COPS Episode Ends with Victory for Client

June 9, 2010

My daughter recently recorded an episode of “COPS” that was filmed in Jacksonville. The whole family sat down together to watch just for fun.  To my surprise, I soon realized that one of my cases was featured on this episode!

It was a re-run of an old show that originally aired at least eight years ago.  The case was one of those that I’ll never forget.  And since “COPS” doesn’t tell the whole story, I can reveal how it ended favorably for my client.

The officers went to an apartment to serve a search warrant. Prior to the execution of the warrant, there was some discussion at the police station indicating confusion over the address at which the warrant was to be served.  On the show, you see the officers use a battering ram to burst into the apartment (without the constitutionally-required knock and announce, but that’s a story for another day) and arrest the people inside.

Here’s what happened off-camera.  The sworn affidavit for the search warrant that the officers presented to the judge alleged that a confidential informant had bought drugs at a specific address, but when I deposed the officer who prepared the affidavit, he testified that he had mistakenly written the wrong address on the affidavit.

I filed a motion asking the court to force the State to reveal the identity of the confidential informant so that I could question him regarding where he bought the drugs.  If the address alleged on the affidavit for the warrant was in fact not the one where he bought the drugs, then the warrant would be invalid.  The judge agreed that these unusual circumstances justified the extraordinary remedy of compelling the State to reveal the identity of the CI; otherwise, my client’s Fifth Amendment right to cross examine the witnesses against him would be denied.

The State chose to drop the charges rather than reveal the identity of its confidential informant.

Mistrial Did Not Mean Disrespect

June 7, 2010

Apparently, Jacksonville Fraternal Order of Police President Nelson Cuba believes that everyone should always believe the word of a police officer, no matter what.  Perhaps he needs to pay more attention to the news if he wants to understand why not everyone feels the same way.

Jacksonville resident Jacquan Shootes’ second trial recently ended in a mistrial after a hung jury.  He is accused of shooting at Jacksonville police.  His defense was that the officers didn’t identify themselves, so he didn’t realize they were undercover, and therefore he shot in self-defense.

The jury deadlocked, which means that at least one person had some doubt about whether the State had proved the charges beyond a reasonable doubt.  According to the Times-Union, Cuba said “it’s a pretty sad day when people would take the word of a criminal over the word of four officers.”  http://bit.ly/d3GsQo

Should the jurors automatically have believed the police over the defendant, just because they’re cops? I think not.  Jurors are supposed to weigh the evidence, evaluate the testimony of all the witnesses, and decide who is telling the truth.  That’s just what the jury did in this case.  We should respect the jury’s decision, just as Cuba would have if the verdict had been guilty.

The same day that the Times-Union reported on the trial, the paper also featured these headlines: “Officer’s hero-to-handcuffs story continues” and “Lawtey officer held in scheme to solicit bribes for tickets.”  The following day, this headline appeared: “Officer fired for fatal traffic crash.”

If you follow the news in Jacksonville, you’re familiar with these stories, and you know how many times officers have been accused of wrongdoing in the last few years. You can find all kinds of similar stories all over the country.

The point is that cops are people too, just like the rest of us. We should all be held to the same standards.  It’s not “disrespectful” to question the word of a police officer who testifies in court.

In the interest of full disclosure, I will note that the defense attorney who tried the case, Waffa Hanania, is a close friend of mine.  However, I have not talked to her about the case, either before or after the trial.

Taking the Breath Test: You’re On Your Own!

April 16, 2010

If you’re arrested for DUI, you’ll be asked to take a breath test.  You may not realize it, but when you get a driver license, you agree in advance to take the test (check the small print on your license). If you refuse, the Department of Motor Vehicles  (http://bit.ly/o4dFs )will suspend your license for a year. If you’ve refused before, the suspension will be 18 months, and you’ll be charged with a crime for the refusal (a first-degree misdemeanor).

The officer who administers the test is supposed to tell you what will happen if you refuse. But you don’t have the right to talk to a lawyer before you decide whether to take the test. Now, a Florida appellate court has specifically ruled that the officer does NOT have to tell you that you don’t have the right to talk to a lawyer before deciding. The officer only has to explain the direct consequences of a refusal.

The process might seem backward, but it’s the law in Florida. First you get arrested, then you decide whether to take the breath test, then you talk to a lawyer.

Don’t skip the third step. Exercise your right to talk to a lawyer before deciding how to plead to a DUI charge!

Did the Police Really “Mishandle” a Rape Case?

April 8, 2010

The Florida Times-Union reported recently that the Jacksonville Beach Police Department “mishandled” a rape case by releasing a photo of a suspect fingered by an informant to the media. http://bit.ly/9m3tr4

I don’t think the case was mishandled at all—at least in comparison to any other case. It certainly wasn’t unusual for the police to use an informant to try to solve a case. And it wasn’t unusual when the informant identified a suspect from a photo. Publicizing such a photo is actually pretty routine.

