If you said something in opening that is not "proven up" in the trial, the prosecutor will surely hammer home your omission in his or her closing. However, the jury, if they trust you, should be reminded that you have no burden to prove your case and when the case began you had no idea that the government would not even meet it's burden of proof beyond a reasonable doubt so therefore you had no obligation to put on the small amount evidence that you didn't. (A trial lawyer must be careful with this last concept because if your case is substantially overstated in opening, you will lose credibility and trustworthiness, which are necessary to win your case).

Albeit opinions vary on this issue, and I don't like to say "never," I believe it would be the extremely rare case when a trial lawyer would want to waive an opening statement.

If you have had a successful voir dire (lawyer term for jury selection) wherein the people on the jury trust and respect you because in short, you have shown great respect and honor towards them, delivering a convincing, trustworthy detailed story in opening can devastate opposing counsel's case provided you don't lose that credibility and trust throughout the rest of the trial. You must show them throughout the rest of the case what you said in opening is actually true.

Hopefully most of your client's story can be told through cross examination of the State's witnesses themselves. If you waive opening, the jury won't even know what points, especially subtle points, you are making during cross examination of the State's witnesses that add to you and your client's credibility.

For more on effective trial practice see other articles in this blog and Pensacola and Florida lawyer Jim Jenkins website.

For more on Gerry Spence please see www.triallawyerscollege.com or click on his name in this sentence.

However, for the last ten years has been abused in several different ways. It’s been abused and distributed improperly not only by doctors, who sometimes over prescribe it, but also by people who become addicted to pain killers, often time even starting with something less strong, such as percocet, Lortab, or other opiate medication. Often times, opiate addiction, including oxycontin addiction, can lead to heroin addiction because if someone who is addicted to opiates cannot obtain an opiate drug, they can obtain a similar physical effect from heroin. (And also keep from becoming extremely ill). Addicted people can take copius amounts of oxycontin, or roxycontin, which is basically oxycontin but is immediate acting, in such amounts that would kill a person who has not built a tolerance to the drug, which enevitably happens. (Oxycontin is a time release drug; some abusers will often crush it and snort it, smoke it, or reduce it to liquid and inject it directly into their veins).

There are two very different circumstances under which opioid analgesic medications are used inappropriately even if prescribed by a doctor. First, there are some licensed physicians who have simply ended their legitimate practices and are creating bogus pain management clinics, at which prescriptions are sold with no pretense of quality care and not in compliance with the statutory "standard of care" which applies to physicians. These physicians are being prosecuted, in most cases by the federal government, however state court cases exist in smaller numbers. Dr. Graves of Pensacola and Pace, Florida was prosecuted in state court in Milton, Florida many years ago and was sentenced to 60 years in prison. These classes of cases always involved "distribution of controlled substances resulting in death." Someone has overdosed, died, and the government's theory is the doctor presribed the pain killer not in accord with the "standard of care" necessary for this drug to be prescribed. These prosecutions have resulted in some doctors not prescribing the drug even though it is the drug that should be prescribed. Second, there are compassionate and caring physicians who are periodically duped into prescribing opiates for addicts or dealers, believing these people to be legitimate patients who need pain management, and who arguably don't breach the standard of care for prescribing these drugs. Law enforcement authorities indicated that the effective prosecution of the first group is difficult, because the offenders claim to be within the second group.

Of course, even on the counts that do not involve death, the doctors are also prosecuted for medicare/medicaid fraud by the government's claim that the drug were not necessary and therefore the doc sending the bill for his or her payment to be fraudulent.

In my humble opinion, the government prosecutes the right people sometimes. Innocent people do get convicted everyday in state and federal courts everyday. We only hear about those who have been on death row or serving life sentences who are released because of newly tested DNA evidence. However, imagine the thousands of people who are innocent but convicted of crimes where there is no DNA evidence. The people making the decisions to present cases to grand juries are only human and see people and crimes through their own "set of glasses." Grand juries generally follow the government's request; not always, but most the time. You probably have heard the phrase "the government can get a grand jury to indict a ham sandwich" meaning they can present what ever evidence they want to obtain an indictment. Hearsay is admssible and there is no judge present during the grand jury proceeding to impose any evidentiary code requirements.

