Orlando Criminal Defense Attorney Blog

What Do Fingerprints Prove?

Wed, 16 May 2012 16:18:13 -0500

By now, you may be aware of my healthy skepticism when it comes to "scientific" evidence. Even top physicists these days claim that matter may not actually exist until we consciously observe it (cool stuff, but a Schrödinger's Cat discussion is a topic for another day). So, when a lab analyst tells a jury that a defendant's fingerprints "match" the prints found at a crime scene, we know that the analyst isn't really saying that these fingerprints are from the same person--but rather--that the two sets of prints have a few unique characteristics that match. Retina scans, by comparison, can be far more accurate because our retinas have over 200 unique identifying characteristics (not so many unique characteristics to match up with fingerprints).

When defending a case involving fingerprints, what happens when the criminal defense attorney decides not to challenge the accuracy of the fingerprint analysis? Now what? Here's a real life example of just such an instance.

In Cordero-Artigas v. State, the defendant was convicted of the manufacture of a controlled substance and possession of drug paraphernalia. 75 So.3d 838 (Fla. 2nd DCA 2011). Basically, he was convicted of owning a "grow house" for marijuana. It was Cordero's fingerprints that got him in convicted. The Sarasota Sheriff's Office had been watching a home for two months, suspecting it was a marijuana grow house. During these two months, only four people went onto the home's property, Cordero was one of them (though he was never actually seen entering the home, just the garage). Eventually, the police obtained a warrant to search the home, and as expected, marijuana plants were growing inside. Four people were charged.

Fingerprint evidence not always accurate

Mon, 14 May 2012 17:48:22 -0500

"All knowledge degenerates into probability". David Hume

Ok, I'm not the biggest "Hume" fan, but I love the above quote. After defending over 60 jury trials in Orlando, I've seen more than my fair share of prosecutors presenting scientific evidence as "fact", when it's really just probabilities. In a DUI case, for example, the state presents the "fact" that my client's BAL was above a .08, but such a number has numerous "probabilities" built in. In other cases, a lab analyst presents to the jury the "fact" that the substance found in the defendant's pocket was cocaine, or that the DNA found at the scene matches my client's DNA. And so on and so on.

The "science" of fingerprints is a great example of how prosecutors present evidence as "fact", when it's only probability evidence. Such fingerprint evidence is common in burglary charges, rape charges, and possession of a firearm by a convicted felon charges, and is introduced to show a defendant's physical presence at a crime scene, or proof of a prior felony conviction. It seems that everyone believes that no two fingerprints are alike, but is this really so? A few years ago, a man from Seattle was accused of a terrorist act in Madrid (Spain) because his fingerprints matched those found on the explosive device--yet later it was determined that the fingerprint "match" was not him--even though the fingerprints matched his prints! How can two different people have the same fingerprint?

The fact is, we don't really know if two people can have the same fingerprint, because a large scale study has never been done regarding this issue. Fingerprint matching is based upon probability theory. Scientists examine how something behaves (the sun rises every morning in the east), and predict that it will (probably) rise that same way again tomorrow. If an event is repeated enough, surely it will simply continue to repeat, right? That's the basis of much of our faith in science. We estimate the probability of a DNA match, or a fingerprint match--though juries can mistakenly take this evidence as "fact". By the time a criminal defense attorney finishes his/her cross-examination of the State's latent examiner, hopefully the jury will understand just how flimsy these probability sciences can be.

Why Tanorexia Will Be Illegal Soon

Fri, 11 May 2012 17:23:18 -0500

Here's some of the biggest problem facing our government today: Finances. Revenues. Taxes. Jobs. Eroding Constitutional Rights....

Will our real problems ever get resolved? No. Why? Because of "tanning mom", and "tanorexia". Because, somehow, gay marriage is more important than coverage of the Fukushima power plant that's still fuming--potentially ready to blow sky high (yes, we're downwind from Japan, and this thing will pack a punch 80 times that of Chernobyl...). Europe is on the brink of a financial meltdown (when this crisis hits Spain and Italy, look out), and this will hit the US hard--but where's the news reports? And hey, I'm all for gay marriage and nuclear power--but isn't Japan's nuclear meltdown and Europe's financial meltdown more important?

