Archive for January, 2010

Blogging and Freedom of the Press

January 22, 2010

It seems that Judge Haddock doesn’t want the media to know what’s going on in his courtroom, especially when he’s not there. I don’t understand why, and I’m glad the Times-Union challenged him this week. But I wish the paper would challenge him again.

Judge Haddock is presiding over the trial of the three young men accused of killing 8-year-old DreShawna Davis in 2006. He banned a Times-Union reporter from blogging in the courtroom, even though she was sitting in the second-to-last row of a very large courtroom. He said that what she was doing was distracting, although I can’t imagine how.

Judge Haddock based his ruling on a 1979 Florida Supreme Court case that regulated TV cameras in court, saying that blogging wasn’t covered under the ruling. The Times-Union went to the appellate court, which rejected Judge Haddock’s reasoning that the 1979 case didn’t apply but upheld his right to regulate distractions in his courtroom.

Judge Haddock then reissued his original order, ruling that the blogger could blog as long as there were only two media devices per courtroom at any one time, which is consistent with the 1979 case.

Now the blogger will divide time with a still photographer, and the other slot will be occupied by a video camera.

The real surprise came later, when Judge Haddock told the media that they couldn’t do their thing in his courtroom when he wasn’t there!  http://bit.ly/4Rkuse Apparently, he thinks there’s no news unless he’s in the courtroom.  And apparently, he thinks he can control what other people do in a public building! The Times-Union says it won’t appeal the latest ruling, but I think it should. I can’t fathom how Judge Haddock thinks he has the right to tell reporters what they can or cannot do in a public courthouse on their own time.

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Searching Your Blood: P.S.

January 21, 2010

I decided that I should add to the comments I made recently about search warrants for blood draws in DUI cases. In an effort to simplify the legal issue, I neglected to mention that the state has been getting search warrants only in cases where the accused refuses a breath test. My opinion is still the same on the issue, but I should have pointed that out.

Drivers in Florida agree to submit to any legal test of their blood alcohol content when they get a license (check the small print on your license). But as most people know, you can still refuse to take the breath test. The refusal carries with it what’s called an administrative penalty, which is the suspension of your license—12 months the first time, 18 months the second time.  In addition, you can now be charged with a misdemeanor for a second refusal.

This really just adds to my argument that the state shouldn’t seek a search warrant when someone refuses a breath test. We live in a representative democracy, which means that we elect our legislators to make laws for us. The legislature has the power to authorize forced blood draws in any case where a driver refuses a breath test, but it has not chosen to do so.

We’re all better off everyone follows the rules in an orderly and reliable fashion.  As the standard jury instruction read at the end of every criminal case says, no one of us has the right to violate laws we all share.

DUI: Searching Your Blood?

January 20, 2010

I was out of town last week when the Times-Union ran a story about a Jacksonville DUI ruling with huge implications for everyone in the community.  I almost fell off the sofa Sunday afternoon when I saw the headline.

Florida law outlines very limited circumstances in which the police are allowed to force a suspected drunk driver to give a blood sample for testing of the driver’s blood alcohol content.  Basically, unless you’re involved in an accident that causes a death or a serious bodily injury, the law doesn’t give the police the authority to take your blood.

But the State Attorney’s Office, in my opinion, did some legal gymnastics in an effort to circumvent the Florida statutes. In accident cases not involving death or serious bodily injury, the police started seeking search warrants, arguing that a suspected drunk driver’s blood is property that can be seized upon a showing of probable cause.  Some local judges were signing off on these warrants, allowing forced blood draws.

Defense attorneys, of course, contested this practice.  Finally, Jacksonville attorney Scott Mitchell brought a test case.  The trial court judge agreed with Scott that this new practice did not comply with Florida law.  The State appealed, and the case went before a three-judge panel of circuit court judges.  Two out of the three judges ruled against Scott’s client, but I don’t think the case will end there.  We can look forward to another appellate round.

The Florida legislature was very specific in writing the DUI statute. If the public wants the law changed, then legislators should respond by amending the statute.  Unless and until that happens, the police should follow the law just like they expect drivers to do.

Listen to Us on the Radio!

January 19, 2010

Mike and I are going to be on a local call-in talk radio show called Advocate for Success on Sunday, January 24 at 3:30.  We’ll be talking about Social Security disability issues.  Tune in to hear us!  http://www.advocateforsuccess.com.