The system isn't perfect. It would be better if there were checks and balances that don't exist at some levels of the criminal justice system.

An interesting decision was rendered the First District Court of Appeals in Shootes v. State, ---So. 3rd ---, 2009 WL3353139 (Fla. 1st Dist. 2009) on October 20, 2009. This is the appellate court that hears appeals from Pensacola, Tallahassee and Jacksonville, and all places in between. The case involved charges of aggravated assault with a firearm on a police officer. Jacquan Shootes was convicted of two counts of aggravated assault on a police officer. The case stemmed from Shootes car being hemmed in by two undercover Jacksonville narcotics officer’s cars with deep tinted windows to which Shootes argued at trial he thought were robbers --- hence he opened fire upon them. Officers testified they announced who they were, were dressed in clothing marked “Police-Narcotics Unit” and had badges around there necks or on their bodies somewhere. If a person does not realize a person is a police officer who advances upon them an issue of self-defense is presented if the defendant claims he did not realize they were law enforcement officers before force was used. The most significant issue in this trial was whether Shootes could identify the individuals who hemmed in were law enforcement officers or not.

What happened during closing arguments is what makes this case interesting. Anywhere from 50 to 75 uniformed Jacksonville Sherriff’s Officers showed up in Court. Just like you or me, they have a right to be present; court is open to the public. However, this large congregation of uniformed officers sat as close to the jury as they possibly could. (For some unexplained reason the trial was moved to a larger courtroom for closing arguments). Some of the deputies were dressed like undercover narcotics officers wearing clothing marked “Police” or “Narcotics, Jacksonville Police Officer.” The defense attorney did not notice the huge mass of officers sitting behind him during his presentation until after his argument. The jury convicted Shootes as charged and the defense attorney moved for a new trial based upon Shootes Sixth Amendment right to a fair trial was denied. The trial court denied the motion stating that the large conglomeration of law enforcement did nothing to communicate with the jury. The presence of courtroom observers wearing uniforms, insignia, buttons, or other indicia of support for the accused, the prosecution, or the victim of the crime does not automatically constitute denial of the accused's right to a fair trial. Holbrook v. Flynn, 475 U.S. 560 (1986) (four uniformed officers seated immediately behind defendant); Carey v. Musladin, 549 U.S. 70 (2006) (fair trial not denied by wearing of buttons with photo of victim by some members of victim's family). However, there are situations where the atmosphere in the courtroom might infringe on the defendant's right to a fair trial. When this issue is raised, a case-by-case approach is required to allow courts to consider the “totality of the circumstances.” Holbrook v. Flynn, 475 U.S. 560, 569 (1986).

The appellate court found that, pursuant to Florida Rule of Criminal Procedure 3.600(b)(8) and the Sixth Amendment of the U.S. Constitution the trial court should have granted a new trial because he did not receive a fair and impartial trial. The appellate court found that in light of the huge number of officers sitting so close to the jury that an unacceptable risk of impermissible factors may have come into play in determining the jury’s verdict. There was a substantial basis to believe the officers were there to convey a message to the jury, specifically, that Shootes had to recognize the four officers who jumped him as being officers and that the large number of officers showing up for the closing argument wanted a conviction. The Court found fundamental error and granted the defendant a new trial. His fate is still uncertain in light of his upcoming pending trial.

Although I don’t recall the name of the specific case, we had a similar situation in Pensacola occur approximately 15 years ago, except the large number of officers (25 to 40) showed up at a sentencing hearing of a defendant convicted of a crime involving a law enforcement officer. The officers appeared to influence, or perhaps intimidate, the judge into imposing a severe sentence. However, the judge’s sentence, as I recall, was not in the least affected by the officer’s presence.