So, it's probably about time to tell you why tanning salon regulations are just around the corner. Because, We The People elect politicians that watch too much major network news channels. After a few weeks of "Tanning Mom" stories, someone in Florida's legislature will propose extensive regulation of the tanning salon industry. After all, can't our government solve all our problems?

Well, in an effort to save our Florida legislature some time, here's my ideas on the name of the bills to be introduced, how about the "Child Tanning Endangerment Act", "The Child Skin Cancer Prevention Act of 2012", or the "Tanning Salon Prohibition Act"? It's coming folks, like clockwork.

Debtor's Prisons, Right Here in Florida

Wed, 09 May 2012 18:18:37 -0500

This is America, right? We have a Constitution, right?

Well, there's lots of 'words' in our Constitution which, apparently, some judges haven't taken the time to read. Bottom line, our Constitution (Federal and State, for those keeping score) bans imprisonment for debt. Even so, some Orlando probationers find themselves unable to afford the massive amounts of fees, fines, court costs, restitution, classes, surcharges, counseling, and so forth and so on. We all know what happens when a probationer cannot afford to do any of the above listed items--a violation warrant is filed by the probation officer.

On the technical side of things, we have Florida Statute section 948.06(5), which sets up the debtors prison scenario by declaring that, "In any hearing in which the failure of a probationer or offender in community control to pay restitution or the cost of supervision as provided in s. 948.09, as directed, is established by the state, if the probationer or offender asserts his or her inability to pay restitution or the cost of supervision, it is incumbent upon the probationer or offender to prove by clear and convincing evidence that he or she does not have the present resources available to pay restitution or the cost of supervision despite sufficient bona fide efforts legally to acquire the resources to do so."

See the problem here? The probationer carries the burden of proving his poverty, rather than the State. In a Violation of Probation case, it is the state that is bringing a lawsuit against the probationer for failing to pay something--so it should be the state's burden to prove such. But, that's not so, due to the 'burden shifting' found in Florida law, under section 948.06(5) (highlighted above).

A Judge's Courtroom Rules Get Struck Down

Mon, 30 Apr 2012 16:19:21 -0500

They say a good lawyer knows the lawyer, a great lawyer knows the judge. If you simply know the law here in Orange, Seminole, or Osceola County, you're only halfway there. An attorney must also know the judge. There are several different rules that control the behavior of criminal defense attorneys and defendants in criminal courtrooms. But sometimes, the judge's rules cross the line. Let's examine one such instance.

Back in 2010, Jeffrey Tishner was placed on five years probation for burglary and grand theft. Tishner violated his probation (VOP) with a new DUI arrest, and the VOP had a $10,000. Tishner v. Cameron, Sheriff, 75 So.3d 787 (Fla. 2nd DCA 2011). Tishner bonded out on the VOP, hired an attorney, and the criminal defense attorney waived his appearance at the VOP arraignment, pursuant to Florida Rule of Criminal Procedure 3.160(a). This criminal rule states that "counsel may file a written plea of not guilty at or before arraignment and thereupon arraignment shall be deemed waived."

Judges Should Be Involved In Plea Negotiations

Wed, 25 Apr 2012 17:37:47 -0500

The criminal justice system here in Orlando, and throughout Florida, runs on a well established balance of power between the prosecutors, the judge, and the criminal defense attorney. The actions of these players are controlled by the rules laid out in Florida's Constitution, and the United States Constitution.

But this balance of power can be swayed by the behavior of the judge. For example, if a judge gets too involved in plea negotiations (like telling a defendant "you should take this plea offer", or "this is the best offer you're ever going to get on this case", etc), such bench commentary may only serve to intimidate a citizen into taking a plea for something they didn't do.

