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.

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.

For as long as humans have existed, there have been those among us who view children, even babies, as objects of sexual desire.... But the advent of the Internet has, in the words of a veteran federal prosecutor, "exploded" the crime into a societal issue so huge that it requires a host of agencies and a litany of initiatives to combat.

"I think we're certainly more aggressive in prosecuting these cases, but there's no doubt in my mind the Internet has exploded this," Knoxville Assistant U.S. Attorney Charles Atchley said. "Before, it was very difficult to obtain. You had to visit a location that was selling the material. What the Internet has done is enable individuals in their own homes to go out and look for this material. Now they've got the whole world of it at their fingertips. It's just a terrible problem, a terrible problem."

The bottom line is the Williams case makes it clear that those in the adult entertainment industry, or people in general, cannot suggest in any manner that the material they offer might be child pornography or involve sexually explicit conduct by people who are less than 18 years of age or they will face severe legal consequences.

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. The American Bar Association Project on Standards for Criminal Justice expressly charges defense counsel to have a third party present at a witness interview or the defense attorny runs the risk of forgoing proper impeachments should that witness change their testimoney at a later hearing: “Unless the lawyer for the accused is prepared to forego impeachment of a witness by the lawyer's own testimony as to what the witness stated in an interview or to seek leave to withdraw from the case inorder to present his impeaching testimony, the lawyer should avoid
interviewing a prospective witness except in the presence of a third person." ABA Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function and Defense Function. A 7- 4.3(d) (Approved Draft 1971).

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, new, generally non-lawyer specialists in criminal cases have 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. There are people who specialize in mitigation in Florida as well. 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 possibly along with an investigator 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 resulting in both a benefit to the client and the victim/witness.

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. A 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.

The prosecutor often doesn't get the full story from the investigator who often is hell bent on making his or her arrest based on probable cause only. I recently met with a detective prior to the arrest of my client and provided him with several hours worth of reading materials ---- objective evidence that the investigator should have reviewed and factored into his probable cause determination. (Transcripts from prior proceedings involving a civil matter that cast doubt on the accusers story; polygraph test of my client; witness statements favorable to my client that I had obtained) The prosecutor just received the paperwork from the investigator and, of course, it did not include any of the documents I had given him, including the fact my client had taking a polygraph showing he did not commit the crime, nor any reference to the additional information in his arrest report. The invesitgator in this case obviously ignored everything I had provided him and didn't feel it necessary to even provide these important documents to the person that was ultimately responsbile for making the formal chaging decision, the prosecutor. This is just an example of how sometimes the prosecutor doesn't get all the facts, even when law enforcement has the additional information in their possession. It is the defense attorney's job to decide whether to educate the prosecutor. In this case, just the fact that this particular client has passed a polygraph by a preeminent polygraphist may make the prosecutor question the viability of his or her case; thus the education process begins. Diligent defense attorneys do not pass up any opportunity to see that justice is done for their clients. Educating the prosecutor and/or the investigating officer about the truth may be necessary. Sometimes it falls on deaf ears; sometimes it results in your client avoiding being prosecuted entirely.

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. Possession GHB and GBL, two other drugs known to release growth hormone to assist body builders to develop their physiques, carries with it extreme penalites under Florida's newly enacted laws making their possession illegal. Mere possessing a relatively small amount will mandate a three year minimum sentence. (In Florida, the mere possession of some drugs in sufficient enough quantity is considered trafficking and carries a minimum mandatory prison sentence - it makes no difference whether the individual had any intent to distribute the drug or use it for personal use).

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.

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.

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.

It was not until I became involved with the National Criminal Defense College and the Trial Lawyer’s College that I actually practiced trial skills in front of other more highly trained trial lawyers who critiqued my abilities and methods and made suggestions of how to improve. Gerry Spence’s program (TLC) is the best in the country in my opinion because, if you are courageous enough to take risks with finding out who you really are, his methods enable you how to better understand yourself and therefore more effectively understand other people. Other people include insurance adjusters, cops, prosecutors, insurance defense attorneys and judges to name a few. His methods also allow you to understand and know your client at a deeper level and discover the real story of his or her case. What is it that truly motivates a witness in your case? What is it that is driving the prosecutor to obtain a conviction or an insurance defense attorney to defeat your client’s claim to obtain money damages for serious injuries caused by the negligence of the insurance company’s insured? These are some of the questions that you may be able to answer if you use the methods taught at TLC. For more information see Gerry Spence’s Trial Lawyers College at www.triallawyerscollege.com or my web site.

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.

Criminal charges are still a possibility in the criminal felony case against Pompeyo. However, after the Judge sent Bugsy home with Pompeyo, in a civil case where there is a lessor burden of proof than a criminal case, we are hopeful that the State Attorney's Office will not file any charge. Dropping the case would be the right thing to do. Now, after there has been a favorable reporting in the media of Bugsy's being reunited with Pompeyo, it would also be a politically popular thing to do as well.

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.

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?

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.

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.

The statute does not require any relationship between the criminal act, here attempted aggravated battery, and gang membership. Under the statute, the defendant's punishment is enhanced for the substantive offense plus gang membership without the need for any nexus between the particular criminal act and such membership.

More recently, in Wyche v. State, 619 So.2d 231, 237-38 (Fla.1993), this 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 (quoting Walker, 444 So.2d at 1138).

Applying the reasoning of these cases, we conclude that section 874.04 violates a defendant's substantive due process rights because the statute subjects the defendant to conviction for a higher degree crime than originally charged, resulting in an increased penalty range, based only upon a defendant's “simple association” with others, who may or may not be criminals. O.C., 722 So.2d at 842. As explained by the Fifth District:

The statute does not require any relationship between the criminal act, here attempted aggravated battery, and gang membership. Under the statute, the defendant's punishment is enhanced for the substantive offense plus gang membership without the need for any nexus between the particular criminal act and such membership.

State v. O.C. 748 So.2d 945, *949 (Fla.,1999)

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?