This case made headlines because as it turned out, the man in the photo owns a business and two homes. He went to the police station voluntarily, made a statement, and gave a DNA sample. Most named suspects don’t do that.

Apparently the informant misidentified the suspect.  It’s not clear whether the misidentification was intentional or inadvertent, or whether the informant was reliable in the first place.

But just because the suspect in the photo is a businessman with two houses, does that mean per se that he couldn’t be the perpetrator? The point here is that most suspects aren’t cleared simply because they protest their innocence. Why did the police publicly apologize for what is essentially routine police work?

What the police should be doing is questioning their use of informants and re-thinking whether the informants they use really are reliable.  Too many convictions are obtained by relying on the questionable information provided by informants, some of whom are actually paid by the police.

And for that matter, the police should be looking more carefully at the reliability of all eyewitness identifications.  How many people convicted solely on the testimony of an eyewitness identification will have to be exonerated before they admit that it’s just not that reliable, especially without corroborating evidence?

DMV Misinforms About Right to Hearing

March 15, 2010

A prospective client called today about a DUI case. The client had gone to the Wilson Boulevard DMV office to apply for an administrative hearing on his license suspension, only to be told that he was not eligible for a hearing because he had refused the breath test. WRONG! I can’t imagine why anyone at DMV would misinform someone about his rights under the law. I hope that this was just a mistake by someone new who misunderstood the rules and that a supervisor intervenes before anyone else is turned away.

If, heaven forbid, this were to happen to you, cite the statute,  http://tinyurl.com/yefudgq, and hold your ground! Better yet, call an experienced DUI lawyer before your 10 days runs out! 

Skeeball: My First Love

March 11, 2010

NPR recently aired a story about a Skeeball tournament in Brooklyn, NY.  http://bit.ly/c25y6n

I listen to NPR all the time, so I can’t believe that of all stories, I missed this one! You see, I have Skeeball in my blood.  I was so excited to read about this tournament, and so disappointed that I didn’t get to participate!

I grew up in a Skeeball arcade—literally. My grandfather was in the “amusement” business in Rockaway Beach, Missouri (the now-famous Branson area), and he and my grandmother moved to Panama City Beach in the early 1950s, opening a Skeeball arcade along with baseball batting cages.  My parents moved to the World’s Most Beautiful Beaches in the ‘60s and took over the operation when my grandparents died, and I lived the first six years of my life in a small apartment in the back of this Skeeball arcade on Long Beach.

My brother and I went to sleep each night with Skeeballs rolling against the wall on the other side of our beds, the ringing bells, the click-clack of the Rolodex-style metal scoreboard, and the grind of the lever that was pulled back to release the balls after inserting the nickel (yes, nickel!) into the coin slot serving as our good-night lullaby. These are happy memories.

Eventually we moved to a “real” house, but I still spent a lot of time at Skeeball until I moved away to college (and even after that). And I could still roll those balls up the alley for hours on end.  It’s addicting! Video game, X-Box, Game Boy, Wii?  Not for me. I like my games the old-fashioned way.  Skeeball will never go out of style!

Look for me at the tournament in Brooklyn next year. I can roll a mean 450!

Hospitals Give to Charity Too

March 11, 2010

The Florida Times-Union recently ran a story about how much Jacksonville-area hospitals write off in “charity care” every year.    http://bit.ly/av7Qbf

Not surprisingly, the amount increased dramatically last year over 2008.  St. Vincent’s had the biggest increase at almost 30%.  Orange Park saw a 19% increase, while Memorial soaked up more than a 15% increase ($133 million).

“Charity care” simply means the cost of treating uninsured patients who come to the emergency room and can’t pay their bills.  The hospitals are required by law to treat these patients, but I suspect that a good portion of them don’t really have emergencies in the traditional sense of the term; they have emergencies in the sense that they are desperate for medical care but can’t afford to see a doctor.

Some of these people have lost their job and the health insurance that went along with it. With no income, they can’t afford to pay the premium to extend their coverage through COBRA, even with the government subsidy.  Some of them have a job that doesn’t provide health insurance, and yet they don’t qualify for Medicaid.  Some of them are unable to work because of their health problems, and they’re in the midst of the excruciatingly long application process for Social Security disability benefits or SSI.

We see people like this in our office every day.  In Duval County, we are lucky to have the indigent care program at Shands, which covers many low-income people who don’t have insurance.  This is a taxpayer-funded program that fills in the gaps in the health insurance system for people who live in Jacksonville.  For people who live in the surrounding counties, the resources are far more limited, making it impossible for many to get any kind of treatment.