On the other side of this coin, many Florida jurisdictions have judges whose courtrooms and dockets are out of control because the judge refuses to reign in their overzealous prosecutors For example, if a judge refuses to participate in plea negotiations, their dockets may be manipulated by prosecutors who make unreasonable plea offers--knowing that their unreasonableness will not be checked by the judge.

Citizen's accused of a crime should not be forced into a jury trial merely because the judge refuses to participate in a legitimate judicial function--sentencing. Judges may sentence on a plea, or they may sentence after a guilty verdict, but citizens who wish to enter a plea like to know what they're getting before doing so, and some judges simply refuse to say. When a citizen's entire future is left up to a stranger in a black robe, they have every right to question why this paid public servant refuses to participate in the process.

Gain Time on a Minimum Mandatory Sentence?

Mon, 16 Apr 2012 17:04:35 -0500

If I had a nickel for every time I was asked "how much gain time am I getting", I could buy a park-hopper pass to Disney. Sure, we try to keep our Orlando clients out of prison, but every now and then, the worst case prison scenario creeps up. For those of you not up on your criminal defense lingo, "gain time" is a reference to the discount an inmate receives off a sentence for good behavior, program participation, or any other reason the Department of Corrections can come up.

For example, under Florida law, if a judge sentences a defendant to 10 years prison--that prisoner may be released after serving only 8 ½ years, because Florida's Department of Corrections (and Florida Statutes, really) allow a maximum "gain time" of 1 ½ years on a ten year sentence. Basically, Florida prisons are legally permitted to discount a sentence 15 percent under most circumstances, and thus all prisoners must serve at least 85 percent of their sentence (See Florida Statute 944.275 for more details). County jails may give more gain time, and that's a story for another day. Today, our focus is prison sentences, more specifically minimum mandatory sentences, and how that affects gain time.

Yes, it's true. The Florida legislature is "mandatory-minimum-prison-sentence-happy". The Orwellian double-speak translation of a minimum mandatory google translates to "the legislature does not trust our wise elected judges to give a fair sentence, so the legislatures have imposed their own predetermined minimum amount of prison time". But, on a minimum mandatory case, would the prisoner be entitled to gain time? It depends.

Failing to Feed Your Dog--Misdemeanor or Felony?

Mon, 09 Apr 2012 05:55:54 -0500

We criminal defense attorneys see lots of unpopular cases, one of which is cruelty to animals. I've seen Orlando animal cruelty charges receive stiffer sentences than child abuse cases. Hum....But, it's a fact that we Americans love our pets (especially puppies, who doesn't love puppies?). It goes without saying that some of our pets live better--eat better--than people living in third world countries.

Today's focus is really not pets, it's statutory analysis. A decent example of statutory analysis involves this question: when a dog is not fed properly, is this a misdemeanor offense or a felony offense? The decision hinges on statutory interpretation, and begins with Florida Statute 828.12(1), which makes it only a misdemeanor to unnecessarily deprive a dog of necessary nutrition. But, subsection (2) makes it a felony to "intentionally [commit] an act to any animal which results in the cruel death, or excessive or repeated infliction of unnecessary pain or suffering". So, where do undernourishment cases fall, under subsection (1) which is a misdemeanor, or the felony subsection (2)?

Lucky for us, the Second District Court of Appeals addressed this issue recently in State of Florida v. Morival, 75 So.3d 810 (Fla. 2nd DCA 2011). Animal service workers found two dogs caged inside Mr. Morival's apartment that were severely undernourished, without food or water. This led to Morival's arrest for felony animal abuse. When confronted with the abuse, Morival merely cited financial issues as the problem. The court reviewed the pictures of these two dogs, and described them as "skin and bones". That being said, Morival's attorney filed for dismissal, reasoning that failing to feed a dog is only a misdemeanor, as per subsection (1) above. The trial court agreed and dismissed all charges, but the state appealed.

