Florida Criminal Law Blog

Many Florida and Pensacola lawyers are asked about whether it is illegal to record telephone calls. Florida Statute section 934 governs the recording of electronic communications in Florida. It’s extremely important to seek legal advice from an attorney if you are considering recording telephone calls or oral communication between parties. This article does not serve as legal advice.

In Florida, generally all parties must consent to the recording or the disclosure of the contents of any wire, oral or electronic communication. This means phone calls! Recording, disclosing, or endeavoring to disclose without the consent of all parties is a felony, unless the interception is a first offense committed without any illegal purpose, and not for commercial gain. Florida Statute section 934.03.

Under the statute, consent is not required for the taping of a non-electronic communication uttered by a person who does not have a "reasonable expectation of privacy" in that communication. However, this oral communication must be one that is made in a setting in which a person does not have a “reasonable expectation of privacy.” There are various circumstances when a person may not have a reasonable expectation of privacy. See also Florida Statute section 934.02 for the definition of “oral communication.” See also Stevenson v. State, 667 So.2d 410 (Fla. DCA1996); Paredes v. State, 760 So.2d 167 (Fla. DCA 2000).

In Cohen Brothers, LLC v. ME Corp., S.A., 872 So.2d 321 (Fla. 3rd DCA 2004), the District Court of Appeal for the Third District of Florida held that members of a limited liability company’’s (LLC) management committee did not have a reasonable expectation of privacy with respect to participation in telephone conference calls with other committee members to discuss continued financing of the LLC, and thus could not hold the committee members liable for recording the conference calls.

There are also cases which state the recording of a phone call, even without the consent of the party, may be admissible in Court if the recording involved the planning or perpetrating of a crime. This does not mean the recording was legally made by the person recording the call. The Courts have merely said that “right to privacy” concerns are outweighed by the fact that the person is planning to commit a crime and the recording may be admissible. In State v. Inciarrano, 473 So. 2d 1272 (Fla. 1985), the Florida Supreme Court held that there may be circumstances under where a reasonable expectation of privacy will not be justified. The concurring opinion points out that the majority opinion holds that if someone is committing a crime they do not have a privacy right. This particular defendant, Inciarrano, went into someone's business and shot and killed them and the entire event was being recorded by the victim without the defendant’s knowledge. The Court held the tape to be admissible at trial which led to the defendant’s conviction for murder.

The Eleventh Circuit federal appellate court that governs federal law in Florida has held that because only interceptions made through an ““electronic, mechanical or other device”” are illegal under Florida law, telephones used in the ordinary course of business to record conversations do not violate the law. The court found that business telephones are not the type of devices addressed in the law and, thus, that a life insurance company did not violate the law when it routinely recorded business-related calls on its business extensions. Royal Health Care Servs., Inc. v. Jefferson-Pilot Life Ins. Co., 924 F.2d 215 (11th Cir. 1991). However, this is federal law. Florida state law makes it illegal to record conversations without all parties consent; this is exactly why many companies will announce on their prerecorded messages that "this call may be monitored or recorded for training purposes" when you first connect with their company telephone lines.

Anyone whose communications have been illegally intercepted may recover actual damages or $100 for each day of violation or $1,000, whichever is greater, along with punitive damages, attorney fees and litigation costs. Fla. Stat. ch. 934.10. Each recorded phone call made illegally that is a felony is punishable by up to five years in prison and a maximum $5,000.00 fine.

Basically, in Florida, the bottom line is phone calls cannot be recorded without the permission of all parties. There are very few limited exceptions with almost no exceptions for the lay public. One exception under the statute, is that police may make recorded phone calls without obtaining the permission of the person called. Often Florida law enforcement officers will have people who are victims or cooperating witnesses make phone calls to suspects to extract confessions or admissions from them, all the while the call is being recorded and the witness is being prompted what to say by the agents. This type of admission is admissible in Court and can be extremely critical evidence to aid the prosecution.

Every state has specific laws applying to the recording of telephone calls. What is the law in Florida is not the law in other states. For example, in Georgia, the law expressly provides that it does not prohibit a person who is a party to a conversation from recording, and allows recording if one party to the conversation has given prior consent. Ga. Code Ann. §§ 16-11-66. See also Malone v. State, 541 S.E.2d 431 (Ga. Ct. App. 2000). However, the divulging of these conversations may be illegal.

Disclaimer: every state has different laws pertaining to the recording and dissemination of recorded phone calls. If you are thinking of making recordings, it is strongly advised that you retain an attorney in your area to seek advice before doing so. Nothing said in this brief article can be relied upon as legal advice. My intent in writing this was merely to serve as a guidepost for folks to understand how complicated the laws are surrounding this area of the law, provide some information to the public so people would not be unwittingly committing crimes and impress upon folks how serious a law violation it may be to record calls without the other person’s knowledge.

Potential Client,
If you're reading this, you may be in the very difficult position of having to secure legal representation for yourself. I do not envy you. I, myself was in the same position approximately a year ago. The road ahead of you is a very dangerous one. You will need the best help and guidance you can get. The first step may be the hardest, but please keep in mind that it also might mean the difference between freedom and incarceration. Please read on carefully.

When I was criminally charged, it was a very daunting task choosing the right attorney. After all, this person quite literally has your life in his hands. For me, this was the darkest time I had ever experienced, and now, I was facing the most important decision of my life. Who will defend me? How do I know which attorney will do the best job? Questions anyone in my position would have. Of course, I asked a lot of questions, did some research, talked with other attorneys and hired Jim Jenkins. Even if Perry Mason himself had been representing me, I would have had doubts. It's not until the attorney/client relationship is established and see your attorney in action that those fears and doubts are either abandoned or confirmed.

The best way for you to understand what type of attorney, and more importantly, the kind of man Jim Jenkins is, I need to tell you a little of my story. I was falsely accused and charged with sexual molestation of my fifteen year old daughter. My former wife has been trying to obtain custody of my children from me for years. Before charges were officially filed, Mr. Jenkins conducted a thorough investigation and proactively engaged the investigators involved with my case. Unfortunately, the State decided to prosecute me.

If you are ever unfortunate enough to go through what I did, you know that with these types of charges you are never really innocent until proven guilty. The implications that arise simply by being accused of sexual crimes of this nature require you to prove your innocence beyond a shadow of a doubt. Often in these types of cases, a child will recant their allegations and the prosecution will still persist with the case. Convictions can and do occur with no evidence other than the child's accusations. What followed with my case was nothing short of phenomenal.

