Wyche v. State, 619 So.2d 231, 237-38 (Fla.1993), the Florida Supreme Court invalidated a Tampa ordinance making it illegal to loiter in a manner manifesting the purpose of procuring sex for hire. Under the ordinance, a person who was a “known prostitute” could be convicted for beckoning to motor vehicle operators to stop. See Id. at 235. The Court found that not only was the statute vague and over broad, but it also violated a citizen's substantive due process rights because it “ ‘unjustifiably transgress[ed] the fundamental restrictions on the power of government to intrude upon individual rights and liberties' ” by “punish[ing] entirely innocent activities” such as hailing a cab or signaling to a friend in an automobile. Id. at 237. Can you imagine the potential problems of such an ordinance. You and your spouse take a cab to a restaurant, eat, enjoy the meal and while you are fumbling to pay the bill, your wife or husband hails a cab and the next thing you know is a tired law enforcement officer think he recognizes your spouse as someone he has seen on the street before and before you know it she or he is hauled off charged with "beckoning a motor vehicle to stop." What a way to spoil an evening in Florida.

Continue reading "Pensacola murder case involves Florida's Criminal Street Gang Prevention Act" »

On January 17th, 1977, after a four-year moratorium against capital punishment in the United States, Gary Gilmore was executed in Utah. His death, along with his bold last words ("let's do it") prompted a media and pop culture feeding-frenzy, inspiring songs by The Police and British punk band the Adverts, a "Saturday Night Live" sketch and numerous books and films.

Thirty years ago today, Johnny Cash reportedly called Gilmore to sing him a final song. Shortly afterward, Gilmore ate his last meal: a hamburger, hard-boiled eggs, a baked potato, a few cups of coffee and three shots of whiskey. As I recall, shortly after 8:00 AM, he was executed by firing squad.

Since that day, over 700 Americans legally executed in this country, and this tonight in Texas, between 4:00 and 7:00 PM, there will likely be one more.

Texas has more executions than any state in the nation. Florida is another state with a high number of killings by the state. A friend of mine who practices law in Texas, and who specializes in representing people who the State seeks to execute, told me there were 45 executions in Texas last year. Remember, studies have shown that a small percentage of people who are sentenced to death are innocent. I wonder of the 45 killed in Texas, how many of them may have been not guilty?