So why are you so defensive, Officer?

An attorney related this series of deposition questions he asked an officer recently:

Ofc: When the window opened, I smelled the odor of Marijuana.

Atty: What training have you had regarding the odor of Marijuana?

Ofc: When I was in the Police Academy an instructor lighted a marijuana cigarette and allowed all of us to smell it.

Atty: Have you ever smelled marijuana before that?

Ofc: How is that relevant to this case? (officer starts looking at the state attorney and shifting around uneasily in his chair)

Atty: I want to know was this time in training the first time you have ever smelled marijuana?

Ofc: I don't see how this is relevant to this case. Whether I had smelled marijuana before has nothing to do with this case. What does it have to do with this case? (by this point the officer is about jump out of his chair, clearly agitated by the questions)

Atty: So you don't want to answer the question of whether you have smelled marijana before?

Ofc: No.

Atty: Okay, for the record I will certify the question.

I think a peek in the personnel file of this officer, particularly the job application portion, might be worthwhile.

Can I look at Officers Minsky's report before I testify?

An interesting thing occured in Miami today. Seven students who had been charged with various offenses had the charges dropped after the State Attorneys office realized that all of the reports looked way to familiar. I have to give props, which I am loathe to do, to the State Attorneys for actually looking at the reports and deciding not to pursue charges on cases that seemed to be at the worst fraudulent and at best not accurate.

This does, however, bring up another issue that is always bothering me. Everytime I have a case that more that one officer is involved, the officers agree which one writes the report and every one of them review that one report right before they take the stand. While I have gotten most of them to admit to that on the stand, it seems inherently wrong that an officer can witness something and months later use a document he did not assist in preparing to remind him of minor details that he in all probability didn't observe. I know, some of you are saying, "well at least you have depositions so what is the problem. You can use the mistakes he made there and impeach him." Not so easy, since a lot of them decide not to come to deposition and they still use the initial officers reports. I would like for a hard and fast rule, no reports, no testimony.

How about a Happy Meal?

The Florida Legislature has been battling among themselves regarding people who have been wrongfully imprisoned and subsequently exonerated, i.e. by DNA evidence. The Legislature has been trying to develop a plan to make automatic awards based on a number of factors. The Republicans, however, are requiring that the individual have no prior felony convictions, in other words "clean hands" before they will agree to any automatic payment plan.
Currently if someone wants payback for all of the years they have lost due to a wrongful conviction, they have to petition the Legislature. A lot of times they get nothing. Alan Crotzer, who lost twenty four years, more than half his life, due to a wrongful conviction recently got such an award of $1.25 million for his time. He would not be eligible for this award under the Republican plan.

It is amazing that the legislature is being so heartless. You can imagine how much Mr. Crotzer has lost during that time. If he had any children, they are in their mid 20's. He would have missed so much of their lives. When he went to jail, their were no cellphones, Starbucks, mp3 players, things we take for granted these days. What does a prior felony conviction have to do with the fact that for 24 long years, or 8,760 days he was not free.

The payment he is receiving is comes out to approximately $52, 000 per year. He says he is not bitter. He is a better man than I. I cannot see the money being a fair trade off for all the experience of life that he lost. Congratulations Mr. Crotzer and I wish you all the best.

ROGUE COPS

Every time I go into court I worry that the jury will always believe the police over my usually multi-convicted client. However it seems that police officers are doing their best to help me out.

Take for example this case. Four deputies from the Orange County Sheriff's Office Narcotic Unit were disciplined, two being dismissed, and two being suspended without pay. All of this came about when one of the deputies was arrested for perjury. An interesting upshot of this is that one of the deputys bought drugs. And there may be yet more hooked once all of the investigations have been completed.

Another example is this case where an officer from the Orlando Police department pushed a woman down the stairs. He arrested the woman saying he spit on her. Unfortunately for this officer, there was an independent video of the incident and did not show the officer wiping his face when he was supposedly spit on. This officer falsified a police report but due to a technicality he could not be punished for this transgression.

Imagine the Expense

The House Committee on Security and Public Safety of the Florida Legislature. voted down a measure 10-1 that would have required that the police record all interrogations in felony cases. One reason was the costs. This is downright funny. Looking at this mornings paper, I noticed that the 750 gb my book external hard drive cost $159. How many hows of interrogation would that hold? The legislature must be assuming that every person arrested for a felony is questioned. I would guess roughly 10 percent are, at best. They also talks about the transitions from a witness to a suspect. Everyone knows that the police routinely talk to the client prior to putting them on tape so that their methods (often the methods used in the Reid techniques) are not discovered. Then after they get them to say what they want them to say, then they put them on tape.

Ironically, if you want to question a police officer about a shooting, you are required to have every word he utters recorded, pursuant to the "Police Bill of Rights" established by Florida Statutes. I guess our constitutional bill of rights is far less important than the police bill of rights.

Don't Tase Me Bro

Orlando is fast becoming the Taser capital of the world. Recently, an eleven year old was tased by a deputy at the school she attended, allegedly because she punched the deputy. Sorry, but I think if the deputy is not sufficiently wary or smart enough to be able to physically control an eleven year old, the department should review it's training guidelines rather than making excuses for the deputy.

The mentality in this area, however is tase first ask questions later. One officer, Jonathan Cute of the Orlando Police Department was sued in federal court for one of his tasing. A subesquent posting on a blog site, if believed, showed that he was extremely tase happy. He is currently on administrative detention in a police shooting of a driver where the driver subsequently died. A taser was used there also.