Mr. Jenkins launched an investigation that was so thorough and meticulous that he knew every fact and faucet of my ordeal, usually better than I did. His recall ability is unparalleled. His communication skills, both in and out of court, are exemplary. He was available to me at almost any hour of the day. He promptly and personally returned all of my phone calls and emails. What's more, he always made me feel as if mine was his only case. His results were incredible! All charges dismissed were dismissed! This occurred even though, from what I had been told, the prosecutor's office had two other similar cases pending where both alleged victims recanted their stories yet the state refused to drop the charges. My daughter never recanted her story yet Jim was able to show the prosecutor and her supervisors the real genesis of the case, my daughter's mother, and the huge number of inconsistencies which existed between all the different stories my daughter was pressured to tell. What hurts the most is the loss of the relationship with my daughter that I hope one day will be mended.

How do you choose the right attorney? The proof is always in the results. How does anyone get good results? Good, old fashioned, hard work, dogged determination, the desire to succeed, and some people like to say - a little luck. As Jim Jenkins likes to say: if you have the first three elements, the last one usually comes along. Luck doesn't just happen, you make it. I think Jim spent more time preparing for depositions than many attorneys prepare for jury trials.

Success rarely comes easily. When your very freedom is at stake, you need someone who will never quit, someone who knows the right thing to do. You need the best. Jim Jenkins is that man. I am not alone in my opinion of the work and dedication Jim's put's into his client's cases.

Best Wishes to you in receiving justice.

Click here to see Pensacola Criminal Defense Attorney Jim Jenkins' website

A Pensacola Criminal Defense Attorney walked out of the Federal District Courtroom in Pensacola on Good Friday relieved, joyful for his client and with a sense that a reasonable, federal sentence had been imposed in his client's case by a judge that meted out appropriate punishment but also took into consideration the nature and circumstances of the offense and the personal characteristics of the defendant in a merciful fashion.

My client, Mark, (not his real name) was sent an email with a link to 23 different websites that advertised young love, teen material, etc. He clicked on the link and subsequently made the poor choice to subscribe to several different websites which contained "soft core" child pornography or erotica in the winter of '06 (these sites did not involve sexual interaction with adults); one of sites, the most sexually graphic of the sites that did involve children interacting with adults, was being monitored by the Immigration and Custom's Enforcement Division. One of the sites involved "hard core" child pornography, the others softer types of porn, however much of which was still illegal. Mark did not download the hard core child porn images but had subscribed to the site. A year passed before the Agents executed a search warrant on Mark's apartment.

When Mark came to see me he was scared and very angry with himself for having looked at the these materials. We immediately scheduled him to be evaluated by an expert in sexual offenses, he then took a polygraph to show he had never had any involvement with children, the answers to the questions posed to Mark showed he showed no deception and had never had any inappropriate contact with a child. We then got him into long term therapy with Brett Turner, Psy.Ed., who is an expert in treatment of sexual offenders in Pensacola. More than a year passed before Mark was arrested and charged with one count of possession of child pornography in violation of 18 U.S.C. 2252. The sentencing guideline applicable to this statute is USSG 2G2.2. The government alleged to have found in excess of 600 illegal images stored on his computer. This increased his guidelines sentence five offense levels.

Child Pornography Guidelines are not Facially Valid

The child pornography guidelines over the last ten years have become drastically more severe due to Congress amending the guidelines by attaching guideline amendments to more popular bills which easily passed; however, the end result regarding USSG 2G2.2, the child pornography guidelines, is that they were significantly enhanced without any empirical basis or study by the U.S.Sentencing Commission which is how guidelines are supposed to be amended. Generally, guidelines in the federal system are amended by the US Sentencing Commission after they have studied the appropriateness of an enhancement or an adjustment to a guideline after extensive investigations of what types of sentences are being imposed or how federal district court judges nationwide are resolving these cases.
The end result is supposed to be uniformity in sentencing. Unfortunately what has happened in the last ten years is the guideline has been amended by certain congressman responding to right wing constituents as well as the Justice Department's own request they be enhanced. (See Troy Stanebow's article: Deconstructing the Myth of the Child Support Guidelines). Sentences imposed in 2009 for identical conduct committed in 2003 will result in a sentence four times greater than in that which would have been imposed in 2003 without any rational reason for the enhancement other than politics.

In our case, we filed a 38 page sentencing memorandum asking the judge to depart from the advisory guideline range of 78 to 97 months imprisonment. In 2005 the U.S. Supreme Court, In U.S. v. Booker, made the federal sentencing guidelines merely advisory but something that the Courts must consider when imposing sentence. My client had little or no criminal history, had been in therapy for more than a year, had been evaluated by a forensic psychologist which resulted in his opinion the client imposed almost no risk of recidivism. (No one, you or me, has no risk of offending, we all do). He subjected himself to a lie detector test that supported the fact he had never had any inappropriate contact with children, directly or indirectly over the internet.

The district court judge, instead of imposing the advisory guideline range of six and one-half to eight years in federal prison, granted a "variance" downward and imposed a sentence of one year and one day in custody. The significance of the extra day means that he will receive 54 days gain time that an inmate would not receive if they only receive one year. His custodial sentence will be followed by one year of home confinement and ten years of supervised release (a type of intense probation). He will also be a sexual offender the rest of his life. However, such a sentence for a man who has already completed sexual offender counseling, and who has been found to be of absolutely no risk to the community, gives him not only the ability to see a blue sky at the end of his tunnel, but the opportunity to become a very productive member of our community again.

None of us support child pornography. There is absolutely no redeeming value in such material, quite to the contrary. It can and does cause serious harm, sometimes irreparable, harm to children. One thing that made my client in this case extremely atypical is that Mark recognized and acknowledged this on his own without the idea being suggested by his attorney or his therapist. He had exceptional insight that his own behavior, joining the web sties, created a market for these materials to be produced. (However, the "market theory" of purchasing/viewing child pornography has been criticized by some district courts in light of how the government uses child pornography to bait suspects, thereby using the same material that supposedly created the market and violated the privacy rights of the children involved).