Dismissal of Oxycodone Case with the Prescription Defense

Fri, 06 Apr 2012 13:22:41 -0500

Central Florida has it's fair share of oxycodone cases, in part due to our abundant pain management clinics in town dispensing oxycodone scripts seven days a week. Arrests for trafficking in oxycodone are abundant in Seminole County (even more than Orlando, it seems), because police agencies have set up undercover operations in the parking lots of Walgreens and CVS stores in an attempt to witness drug sales. Are people dumb enough to exchange drugs in the parking lot of a Walgreens? I guess so, because one Seminole County police department has made over 160 such parking lot arrests.

The underlying problem with arrests for prescription drugs is not the legality of the drug itself--we know oxycodone is legal. And, the question is not whether the prescription holder is entitled to possess the oxycodone--again, we know that it's perfectly legal for a patient to be prescribed oxycodone. But, the problem involves when it is ok to have someone else to possess the prescription.

Under Florida law, many of us with elder parents may have been guilty of possessing a controlled prescription drug when our sick parents were unable to pick up the medication themselves. I've done it. So, where do the courts draw the line in allowing someone other than the prescription holder to possess a prescription drug?

This issue was recently addressed in State of Florida v. Latona, 75 So.3d 394 (Fla. 5th DCA 2011), where Latona filed a motion to dismiss her charges based upon the "prescription defense", and her trial court granted the motion, but the state appealed. Basically, the prescription defense permits a prescription holder to allow another person to hold their medications on his/her behalf.

When Aggravated Battery is really only a "Battery"

Sat, 31 Mar 2012 15:45:22 -0500

Orlando sees it's fair share of battery arrests. It's sad, really (especially those teenagers videotaping gang beatings--what is this world coming to?). But to make matters worse, prosecutors tend to overcharge fights, erring on the side of charging Aggravated Battery Causing Great Bodily Harm, rather than charging the lower offense of misdemeanor battery. So, where do we draw the line in determining what type of injury constitutes a misdemeanor battery, and what type of injury is "great bodily harm?" Let's dig right in....

Our focus today is the recent case of Gordon v. State, 2011 WL 6016913 (Fla. 3rd DCA 2011). Gordon was convicted after trial of attempted second-degree murder and aggravated battery, he was accused of hitting his girlfriend with his hand and with a belt, causing bruises on her body. His girlfriend did not seek medical treatment, and the bruises eventually healed. Is this "great bodily harm?"

Can you get fired for smoking medical marijuana?

Fri, 23 Mar 2012 13:13:38 -0500

Yes I know, we don't have medical marijuana here in Florida (yet). When we do, lots of issues are going to crop up, including a sharp decline in criminal defense revenues (like I've said before, I can handle it, as I'm sure the government will simply find other things to charge citizens with...). If marijuana becomes legal, must an employer must accommodate a patient's use of medical marijuana on the job? And, a related question is, can an employee be fired for a positive drug test if that test simply proves the worker is positive for legally prescribed marijuana?

There isn't much case law on this issue nationwide. Oregon has medical marijuana, and Oregon has decriminalized the possession of small amounts of marijuana (it's simply a ticket to possess without a prescription, pay a fine, no crime). Recently an employee in Oregon requested that his employer accommodate his marijuana use, and he was fired. The employee sued the company under the ADA (a federal disabilities act), claiming discrimination due to his medical treatment. The courts did not agree, and approved of the employer's termination. Part of this opinion, however, seemed to hinge upon the fact that the ADA is a federal law, and under federal law, possession of marijuana is illegal.

Missing Mens Rea

Tue, 20 Mar 2012 13:00:20 -0500

[I know what you're this is another boring technical article filled with big legal words. No, it's not, read on and quit being a hater.]

To commit a crime, you must "intend" to commit a crime, right? Well, maybe.