Uhm, He smoked Marijuana when he was in jail, Judge

Ever have the experience of trying to explain to a judge during a violation of probation hearing that your client tested positive for marijuana a week after being released from jail because he had been smoking the stuff in the jail? And then watch the Judge roll their eyes? Well along comes a story like this and we find redemption!!!

Seems in tiny little Bartow Florida a couple of detention deputies were arrested for providing the inmates with some of the wacky tobaccy. Deputies Michael T. Redmond, and Jarrett R. Brice were the deputies arrested as they had worked a deal with inmate Freddie Street and his girlfriend Latifah Balil to get the marijuana into the jail. So the Polk County Deputies arrested them.

MY EXPERT IS DAUBERT

The Florida Legislature is now asserting themselves into the evidence code once again with HB 645 (SB 1448). They are changing the expert standards from Frye to Daubert. There are supposed procedural safeguards, including interlocutory appeals, but I am concerened they are going to let every crackpot, under the guise that it will help the jury, state opinions which have no true scientific basis. The revised meeting packet for March 19th lays out the arguments for the bill.

Bonus for us

An interesting bill is going through the Legislature. House Bill 497 requires coordinated classification & pay plans for public defenders in each judicial circuit to be developed in accordance with general law, notwithstanding that lump-sum salary bonuses, or other similar provisions of law or rule relating to government officials, may be provided only if specifically appropriated or provided for by law. The best part of the bill is that the bill allows the public defenders to use unallocated dollars for lump sum bonuses without such bonuses
being either specifically appropriated by the Legislature or authorized by the Legislative Budget Commission

The bill has already gotten a favorable vote in committee. One can only wonder with the budget shortfall that is predicted whether this bill will survive once it reaches the floor, especially in light of Senator Gary Siplin's crass remarks to "close the public defenders down because they don't do nothing for black folks".

Second Tier? Not us.

The Florida Supreme Court decided today that the Offices of the Criminal Conflict and Civil Regional Counsel are not second tier "appointed" public defender in violation of the Florida Constitution. As such the governor is pretty much clear to appoint whomever he or she wants to the position, qualified or not. Not that I am casting aspersion on these folks as I know several and they seem at least qualified if not insane for taking the position. But always in the back of my mind I wonder if the best candidate is the one who gets the position or the most politically connected.

Speaking of Public Defenders, of the 20 races for election, three have incumbents who have challengers and two are wide open elections. In one of these wide open races, one candidate, Larry Eger, has raised over $129,000. What is most ironic about Larry is that he worked with the public defender's office for 23 years. Who knew one of us would have connections like that to raise that kind of scratch. Good luck Larry.

Shoe on the Other Foot

I am constantly amazed that those who lead the crusades are the one who inevitably have to go before the public with their Mea Culpas and hope that they are given a better chance at a reasonable sentence than any of my clients ever get. For once, I would like one of these jokers to go before the public and say, "you know, I know it looks like a do as I say and not as I do. And you're right." I would also like to see the poor spouse who has been drug into this media circus against their will to stand up and say, "He is going to pay for this in ways you can't even imagine."

Now having said that, I would be curious to see if they will prosecute him at all. I am sure there will be a tremendous amount of political pressure to pursue this, especially with him being a Democrat and this administration being oh so careful in who they go after. But at the end of the day, is there really anything else that could be done to him that hasn't already been done, (loss of governorship, loss of potential national office, loss of reputation, becoming a national punchline) I know it does not match actual incarceration, but some would put those things ahead of jail.

Think before speaking

Florida Senator Gary Siplin is alleged to have made the following remarks regarding public defenders,

Siplin wouldn't say how he would vote, but didn't seem moved by stories of how education and healthcare for the poor would be cut. And when it came to the discussion of public-defender furloughs (something that might have been cured by a $2.5 million boost via Sen. Victor Crist's amendment today), Siplin wasn't pleased.
"They should be closed down," he said. "They don't help black folks."
Later, Siplin said his comments reflected the frustration of his constituents who think the public defenders don't do enough.
(source Naked Politics Miami Hearald.com)

Did you forget that members of the public defender office showed up to assist in the civil rights restoration drives in Eatonville, the oldest African American community in the United States? Have you ever worked in a public defender office? Have you even spent one hour observing the work at the office? We know that you like to rattle the sabers as your consitutents like that, but seriously, think before you speak.

Going back to the Dark Ages

Well the Florida Legislature has decided again to try and do away with discovery depositions this term in cases involving third degree felonies. I would not be surprised to see someone attempt to amend this citing the costs involved. Of course the bill was introduced in the House by Representative Thompson, a prosecutor, since 1995. This bill deserves special monitoring.

SB 2744 Relating to Discovery Depositions (Identical HB 1327)
Discovery Depositions; Provides that a discovery deposition may not be taken in a case in which the defendant is charged only with a felony of the third degree, a misdemeanor, or a criminal traffic offense when all other discovery provided by law has been completed. Requires the trial court to consider certain conditions before allowing the discovery deposition. Repeals Rule 3.220(h)(1)(D), Florida Rules of Criminal Procedure, etc. EFFECTIVE DATE: 10/01/2008 except as otherwise provided.

FLORIDA CDL

My thoughts this past week was about the many who took the Bar Exams this week. I wonder why many of them decided to join the profession. Did they want to join for the almight dollar? Did they join because they see this as a higher calling? In six months will they view their decision in the same way when they are slammed with high caseloads or billable hours? And when the the student loan payments start up, will they still believe they made the right choice? Makes me wonder.