The judge cited the following grounds for his variance (downward departure) which resulted in a sentence 86% below the advisory guideline:
1. he immediately subjected himself to a forensic psychological evaluation
2. he immediately subjected himself to a polygraph examination done by a highly qualified polygraph examiner (polygraphs are admissible in sentencing in federal court).
3. he is in the lowest group for reoffending
4. he has genuine, significant remorse
5. objective testing showed he is not a pedophile and that he is at low risk of recidivism
6. he was only involved in the downloading of child porn from web sites for a brief period of time
7. he came from an extremely disadvantaged background yet put, with his own financial earning, put himself through professional school and earned a doctorate degree
8. he was diagnosed as having severe depression, extreme anxiety, and obsessive compulsive disorder that contributed to his collecting the child porn (his primary collection was adult pornography). His viewing porn was an aversion to overall psychological state which included very low levels of self esteem and obsessive compulsive disorder.
9. The Court acknowledged the weaknesses of the sentencing guidelines in light of how they have been amended.
10. The defendant has been shown great stability in employment for the last ten years with the same employer (which is a sign of no psychosis, which is an indicator of someone's high likelihood of recidivism)

From what I have been told, this was the first time the Judge in this case has given a variance or downward departure in a child pornography case. My client was extremely atypical as compared to most offenders. However, what is somewhat surprising is that most offenders are male, in the mid 40s or older, have little or no criminal history and many have good jobs. The internet has created a minefield of materials that if viewed from the safety of your own home can result in people spending lifetimes in prison.

For Mark, he will never offend again. He is using this experience to better his life and embrace his personality characteristics that for so long have hampered his ability to socially interact and enjoy his life; he is slowly "inching" towards better self-esteem. This case is a good example of someone, not uncharacteristically, who achieves a certain status or career in life, (he had a doctorate degree) yet still hold themselves in very low regard. Material things, objective objects, degrees, cars, houses, beautiful wives, are no substitute for having healthy self esteem. I think Mark has a good chance as many people do of benefiting from this experience and improving his life, although he will have to suffer consequences for his criminal behavior. Another thing that made Mark unusual is he accepted the fact that he should be punished for what he did, something we don't see often with people charged with criminal charges. It helps us trial lawyers a great deal when a client is honest with us; I never had a doubt about Mark's honesty. In his case, honesty and acceptance bayed well for him.

See Pensacola Criminal Defense Attorney Jim Jenkins Website for any further information about these types of sexual crimes or others. It was a very good "Good Friday" for Mark. It was also a good "Good Friday" for me and my staff who were all in Court, even on Good Friday, a typical day off, in support of Mark.

The Pensacola New Journal reported on a story yesterday that, based on what was reported, concerns me as a criminal defense attorney who practices criminal law primarily in Pensacola. My comment here has nothing to do with the sinister nature of taking wedding gifts from a wedding; I think someone stealing something from anyone else should suffer consequences for their criminal acts taking into consideration the motivation for their behavior. Furthermore, I don't have knowledge of all of the evidence that may exist in the case; however, from reading the arrest report and from what I read in the newspaper I see a dearth of evidence that resulted in another young couple being treated very callously not only by the Pensacola News Journal but also by the Pensacola Police. What I take issue with is the way this case was reported and what measures law enforcement took to make a very “mine-run” case seem like something more sensational than it really was.

Apparently, the police department was informed that a young lady who worked at the Pensacola Yacht Club had used a department store gift card that had been stolen from the table of wedding gifts at a recent wedding at the Yacht Club. The Pensacola New Journal the day after this young lady's arrest, ran a front page article about some of the wedding gifts being stolen, including the mug shot of the young woman. (I mean no disrespect to the young couple whose wedding gifts were stolen; their loss and frustration hopefully didn’t take too much away from the joy of their wedding day).

What bothered me about this case is not only what was reported in the article but the method in which the story was reported. What evidence exists against his woman other than the girl worked at the Yacht Club, she appeared briefly at the Yacht Club when she wasn’t scheduled to work and bought her children clothes with a gift card that was apparently purchased by someone as a gift for the young couple? (Haven't we all gone into our work on our day off before?; was there any other evidence during the woman's tenure working at the Yacht Club that she had been dishonest?). Allegedly, according the Pensacola New Journal, there was approximately $1100 in gifts taken from the gift table during the wedding -- 24 out of 30 envelopes contained gift cards and checks were taken. .

Apparently, Pensacola police used the fact that the employee had used the gift card as probable cause to obtain a search warrant from a judge and then proceeded to break down the front door of her home at around 6:30 a.m. the day after they received the warrant. The police had no other evidence before they took the barbarian measure of busting down this families front door other than she had been at the Yacht Club on her day off and had used a department store card which had apparently been intended to be given to the new couple.

What most Pensacolians and Florida citizens in general may not know now is that no longer is it required that the police must “knock and announce” before they break down the front door of your home after they claim they have probable cause and present it in writing to a judge before
she or he signs a warrant. In Hudson v. Michigan, 547 U.S. 586 (2006) the U.S. Supreme Court held that the violation of the long-standing ““knock and announce”” rule does not require exclusion of all evidence found in a search. This new law was followed by Florida’s Supreme Court in Jenkins v. State, 978 So.2d 116, 130 (Fla. 2008)

What people may not also realize is that a judge signs a warrant to search someone’s home merely based on “probable cause” to believe a crime has been committed. This doesn’t mean the police have any thing close to proof beyond a reasonable doubt required for a conviction before they can use a battering ram to break down your front door while you and your family are sleeping.

When I read this front page new journal article entitled “Wedding Crasher Cashes In,” which included the Pensacola paper even publishing a photograph of the employee, I was disgusted. First, what evidence was cited in the article other than the police had that this girl had possibly used a gift card that was given as a gift to the wedding couple? Could she have found it in the parking lot? Could it have been accidentally dropped by the real wedding “bandits.” But to add insult to the injury, the New Journal felt the article worthy to publish this article on the front page using the title of a recent popular movie to gain attention and sell papers. Did they even consider that this employee is considered innocent until proven guilty?

And does the seriousness of this offense really warrant the Pensacola Police Department using a battering ram to break down a door of a couple’s home, a couple with small children, involving a case where the estimated value the gifts taken to be approximately $1000? Was there no more gentile way to conduct this investigation? But then again, at least from what little I currently know about the case, officers found no evidence that the employee had any other article that was stolen other than the department store card which she had used. Maybe the terror that may have been directed at this family also will serve to exonerate them. Wouldn't you have expected some evidence of 24 separate envelopes, including various gift cards, supposedly taken from the wedding to have been found? And if there weren't, is the reporting of this article, as well as publishing the suspect's photograph, on the front page of the New Journal responsible journalism? You decide.