Different crimes carry different levels of mental mindsets, and there are five basic ones, 1) purpose/intent, 2) knowledge, 3) recklessness, 4) negligence, and 5) none / strict liability. This means that sometimes you really have to think about committing a crime and have guilty knowledge, but other times, you need not have much guilty knowledge at all (kind of unfair, I know). Unfortunately, the legislative trend seems to be towards crimes that do not require guilty knowledge (number 5, strict liability). These newer crimes do not require much in the way of a mental state, which means that, if you "do it"--you're guilty--whether you intend to do so or not.

DUI manslaughter is a good example of a crime that mixes a few different mental elements. To prove DUI manslaughter, the state need not prove any intent to "kill" someone, they need only prove that you drove a car under the influence and caused a death. Intent to kill is not required.

Drug possession cases in Florida do not require guilty knowledge, and thus Florida's possession of a controlled substance offenses have elements of strict liability. For example, Florida's removal of the knowledge requirement (See Fla. Stat. 893.101) could affect mail delivery personnel. Think about it, a mailman can be found guilty of Delivery of a Controlled Substance for the drugs found in mail packages because our law does not require that the mailman actually "know" that the package contains drugs. Our law only requires 1) "delivery" of the package, and 2) the package contained drugs. Seems kind of wrong, doesn't it? It is wrong, but it's "legal" under Florida law (for now, that is, this issue is pending before the Florida Supreme Court, so we'll see how it goes).

Over-criminalization

Fri, 16 Mar 2012 12:44:08 -0500

There are problems with our criminal codes. Of course, these problems keep Crime Incorporated in business, so there seems to be little incentive to fix it. No one has bothered to control or fix overlapping laws. Congress has passed more criminal laws in the last 30 years than in the entire history of our country. Historically, crimes have been defined by the states, not the federal government. But now, we have a number of criminal offenses that are covered by both state law and federal law. Yikes.

One disturbing trend in over-criminalization involves the creation of crimes that do not require mens rea. Normally, crimes require guilty knowledge (mens rea) so that it's not enough to simply "do something", you must do something intentionally with guilty knowledge. But over the past 30 years, the mens rea requirements in criminal statutes have been watered down or eliminated completely (See Florida Statute 893.101, for example). In the corporate context, we're seeing criminal cases for CEO's, not because they've done something wrong, but because someone else in the company has done so, and they should have known about it. Again, a watered down knowledge requirement.

Medical Marijuana in Florida?

Tue, 13 Mar 2012 12:18:30 -0500

You never know, medical marijuana may one day become a reality here in Florida. Of course, that would mean quite a pay cut for criminal defense attorneys like me, but this one time, I'll bite the bullet because it's the right thing to do. Possession of marijuana arrests are pretty popular here in Orlando, so the police may have to find something else to do with their time. Somehow, I think they'll manage, crime incorporated always finds a way to increase their revenues.

If Florida passes a medical marijuana law, our state law will be in direct conflict with Federal law--as Federal law makes it clear that cannabis possession is illegal (except for research purposes). Medical marijuana highlights an interesting issue in Constitutional Law. What are the rights of the states, and what are the rights of the federal government?

We, the People, gave our federal government only "certain" powers, all other powers are retained by the states. However, it seems that our federal government has grabbed more power than originally granted by the states, and a prime example of this is medical marijuana cases.

Drugs in a Backpack, again!

Fri, 09 Mar 2012 17:03:56 -0500

When cops in Orlando see teenagers hanging out with backpacks, they see a drug bust waiting to happen. Police are always suspicious of a kid with dreadlocks and a backpack, I mean really, aren't dreadlocks a reasonable suspicion to search? Maybe in China or Iran, of course. Well, you know where I'm going with this, so let's dive right in.

The case for today is M.A.F. v. State of Florida, 2012 WL 516186 (Fla. 2nd DCA 2012). M.A.F. is a juvenile defendant, so his name is not used, only his initials (you knew that, right? Just checking). The kid was convicted of introduction of contraband into a county detention facility and possession of less than 20 grams of marijuana. He originally drew the attention of the police because he was smoking a cigar. The police saw this, ran his name, and discovered a warrant so they arrested him. The cops seized his backpack, and later found weed inside.