If fairness is what is desired by all parties involved in the criminal justice system, is the behavior of the Jacksonville Sheriff’s Department turning out at least 50 officers for the closing arguments in the Shootes’ case indicia of an organization that is fair minded? One has to ponder, if officers would display such behavior in the public fishbowl of a courtroom, what might happen on the street late at night, when it is only you and them?

As a young boy in August 1969 I remember the horrific murders of Mr. Polanski's young, beautiful pregnant wife Sharon Tate and her friends at Polanski's and Tate's Hollywood Hills home, as well as the vicious murders of couple, the La Bianca’s, a day later, both murders being committed by the followers of cult leader Charles Manson. To say Roman Polanski has had some challenging times in his life is an understatement. Apparently his parents were both murdered in the Nazi concentration camps during World War II and he hid out as a small child in order to not be exterminated himself.

I also remember Mr. Polanski leaving the country in 1978 after he had pled guilty to one count of “unlawful sexual intercourse” after his attorney and the prosecutor had met with the Judge in the case, after Mr. Polanski had pled to the charge, who said he was not going to honor the plea agreement and wanted the lawyers to go forward with the plea hearing and then, subsequent to the news media leaving the Courtroom, he would modify his sentence to time served if Mr. Polanski agreed to sign a document agreeing that he would be deported from the United States. The original deal that had been struck included giving Mr. Polanski 90 days of incarceration so he could be mentally evaluated at Chino State Prison. However, onlyt after 42 days the doctors gave him a "clean bill" of mental health and he was released. Prior to his release, the Judge had been highly criticized for being so lenient on Mr. Polanski by only imposing a 90 day sentence. This is why, according to the prosecutor and defense attorney, who are both still living, the Judge planned to reneg on his deal and instead of giving Mr. Polanski 42 credit for time served he wanted to impose an additional 48 days in prison and wanted Mr. Polanski to agree as part of the modified plea agreement to be deported. This would have been an illegal sentence in light of the fact the judge had no authority to have Mr. Polanksi agree to be deported. The victim of the sexual battery and her mother agreed to the original deal and wanted the case to be resolved. Also, according to media reports, Mr. Polanski at some point paid the girl and her mother $500,000.00 in a civil settlement relating to the case. (According to some sources this money was not paid by Mr. Polanski). However, it is irrelevant whether there is a a civil settlement because any crime is a crime againt the state, not the individual.

Now, that the 76 year old Polanski has been arrested, the girl who was molested, now a 43 year old mother with three girls of her own, does not want to drudge up the past by bringing Mr. Polaski back to the U.S. to impose a sentence.

I recently read the grand jury transcript of the testimony of the girl, who was then 13 or 14 years old, and, frankly, the facts, if true, are quite egregious. The sexual battery occurred in the home of Jack Nicholson when no one was home. However, Angelica Houston, Mr. Nicholson’s girlfriend at the time, returned home while the Mr. Polanski was engaged in sexual intercourse with the 13 year old in one of the bedrooms. She did not know that Mr. Polanski was engaged in intercourse with the young girl. To read a copy of the transcript click here: http://www.thesmokinggun.com/archive/years/2008/0610081polanski1.html

So the debate and question that seems to be on people’s minds is should he be extradited and prosecuted now, after more than 30 years have past and “having done the crime, should he do the time?” (A quote used by many people commenting on this case). He did plead guilty; he thought he had a solid plea agreement between the judge, the prosecutor and his defense counsel; the judge because of his own self interests reneged on the agreed upon plea deal after Mr. Polanski had pled guilty so Polanski he leaves the United States the day of his sentencing to never return to avoid a jail sentence. According to a documentary on this case, even the prosecutor of the case, said he understands why Polanski would have left the country.

Also, the judge, after Polanski had left the U.S., held a news conference about the case citing was he was intending to do: impose 48 more days and order Polanski to be deported. It is against judical canons to comment on a pending case outside of the courtroom; however, this judge did not seem to care to abide by this rule.