For other topics of interest regarding the criminal law please click link to Pensacola Criminal Defense Attorney

What can do to more effectively assist our clients in navigating the treacherous waters of the justice system and all of the personality types of the people within it? In my experience, generally I have found it extremely beneficial not to engage opposing counsel in their bad behavior whether it is over the phone, at deposition or in trial. For me, in representing people (and in life in general) it is better to not react “in kind” to bad or disrespectful behavior from opposing counsel. By engaging them I lose my effectiveness and give away my personal “power” to my opponent. Some lawyers won’t agree with me. Some of us believe “fire should be fought with fire.” Everyone has to find the right way to deal with anger. In trial, I believe if a lawyer gets so angry in front of a jury, at opposing counsel, at the judge or with a witness during a cross exam, the jury begins to think that the lawyer believes the case is more about him and less about what the facts of the case actually are. We lose our credibility and we can’t be the jury’s guide and teacher that will lead them to justice if we lose our credibility.

I have been extremely aggressive at times in my younger years as a trial attorney–yes, it felt good; yes, it looked good to other attorneys; and yes, my client thought it was fantastic. But the jury hated me for it and it was difficult if not impossible to be forgiven by them and regain “a connection” with them after such an episode. After witnessing an outburst, the jury believes they have witnessed the “true side” of me; perhaps I have been an impostor all along.
Of course, what works for one attorney may not work for others. It took me years to learn that I didn’t have to have the great oratory skills of some members of the Bar nor did I have to have to be the smartest lawyer in the Courtroom to be the most effective. What I needed to do was be myself, not me the lawyer, but me the person, which is the basic premise of what is taught at The Trial Lawyers College. I do need to be extremely prepared and someone who the jury would trust. I could make mistakes as long as I acknowledged them and sincerely apologized. Jurors distrust lawyers. I do my best to leave my lawyer man personality at home. In fact, I try not to have one to leave at home, probably an impossible feat, but something I try to do.

Is Connecting with the Jury Mutually Exclusive of Making A Record?

It is important to know the law and evidence code, the “rules of engagement” so to speak, and if at deposition or in trial opposing counsel is violating the rules, calmly and quietly make a record. Some prosecutors and lawyers who outright abuse their authority should be reported to a higher authority after an appropriate record is made. Prosecutors bullying witnesses who testify truthfully but favorably in support of a defense theory at deposition is an example of bad behavior that borders on witness influencing or tampering. Many of us have had cases where a witness who testifies favorably for a defendant becomes a co-defendant himself after his or her deposition. By charging these people who were only marginally involved with the offense conduct, they became scared and often become cooperating witnesses for the State. Is this not witness tampering or obstruction of justice by the prosecutor? I have found that if you are dealing with a very adversarial opponent the most effective way to disarm them is not to engage them — they want you to argue with them. Not engaging them befuddles them. I had a prosecutor tell me recently after some depositions that she hates doing depositions with me because I won’t respond in kind to her in arguments over the case. (I had told her when she was screaming at me because after her witness recanted at deposition that “I am not going to argue with you no matter what you say”). The case was ultimately dismissed.

Every case and situation must be judged on it’s own facts, and you must be guided by your own personality and intuition, but at times I will allow a prosecutor to act badly or berate me and/or my client in front of the jury without making an objection because I want the jury to see the true nature of the prosecutor. I do not believe that objecting at every opportunity even for valid reasons in trial benefits my client. Of course, the risk of not objecting must be considered and balanced with creating a record; however, I believe most people on a jury believe if a defense attorney objects we don’t want them to hear something that impacts negatively on our case. In a recent trial, I objected only one time during the prosecutors closing even though he had probably called my client “a liar” fifteen or so times. In this particular trial the evidence during our cross examination of the arresting officer showed that he had blatantly lied. The prosecutor, who is as skilled and talented a prosecutor as they have in the particular office, explained his officer’s lie as simply a “mistake that anyone could make yet" he was arguing to the jury that the defendant is a liar for putting forth his defense. The fact that his officer only made a “mistake” yet our defense theory was a huge lie seemed incongruous to our jury, especially with his repeatedly calling my client a liar. His anger towards my client and me became so vehement that he finally told the jury that I was asking them to violate their oath as jurors by finding my client not guilty. To this I was truly shocked and objected in an extremely aggressive tone. The judge severely rebuked him in front of the jury. He lost further credibility. In this situation, knowing the judge as I did and with his ludicrous comment, I felt certain the judge would sustain my objection before I objected. (The judge was also fed up with his calling my client a liar too I believe, as was the jury). Throughout a trial I try to “gage” my jury — are they giving me permission to object strenuously? Are they giving me permission to aggressively cross examine a witness? Also, as I sat and listened to the prosecutor call us liars, I wondered if the jury might be thinking why would the prosecutor be over reacting in such an angry manner if he didn’t have something to fear? Did he doubt his case? I hadn’t done anything to anger anyone in the case except him. I knew by his tone and denigration of my arguments that he might have believed our arguments had resonated with the jury. I also knew that his anger was hurting his own credibility.

Learning Why Some People Need or Want Power

Abraham Lincoln once said: “Nearly all men can stand adversity, but if you want to test a man’s character, give him power." The phenomenon called “power” changes most human beings lives and personalities. We see what can happen to the personalities of some lawyers when they assume the powerful role of judges. We can even see what happens to some lawyers when they become successful - some forget what enabled them to become successful to begin with, often times humility, extremely hard work and extreme preparation and an openness and willingness to learn from others.
As effective advocates for our clients we should make an effort to understand what can happen to a person when they are appointed to be a state or federal prosecutor. What pressures are on them? Do they get judged by their superiors by the number of cases they take to trial or are they judged by the number of trials they win? What pressure would be on us if we worked in their office? How much discretion do they have over their cases? By understanding them better, I believe we can be more effective advocates for our clients.

Different Personalities of Prosecutors and Lawyers

The following are brief descriptions of a few basic personality types of attorneys I have experienced as opposing advocates. This short list is not all inclusive by any means. I must also qualify what I say about "opposing advocates" or prosecutors applies to defense attorneys as well. I have had more than one co-defendant’s lawyer in a multi-defendant jury trial exhibit these same character traits to the detriment of my client or other co-defendants.