Our patchwork health care system leaves a lot of people out, and the numbers are growing every day with the downturn in the economy. I certainly don’t have all the answers, but I see the problems in my office every day.  The status quo just doesn’t seem to be working for everyone.

Think You’re Disabled from Diabetes? Think Again.

February 11, 2010

The Social Security Administration has proposed a change in the regulations governing disability claims that would eliminate the “listing” for diabetes.  Essentially, the Listing of Impairments is a catalog of medical conditions that Social Security uses as a guide to determine when a claimant should be considered disabled irrespective of age, education, or work history.  If your condition is severe enough to meet or equal a listing, you are considered to be unable to perform any work, and you qualify for disability benefits.

Each listing requires specific criteria, not just a diagnosis of a certain disease or condition.  For example, if you broke your leg and the fracture never healed properly, you would meet a listing only if you couldn’t walk effectively, which is generally defined as needing a walker, two crutches or two canes.

So as you can see, it’s not easy to meet a listing.  Social Security wants to eliminate the listing for diabetes because “medical science has made significant advances in detecting endocrine disorders at earlier stages, and newer treatments have resulted in better management of these conditions.”  Although that is true, it doesn’t change the fact that many people still get very sick from diabetes!

Social Security’s reasoning is that experts say “adequate glucose regulation is achievable with improved treatment options, such as a wider range of insulin products.”  Again, this is true, but only for people who can afford treatment and medications.

I’ve seen many clients with uncontrolled diabetes because they could not afford regular medical treatment and/or the necessary medications.  Sometimes, even clients with insurance can’t afford these things because the co-payments required are too much.

Once again, the rules are being designed to cover those lucky enough to have access to regular, good quality medical care.  The rest are left to their own devices.  Ironically, these are the people who need disability benefits the most.

Cops in Jail

February 5, 2010

Kudos to the Jacksonville police officer who had the courage to turn in two fellow officers recently for committing a crime on the job.  Apparently the officers wanted to look for drugs in a house located in a high-crime area, but they didn’t have a search warrant.  So instead of developing the probable cause they would have needed to get a warrant, they decided to take matters into their own hands.  They removed a room air conditioner and went into the house, then made up a story about a lady driving by who reported a burglary so it would look like they were justified in going into the house.

They didn’t find any drugs in the house.  Now they’re in jail.

Sadly, too many officers take shortcuts.  Over the course of the last 18+ years as a criminal defense attorney, I’ve seen it too many times.  I’ve had clients tell me about it again and again.

I guess these officers feel like the ends justify the means, but they never do.  Their actions taint all of the hard-working, dedicated officers who play by the rules while protecting the public.

The criminal justice system is designed to ferret out the truth, and most of the time it works.  Usually, when it fails, it’s because a cop or a prosecutor decides that winning is more important than justice.  It never is.

I’m sure the officers charged in this case will feel entitled to a fair trial, which they are.  I’m sure they’ll want the evidence used against them to be obtained legally, which it should be.  That’s the thing about the Constitution—it covers all of us, in all cases.

You can read more about this story at http://bit.ly/dChmmy.

Just Speeding or Reckless Driving?

February 5, 2010

Earlier this week, I was stuck in a traffic back-up on I-10 for more than an hour because of an accident that was blocking the left lane.  From my perspective, it looked like a one-car crash that was probably caused by speeding in rainy conditions.  I try to use situations like that as “teachable moments” for my kids—I always tell them that you won’t get where you’re going on time if you have an accident!

The situation brought to mind a recent Florida case on vehicular homicide, which means killing someone by driving a car in a reckless manner likely to cause death or great bodily harm.  Vehicular homicide by definition requires proof of reckless driving, which is also a criminal charge in Florida (not “just a ticket”).  Reckless driving is driving with a willful or wanton disregard for the safety of persons or property, and it’s punishable by up to 90 days for a first offense or 6 months for a second offense.

Generally speaking, speeding alone is not enough to constitute reckless driving, but Florida courts have held that it can be enough in certain situations, depending on how far above the speed limit you were going.

In the vehicular homicide case that came out recently, a South Florida man driving a Corvette crashed into another car at an intersection, killing the other driver.  The investigating officer estimated that the Corvette was going much faster than the 40 mph speed limit, and there were no pre-impact tire marks to indicate that the car had slowed down before the crash.

The officer got a search warrant for the black box in the Corvette.  The box showed that the Corvette was going 103 mph five seconds before the crash and 98 mph one second before. The defense attorney filed a motion to suppress, arguing that the officer did not have enough probable cause for the search warrant. The appeals court held that there was enough probable cause because speeding alone could support the vehicular manslaughter charge.

This case is a good example of how traffic offenses can turn into serious criminal charges in an instant.