Since his departure from the U.S. he has won various awards relating to movies, including winning an Academy Award in 1993 for the movie “The Pianist.” His supporters, which include many people in the movie business, cite his difficult upbringing, his parents being murdered during the Holocaust, and the trauma of having his pregnant wife viciously murdered as a basis to not extradite him. His detractors say he shouldn’t be given special consideration because of his wealth and fame nor does the fact that more than 30 years have passed since the crime was committed mean he should be given a “free pass” in light of his having become a fugitive from justice. Mr. Polanski is now under house arrest having posted a $4.5 million dollar bond. He is allowed to stay inside his Swiss Villa where he will wear an ankle monitor until he is either returned to the United States or his extradion issue is resolved.

As we heard heard in Glenn Frey's 1985 hit song Smuggler's Blues: "I'm sorry it went down like this, someone had to lose, It's the nature of the business, it's the smuggler's blues," sooner or later, someone who chooses to distribute or sell narcotics is going to lose - it's the nature of the business, they will be arrested and face, in most cases, a lengthy time in prison.

We have all heard “a man’s home is his castle.” In 1644, English jurist Sir Edward Coke (1552-1634) was quoted as saying: 'For a man's house is his castle, et domus sua cuique tutissimum refugium' ('One's home is the safest refuge for all'). However, there are exceptions to when a man or woman’s "castle doors" can be knocked down by the police, entered and searched without the permission of the owner of the castle.

In order to enter your home to begin a search, the police must either have the citizen's “consent” or have probable cause to believe that the home contains evidence of a crime in order to obtain a warrant to search your home from “a neutral and detached magistrate judge.” (There are a few exceptions). Some officers know which judges are more inclined to issue a warrant than other judges when they make application for a warrant.

Often times when people are faced with police knocking asking at their door requesting they be allowed in, a surprisingly large percentage of people acquiesce and allow them in for fear if they refuse they may be bringing suspicion upon themselves or avoiding the inevitable - the police will come in anyway. However, a citizen has an absolute right not to allow law enforcement into their home if they do not have a warrant under most circumstances.

Probable cause to search for narcotics or drugs serving as a basis for a warrant is usually obtained in several manners. One, the police may obtain intelligence information from cooperating witnesses or informants who tell them there are drug transactions occurring within a citizen’s home. Some informants have provided information in the past that has been corroborated by the police in a later search that revealed the drugs the “reliable informant” told them about. A “reliable informant’s” information is considered more credible and trustworthy because of the fact they have provided reliable information in the past. However, if the informant is not a “reliable informant” used in the past, the police must have more information to corroborate or support the information provided by a citizen or an informant to obtain a search warrant. The police need additional “probable cause.”

Often times the cooperating witness is someone that the dealer has known and trusted for years. Sometimes the cooperating witness may even be related to the dealer by blood. Sometime thereafter, the police use the information from the cooperating witness to establish probable cause to obtain a search warrant. They may find the “marked money” paid to the dealer by the witness, sometimes not. With good video and/or audio technology it is difficult for the narcotic dealer to refute that these transactions occurred.

Drug dealing, as any one knows, whether it is prescription medication or illicit drugs, including marijuana, is illegal in Florida and almost all places in the United States. People who choose to break the law and distribute or sell drugs, including marijuana, should know that it is extremely likely that sooner or later they will be arrested one day if they stay in the drug business long enough. Statistically, the majority of people arrested are fearful that they may go to jail or prison and hence will cooperate and do anything to keep from being locked up.
People who think they can distribute or sell drugs should heed Glen Frey's advice --- "it's the politics of contraband, it's the Smuggler's Blues." If a person sell drugs he or she is taking enormous risks of being arrested, and if they do get arrested, they likely may be locked up for a very long time.

See Pensacola Criminal Defense Attorney Jim Jenkins Website for any further information about these types of narcotics related crimes.