A. The Look Good Attorney

For some lawyers their self-centeredness is “advanced” enough they use the justice system to provide them a stage upon which they can show “their stuff.” They have little allegiance to fair play and are more concerned about how they appear to other lawyers in their office, their bosses or how they appear or sound in the local newspaper or television. To them their own career is paramount to anything else. They have little compassion for the citizen and human being they call “the defendant.” They consider themselves far above the “criminal milieu.” Perhaps they haven’t lived long enough to appreciate the maxim that “there but for the grace of God, go I.” Perhaps they never will. I think people whho sit on juries can see through this and, if given enough time, can see the lawyer who "postures" for who he or she really is. Placing more emphasis on looking good and not being real or genuine causes people on the jury to lose trust in the lawyer. If you watch the great trial masters, I think you will find that their “out of the courtroom” personality is not much different, if at all, from their courtroom personalities. Most of the very best trial lawyers are compassionate, credible and respect the opinions and viewpoints of other people. As trial lawyers, if we strive to maintain our credibility and don’t over react to the inappropriate behavior of opposing counsel, we become the person in the court room that the jury can trust and believe. I think some cases are lost by the government because the government’s attorney or opposing counsel has been overly zealous, obnoxious and offensive yet at the same time they themselves believe that they “look as a lawyer should” to other people in the courtroom. Although justice is what people on the jury truly want to see in most cases, I believe occasionally juries find against a party because they truly dislike that party’s attorney.

B. The Self-Righteous Attorney

Other lawyers and prosecutors are more concerned about always being right. After all they are the Government fighting for the good against criminals. I once had a prosecutor tell me during plea negotiations when I questioned whether I could simply rely on his word in a plea agreement that “I was just going to have to trust the United States of America” meaning I was just going to have to trust him. He considered himself the United States of America. (The last time I checked, both he and I were merely citizens of the United States). Some of these prosecutors believe all defendants and their attorneys are equally bad characters. They do not see shades of gray - only black and white. They will ignore critical evidence that defense counsel provides them that makes it clear the State’s case is not well-founded or lacks a good faith basis to proceed. Nothing will deter this prosecutor or opponent from their original position that your client is guilty as hell. I believe often times, these lawyers are fearful of being wrong - they can’t accept that they may have made a mistake for if they do their own self-esteem will be eroded. Ego gets in the way of the real truth. When the case becomes more about the lawyer than the facts, the truth can’t be told in a congruent fashion where the jury will believe the advocates story. Some of the best trial lawyers “make themselves invisible” in a sense - the facts and witnesses are paramount and are what the jury remembers, not the lawyers posturing, great oratory or dazzling “brilliance.” In my opinion, the verdict in O.J. Simpson’s case may have been different if the prosecutors’ concern for their clothes, hair styles and personal relationships hadn’t become a significant feature in the case.

C. The Need for Power Attorney

Then there are those lawyers who have a personal need for power. These people generally enjoy the power they have over your client and you. Bullying witnesses and defense lawyers gives them joy in and of itself. Being a prosecutor may give them a measure of self-esteem or self-worth. Sometimes for the first time in their lives it seems like people respect them. They had finally become somebody when they became prosecutors. People who seek power to make themselves feel good about who they are often feel very inadequate personally and professionally. The self-esteem they obtain as a result of their position isn’t healthy self-esteem. Perhaps that’s why when these prosecutors lose cases they sometimes take it so personally - they think that losing the case is their personal loss. They don’t consider the facts may have something to do with the outcome. As we defense attorneys know, there are certain facts in our cases that we cannot change and must accept. Sure there are things we can do to present the facts in a way most favorable for our client but we can’t change the facts. It is sometimes horribly difficult to emotionally deal with, but our losses in trials are no more our losses than a when a doctor loses a patient to cancer. The cancer was not the doctor’s cancer anymore than our client’s cases are not our cases. I try to remember, when I do my absolute best, I never lose. My cases are not about me. Once I begin viewing my cases as about my client and his or her situation, I become a better lawyer. I get stymied by fear when my clients’ cases become nothing more than extensions of my own ego.

People in Positions of Authority
Certainly prosecutors are in a “position of authority” as are many of us in some form or fashion. Before becoming a state public defender in Pensacola 21 years ago, I spent a few years as a Florida State Prosecutor. I can still remember how it felt to be the “proverbial good guy with the white hat” (my boss told me that), the sense of power having a badge gave me and how it felt when I began my new job right out of law school as a new prosecutor. For goodness sakes, I was able to make decisions about the proprieties of arrests by law enforcement officers who had many more years of experience than I did! I also remember the “cloak of credibility” jurors seemed to give me merely because it seemed I was on the “good guys team.” (Something else my old boss told me).
Like many people, being a prosecutor was my first job out of law school. I was fortunate that being a prosecutor was not the first job I ever had in my life. I was economically very poor during different parts of my life and financially struggled to get through college and law school. This still didn’t instill in me an understanding that the fact I had a law degree really meant very little when it came to trying jury trials. In fact, much of what I learned and who I had become because of the law school experience hindered my effectiveness in the courtroom. Albeit I had some “life experience” I still didn’t fully appreciate, at least to the extent I do now, the power I instantly had over people’s lives merely because of the job I held.

Does Being an Advocate Skew an Attorney’s Perception of the Facts?

A young person fresh out of law school who becomes a prosecutor is especially vulnerable to the personality changes that may accompany the power over people’s lives they are given merely by their positions as quasi law enforcement officers. Some of the people with the best temperaments to cope with such authority may not stay at the prosecutor’s office long and are merely there to gain some trial experience before they move on in their careers. However, there are prosecutors who appreciate the power they hold over citizens lives and really seek justice and the truth. They learn and accept that some police officers and/or complaining witnesses will exaggerate facts to justify making an arrest or having someone arrested. These prosecutors want to learn facts beyond those facts stated in a probable cause affidavit and know when to be merciful in their plea negotiations and will dismiss a case when they come to realize they cannot in good faith proceed. However, like all people, they see the truth through the prism of their own experiences. After being entrenched in the criminal justice system, a prosecutor’s perspective, like the rest of us, may become skewed. After being part of the criminal justice system and defending people for 24 years, I have come to accept that I may not always see my client’s cases entirely objectively myself. I want to believe my client’s story. However, I try to make a sincere effort to evaluate the case honestly; if my client tells me some story that sounds bogus, I tell him. If he or she demands to go forward with that bogus sounding story I tell him or her they need to find a different lawyer. Sure, everyone deserves a defense, but I believe a client deserves a lawyer who believes in their story as well. (Unfortunately, the courageous people at the Public Defender’s Offices can’t be so choosey).

In a Florida Criminal Court I recently resolved a case in Pensacola where my client had been charged under Florida Statute 825.102(3) with “neglecting or abusing an elderly person,” a third degree felony, by failing to timely pay her mother’s nursing home bill. Although it took considerable research, depositions, dealing with a very antagonistic and hostile nursing home administrator and having a hearing before the felony court judge, we were able to get the case dismissed by filing a “motion to dismiss” pursuant to Fla. R. Crim. P. 3.190(c)(4).

My client’s Mother had lived with her until her mental health had decompensated to where her Mother could no longer be left alone. My client made the tough decision to admit her mother to a nursing home. She had signed a civil contract with the nursing home to cover costs of her Mother’s care if her mother did not meet the necessary costs of her being housed in the home. After wrangling with the Social Security Administration my client was able to get her mother qualified to receive medicaid. The medicaid monies were being deposited directly into the Mother’s account on which my client had signature authority. Once medicaid had been approved, my client and her Mother became behind on paying the home. The nursing home called my client three times and sent her two letters requesting payment. Because of other genuine serious family issues she didn’t place a lot of priority on paying the home and waited almost five months to get a cashier's check to them. However, in the meanwhile, the nursing home administrator had called the Florida Department of Family Services who subsequently reported the case to law enforcement. DFS requested that my client be arrested for “Neglect And/or Abuse of the Elderly” for not paying the home. Law enforcement applied for and received a warrant. After my client had paid the $7,000 delinquent bill she was arrested and subsequently bonded out of jail and awaited trial.

The State’s theory was that because the Mother could have been involuntarily discharged it could reasonably be expected that my client’s actions (not paying the bill) could have resulted in psychological or physical injury to her Mother. What the State didn’t consider is the contract required the nursing home to provide my client with 30 days written notice of the involuntary discharge thus eliminating the possibility that her mother merely would have been wheeled to the curb of the sidewalk of the home. Furthermore, the prosecution’s theory was based on future conduct or events which had not taken place and was based purely on speculation and conjecture. Because of these reasons, the Court found in our favor and dismissed the case. I told the Court my client had learned to pay her bills on time regardless of what’s happening in her life. More importantly, our already overburdened Florida Criminal justice system was not bogged down with an unmeritorious criminal case. Our system is not fool proof by any means, and certain unfounded criminal cases get prosecuted across Florida and our country everyday. Our founding father’s eliminated debtor’s prison’s long ago.

The internet has improved our lives in many ways. We can now chat with people all over the world, have information at our fingertips better than any encyclopedia sold in days gone by could provide, arrange travel ourselves, etc. – overall it can make managing our lives much more convenient. However, in the criminal sphere, is it is now possible for someone to commit a crime without leaving their home that could result in their spending the rest of their life in prison.

In federal courts in Florida and around the country, people, predominantly men, are being convicted of possession and distribution of child pornography resulting in extremely lengthy federal prison sentences. On the average, sentences imposed upon most of these offenders, who have little or no criminal histories whatsoever, are eight years or more. These offenders have not produced images or films, taken pictures of children themselves nor have they had any contact with child. In fact, according to forensic psychological studies, most offenders being prosecuted are not pedophiles. Most have little or no criminal history. Many offenders are men browsing pornographic web sites and downloading images of adults and underage, predominantly female, images. Some are snared by federal undercover investigations that subpoena records from credit card service provides such as Paypal to obtain lists of customers who subscribe to a particular website. Many of these illicit websites are located overseas. Others, who tend to more likely to be pedophile offenders according to the experts, are found in chat rooms having sexual explicit conversations or exchanging sexually explicit materials with individuals who they to believe underage but are actually undercover agents posing as such.

The federal child pornography guidelines have increased in their severity four fold in the last decade. The exact same offense conduct that in 2003 carried a 27 to 33 month sentence of imprisonment now carries a 78 to 97 month jail sentence. Although the guidelines are now only advisory after the U. S. Supreme Court’s Booker decision in 2005, most federal courts sentence within those guidelines unless they are presented with extraordinary factors and/or the nature and circumstances of the crime are unusual enough that the offense conduct does not warrant a “guideline sentence.” Because of the odorous nature of child porn, judges, like people, are repulsed by the offense itself making persuasive arguments for downward departures or variances from the guidelines difficult to obtain. A recent study conducted by the United States Sentencing Commission has however found that downward variances in child pornography cases are being imposed in 39% of the cases because even the courts are recognizing these guidelines are too severe. This doesn’t mean the offender is getting probation or merely supervised release - far from it. This only means the offender is receiving a sentence of imprisonment somewhat less than what the advisory guidelines calls for.

Also, the offender convicted of possession of child porn will not go to a federal “camp” but will go to at least a low security federal prison. He will also carry with him the stigma of being a person who committed a crime against a child to prison with him; people who enter the prison system fabricate a crime they committed so other inmates will be less likely to know why they are doing time to avoid retribution from other inmates. Also, the offender, when he is released from prison, will not only be on supervised release for what may be the rest of his life, but will also be classified a sex offender under the Adam Walsh Act and have serious restrictions placed on where he can live, who he can associate with and what jobs he can hold.