People being interviewed or detained should be aware there is no right to a reasonable expectaion of privacy in their conversations in either of these locations. Most squad cars these days are equipped with recording devices that record a suspect's statements while sitting in the back of the squad car. Often times, suspects are deliberately placed in squad cars together without police supervision by officers so a recording can be made of their conversation. A recent appellate court decision held that even when a third-party overhears or records a conversation between a suspect and his wife in a police station, even if they are not suspects or being interviewed, their is no "marital privilege" and the officer can testify about the conversation. Boyd v. State, __ So. 3d __, 34 F.L.W. D1698 (4th DCA8/19/09).

The federal Pensacola Criminal Case in which I represented a Co-defendant who was indicted for Obstruction of Justice and Conflict of Interest involved one of the defense contracting firms that had hired one of the targeted lobbying firms, PMA, who raised thousands of dollars for congressional campaign contributions for these congressman. The Washington, D.C. offices of PMA were raided in November 2008 by federal agents. The small defense contracting firm in Okaloosa County, in which I represented the minority shareholder and vice president and chief technical officer, paid PMA group $15,000 per month to lobby for them in an attempt to recieve congressional ADD money, otherwise known as earmarks, for the development of covert military technology, some of which is still considered classified. Albeit the headquarters of the defense contractor was located in Okaloosa County, the principal of the company had opened other corporations in Congressman Murtha's home district in Pennslyavania in order to obtain earmarks from Congressman Murtha. Albeit the "earmark" process may seem inherently corrupt it has been an approved method for Congressman to recieve monies for their home districts for decades. The longer a Congressman is in office, the greater amount of money in earmarks he is allowed to allocute to his or her home district, hence, receving political support from his home district necessary for reelection.

Because of Local Rules of the Northern District of Florida's Federal Court I cannot comment directly on the pending case at the present time due to the case not being entirely resolved at the local level. One defendant was convicted August 1, 2009 after a week long jury trial; the other two primary co-defendants have cooperated with the Justice Department and testified at trial involving the third individual. However, veteran Associated Press journalist Pete Yost, who has written on such widely publicized topics as the Jimmy Hoffa dissappearance and investigation, the White Water investigation and the mystery surrounding the death of White House Counsel Vince Foster during the Clinton Administration, the fall of Freddie May and Freddie Mac, to name a few, is writing a fascinating piece that "connects the dots" from the Penscola federal prosecution to the investigation of long term Congressmen. When the piece is released I will reference it in this column and you too can see how Congressional funding works "behind closed doors" when it comes to earmarks for Congressman to direct funding to their home districts.

See Pensacola Criminal Defense Attorney Jim Jenkins Website for any further information about the types of cases handled by his firm and further qualificiations.

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.

Until January 1, 2010 this blog entry contained one of many client testimonials our office has received because of our work ethics including the thoroughness of our investigatory work, communications with clients and results obtained because of our compassionate work ethic.

However, last November, the Supreme Court of Florida issued an opinion that required websites that are controlled or sponsored by a lawyer or law firm to comply with Florida Rule of Professional Conduct 4-7.2. Rule 4-7.2 regulates the type of information that lawyers may provide on their websites or blogs. Although there was a six month moratorium imposed in which websites were allowed to bring their websites into conformity with these new rules, we felt it prudent to make these changes immediately to bring our site in full compliance with ethical rules.

Past Successes. Lawyers may not include "any reference to past successes or results obtained" in their advertisements and unsolicited written communications. See Rule 4-7.2(c)(1)(F). If a website or blog includes examples of past successes, results, verdicts or settlements, they had to be removed from the website or blog.

Testimonials. Lawyers may not provide testimonials in their advertisements and unsolicited written communications. See Rule 4-7.2(c)(1)(J). If your website or blog includes client testimonials, you will have to remove them from your website or blog.

Contingency Fee Disclosure. If your website or blog indicates that "no fee will be charged in the absence of a recovery," you must also disclose "whether the client will be liable for any expenses in addition to the fee." See Rule 4-7.2(c)(7)

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

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.

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

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.

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.