Peer to peer networking causes people to sometimes “unknowingly” distribute illegal images previously downloaded from the file sharing network. I worked on cases where people snared in child porn stings where they have set their computers to downloaded images on a peer to peer network system, like Kazaa or Limewire, while they are sleeping not knowing exactly what materials are being downloaded. What can happen is that they unknowingly download movies that include children. Once the movie is downloaded it is not erased from the hard drive of a computer by merely deleting it. It is there until the deleted material is overwritten by other material, which may never occur. Law enforcement can obtain IP addresses of customers of these sites and determine what materials have been downloaded and list such downloading in an affidavit for a search warrant as probable cause to search the person’s home and seize his computer and any other materials related to the alleged offense. An excellent resource for practitioners who become involved in internet pornography cases is Strategies for Defending Internet Pornography Cases

The child pornography federal sentencing guidelines are under attack by some district courts and other entities because legislation was “snuck in” that increased their severity without any empirical basis making an adjustment upward necessary. Generally, federal sentencing guidelines are formulated by the US Sentencing Commission based upon years of study and experience dealing with certain offenses. The amendments requiring four-fold increases to child porn guidelines did not receive this scrutiny because the amendments to the guidelines were attached to other legislation by a freshmen congressman at the recommendation by Justice Department officials. See Troy Stanebow Article "Deconstructing the Myth of the Child Pornography Guidelines"

Child pornography is a serious matter and efforts should be made to eliminate it entirely. However, guidelines that require, in many instances, sentences of 10+ years for someone who possessed materials, who has no likelihood of recidivism, who is a productive citizen, who has no criminal history and who will be strictly monitored the rest of his life is not reasonable in every case. Of course, albeit some congressman may believe this as well, it would be politically disadvantageous for him or her to suggest a more reasonable sentencing structure now that the guidelines have already been enhanced resulting in these draconian sentences.

When John's Mother learned he was arrested in Pensacola and placed in jail on a $100,000 bond she didn't know what to do. She had never had any dealings with an attorney before in her life and neither had John who had no criminal history except a couple traffic tickets. She didn't know what she needed to do to help her son who was calling from in the jail begging for her help. For the first time in her life she felt helpless. Does she call a bondsman? Who are they and what do they do? Or does she call an attorney? Where would she find one? She picks up the Yellow Pages and sees page after page of attorneys advertisements, some claiming that they will "fight hard for you" and others ads saying self-serving, aggrandizing statements of what they will do if she hired them. She had limited resources and knew she wanted her son out of jail. Should she just start calling them? She decided she needed to do something so she started calling attorney after attorney. Many didn't call her back. How interested could they be in helping if they didn't call back? Or maybe they were just too busy. Some called back but didn't want to talk to her for very long with charging a fee. How could she know if the person was the right attorney for representing her son?

Unfortunately, this is the situation many people are faced with when a loved one is arrested. I know I hate to pick up a phone book and call any service related business, be it plumber, electrician, car mechanic, out of the blue and hope that I get someone who will be honest with me and who I can trust. The other day I had trouble with a car who my regular mechanic didn't service, so I called him and asked him who would he call if he had a car like mine to give me honest and trustworthy service. I knew good service wouldn't be cheap. Much the same can be done if your loved one is arrested. Call friends who may know an attorney and ask them their advice. Chances are even if the attorney who they know doesn't handle criminal cases he will refer you to several who he considers reputable. Ask that attorney, if he or she were in trouble, or if a loved one was in trouble, who would they use? If you know people who work in the court house, or people who know people who work in the courthouse, get them to call for you and get some names of reputable attorneys.
Picking someone out of the phone book may yield good results; however, the phone book is probably not the best place to obtain someone's name who will have the responsibility of having your loved one's future life and liberty in their hands. You want someone who you can communicate with easily, who doesn't talk over your head, who listens extremely well. Most attorneys are not trained to be good listeners. Law school doesn't teach lawyers how to listen; if fact quite the opposite: it teaches people how to be adversarial. Being adversarial is not necessarily, in my opinion, what wins cases or what your loved one may need in an attorney. The best attorney in the Courtroom is the most prepared attorney in the Courtroom. One side wins by being more prepared than the other. Of course, facts cannot be changed and not even the most prepared attorney can always win. There is no real life Perry Mason. (By the way, Perry did lose one case; of course it was reversed on appeal. How Hamilton Burger, the prosecutor, kept his job I don't know).

You also should understand that even the simplest case may take six months or more to resolve. More serious cases often take well over a year. So it is important that you hire an attorney who you can build a relationship with and who will take the time to get to know you or your loved one as a person and yet, at the same time, they must have the skills and drive necessary to effectuate the most positive outcome in the case.

Calling friends and relatives who may know people involved in the system may be invaluable in the long run. Even if you have to use the phone book and "cold call' attorneys, be sure to personally interview the attorney and use your "gut" intuition about him or her. Is the attorney someone you feel comfortable with? Did they seem to know the nuances of the local judicial system? Did they make any attempts to learn about your or your loved one's case before you came in for the interview so they could maximize the value of the interview time? Did the person come highly recommended by another attorney? Was the attorney's staff pleasant to deal with? Were they patient with you when you called initially to set up the appointment with the attorney? You will also be getting to know the staff of the attorney during the progression of the case, so you need to have a level of trust and confidence in them as well. Also, another question you may ask yourself is if the case is one that should go to a jury trial, how will the attorney you interview relate to or connect with the people on the jury?

Overall, effective criminal defense lawyers are extraordinarily caring people otherwise they would not be successful in private practice. A non-caring attorney can only "fake it" for so long. Trustworthiness, caring and the willingness to prepare every aspect of the case are the attorney's best assets.

In Santa Rosa County last week four individuals from Escambia and Santa Rosa County entered pleas relating to state court charges of RICO, Florida Statute 895.03, which basically means “running a criminal enterprise by a pattern of criminal incidents.” In this particular case, the pattern of criminal activity allegedly occurred over a seven year period and stemmed from using local “models” or actors and actresses primarily from Pensacola as performers in sexually explicit movies. The movies were then uploaded to a website known in cyberspace under the screen name “Ray Guhn.” At it's peak the website had 5000 subscribers. The only way to access the sight was to pay the $30 per month access fee. The website still exists but has been sold to a new owner. There are 100s of other similar sexually explicit sites as well as many sites which involve "harder core" pornography. I represented the General Manager of the web site. In exchange for pleas the state dropped some of the charges against the defendants and agreed to a range of imprisonment of two to four years for the General Manager and three to five years for the owner of the website. They faced a maximum sentence of 60 years plus but if convicted after trial they may have realistically received sentences ranging from 10 to 20 years.

The prosecutor, by merely by using the RICO statute, made the "Ray Guhn" case much more serious than a "simple" distribution of obscene materials case. Jerome Mooney, Esq., a past president of the First Amendment Lawyer's Association, represented the owner of the web site. Mr. Mooney stated in a recent article about the case for the Adult Video News Magazine: “there were unique factual aspects of this case which made it different from the traditional obscenity case.” Specifically, in addition to the allegations of distribution of obscene material, the allegations involved a few of the performers claiming they had been provided controlled substances by one or more of the named defendants, that the use of escorts to make these films was legally prostitution and the mere payment of adult to perform sexual acts was a violation of Florida's prostitution law. Most of these same performers have pending RICO charges alleged against them for their involvement in escorting services in Pensacola that will not be resolved until after the resolution of this case. These witnesses were cooperating with the prosecution in hopes their own sentences would be reduced.

If the case had proceeded to trial, the State would have attempted to offer evidence of numerous bad acts, charged and uncharged, of both my client and the other defendants. RICO carries with it a Level 8 on the Florida Criminal Code Punishment score sheet and enhances what otherwise might be simple misdemeanors to a first degree felony punishable by up to 30 years in state prison. The government would have had to have proven the Racketeering offense is supported by "predicate acts or incidents." Specifically in the Ray Guhn case those predicate acts were prostitution, distribution of obscene materials and distribution of controlled substances. Because the defendant’s were additionally charged with Conspiracy, a level seven on the Criminal Code Punishment score sheet, to convict any of the defendants all a jury would have had to have found was that anyone one of the four defendants committed two incidents of either obscenity, prostitution or drugs within a five year period of time. A rather simple thing for the government to prove to establish such a serious crime. In exchange for pleas the government agreed to dismiss the conspiracy charges. The owner, who was solely charged with money laundering, entered a plea to that count, which is a Level 9 first degree felony.

It is because of the potential for abuse of the RICO statute, which was modeled after the act originally designed by the U.S. Congress to apply to organized crime under federal law, there are many appellate cases, including cases from the Florida Supreme Court as well as the U.S. Supreme Court, that caution prosecutors not to apply RICO to garden variety criminal undertakings to merely elevate what otherwise are less serious criminal law violations to a first degree felony. This often results cooperation of less culpable defendants who suddenly are facing long prison terms if convicted. Gross v. State, 765 So.2d 39 (Fla.2000), cautions the concept of a "criminal enterprise" is not to be applied to “garden variety criminal undertakings.” Id. at 49 n. 5.

The community in which the obscene materials were to be judged was Escambia, Santa Rosa, Okaloosa and Walton Counties, probably four of the most “conservative” counties in the State of Florida. The case ultimately should have no precedential value on what is or is not considered obscene in the four county area because there was no finding of obscenity by a jury.

In light of the my client and the other defendants sentencing not being scheduled to be heard until August 11, 2008, it is not appropriate or ethical to discuss their case or the government’s case in more detail at this time. This article regarding RICO and the reporting of the pleas in this case will be followed by an article attempting to make sense out of what is or isn’t obscene and what material is legal or illegal to possess. The law establishing the test for obscenity was devised in a 1973 U.S. Supreme Court case Miller v. California, a case decided 35 years ago before anyone thought there would be a community called "cyberspace." This will be a challenging article to write. Last year I as invited to join the First Amendment Lawyers Association, an organization filled with intellectuls, professors of law and ardent defenders of the First Amendment. Although I am a just a trial lawyer, I have to say that the lawyers associated with this group are some of the best in the country at what they do, that is defend your right to be you and my right to be me.

The widespread use of the internet has created a new area of criminal prosecutions in Florida, other states and nationwide in the federal criminal justice system. Not only are illegal sexually explicit materials more readily available to consumers who, prior to the internet, did not have easy access to such materials, but now, according to a recent U.S. Supreme Court ruling, the mere communication over the internet, telephone, mail or other medium that one has illegal materials and offers them for distribution can be the basis for a criminal prosecution resulting in a lengthy prison sentence, even if those materials don't acutally exist. (I am beginning a jury trial in Milton, Florida on June 30, 2008 defending the so called "general manager" of an internet porn site who is charged with racketeering based upon distribution and production of obscene materials and prostitution from the Pensacola and Milton area. The case originally was filed in Pensacola, Escambia County, but after one year the prosecutor changed venues to Santa Rosa County, presumably a more conservative venue. The Pensacola porn web site case will be the topic of another article).

On May 19, 2008 the United States Supreme Court issued an opinion in U.S. v. Michael Williams, Case No. 06-694, by a 7-2 vote, which presented the issue of whether merely communicating to another individual that a person possessed child pornography for sale or distribution was illegal, even though there was no actual child pornography existed to be exchanged. Justice Antonin Scalia’s majority opinion in this case construed the statute so narrowly as to allay the First Amendment concerns of Justices Stevens and Breyer, who are considered more liberal, and win their full concurrence.

This issue has it's genesis in a new federal law that was implemented as a response to the U.S. Supreme Court's 2002 decision in Ashcroft v. Free Speech Coalition, which found the federal law unconstitutional because it punished someone who merely offered illegal materials when in fact the materials were not illegal. Ashcroft involved someone who was promoting adult pornography as child pornography when in fact the models were adults. After Ashcroft, in 2003 Congress rewrote the law to make it illegal to pander illegal materials even if the material do not actually exist. (The "Protect Act"). In the Williams case, the Justice Scalia wrote the opinion so narrowly that the case left open for interpretation freedom of speech issues as it relates to the mere discussion of Hollywood movies, like the Titanic, which involves sex between youth under 18 years of age. (Remember the sexually oriented scene where the two teens are having sex in a car located in the cargo area of the ship). The Court held that sexual expression which involves children is both constitutionally unprotected and illegal. It also reiterated it's continuing position that sexually explicit expression which does not depict actual children remains constitutionally protected unless it is legally obscene. The Court stated:

"Child pornography harms and debases the most defenseless of our citizens. Both the State and Federal Governments have sought to suppress it for many years, only to find it proliferating through the new medium of the Internet. This Court held unconstitutional Congress’s previous attempt to meet this new threat, and Congress responded with a carefully crafted attempt to eliminate the First Amendment problems we identified. As far as the provision at issue in this case is concerned, that effort was successful."

This opinion may cause concern for the producers and marketers of the genre of the adult entertainment industry who advertise sexually explicit "teen" materials. Does the mere use of the word "teen" in advertising it's material violate the new pandering law implemented by Congress? The Williams court did not address this issue. Most of these websites involve models that are 18 and over but some depict them in a manner to suggest they may be younger. These sites may run the risk of being prosecuted under the interpretation of the 2003 law that the Supreme Court upheld as constitutional in the Williams case.

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