Born Round: The Secret History of a Full-Time Eater by Frank Bruni

January 18, 2010

I just finished this entertaining memoir about a guy who, like me, loves to eat!  And, like me, he has always fought the battle of the bulge.   He chronicles the history of his battle, intertwined with the story of his large, loving, Italian family that equated food with love.  This former big-time newspaper reporter is an incredibly gifted writer.

Welfare Brat: A Memoir

January 18, 2010

I love, love, love to read!  I always check out more books at the library than I can read in the three weeks I’m allotted (thank goodness for online renewals!). I’d love to have a Kindle but haven’t been able to convince myself to let go of that much cash yet.

Just for fun, I’m going to share books I’m reading and books I’ve read recently that I like.

I just started this book by Mary Childers, and I can’t wait to finish.  It’s well-written and intriguing.

Disabled Continue to Wait for Medicare Coverage

January 18, 2010

A news article from Associated Press reports today that the newly-proposed health care legislation does not eliminate the rule that people awarded Social Security disability (SSDI) benefits have to wait two years to get Medicare coverage, a change that disabled people and disability advocates were pushing for. Such a change would certainly benefit our clients, and I’m sorry to find out that it won’t be part of the new bill.

Typically, people apply for disability benefits right after they get sick or injured, because they’re unable to work. Even if their prior job provided health insurance, most people can’t afford the cost of COBRA. Some lucky people have access to health insurance through a spouse, but the rest are left to their own devices while their disability application is processed through the Social Security Administration.  This long, torturous adventure full of red tape can take up to two years (sometimes even longer).  In the meantime, many applicants have trouble getting access to health care.  They have no income (or they’re relying on one income instead of two) and no insurance. Then, when they are finally awarded benefits, they still have to wait for Medicare to kick in. They still have to wait to see a doctor! Meanwhile, their conditions get worse because they haven’t been able to afford treatment and medications.

These hard-working people, through no fault of their own, don’t have the “luxury” of access to health care during a time when it’s critically important. Should access to health care be a luxury reserved for the lucky and the affluent? I don’t think so.

Sentencing Guidelines, Part II

January 18, 2010

I came across another example of the way our judges are not allowed to use their own judgment anymore.  These are the kinds of things that don’t make the newspapers.  “Tough on crime” rolls off the tongue really easily, and it makes us all feel good, but it doesn’t take into account all the cases that get swept under the rug of injustice in our furor to rid our streets of violent crime.

This was a Jacksonville case.  The charge was possession of cocaine.  The defendant had prior felony convictions, and the sentencing guidelines called for a minimum sentence of 14 months in prison.  But the trial judge felt that the defendant was amenable to drug treatment, so he sentenced the man to six months in the county jail, to be served in the residential drug program (which is a well-respected treatment program).  The state appealed, arguing that the judge did not have a valid reason for sentencing the man to a sentence lower than the sentencing guidelines called for.  The First District Court of Appeal agreed, ruling that the judge did not have a valid reason for a “downward departure” sentence, and sent the case back to the trial court for resentencing within the guidelines.

I’m not faulting the First District Court of Appeal.  The court’s legal reasoning was correct.  And I’m not saying that the trial judge’s sentence was the one I would have imposed.  I don’t know anything about the particular facts of the case.  I might have felt that a prison sentence was more appropriate.  The point is that trial judges are supposed to use their experience, reasoning, and judgment in making these kinds of decisions, and in many cases their hands are tied.  The law does not always permit them to impose the sentences they feel are appropriate and justified under the particular circumstances of the case.

If you were in front of a judge, no matter whether it was for a traffic ticket, a DUI, or any other crime, wouldn’t you want the judge to make a sentencing decision based on all the facts? Wouldn’t you want the judge to consider your particular circumstances?  I know I would.

The Prosecution’s Responsibility in a DUI Case

January 11, 2010

A Boston attorney and Boston Globe blogger recently wrote a great blog post about the Brady rule. http://bit.ly/68IzI8. In a nutshell, the Brady rule requires the prosecution to disclose exculpatory evidence to the defense (i.e., information that tends to prove that the defendant is innocent or that casts doubt on the credibility or reliability of the government’s evidence).

This issue appears in the news every once in a while when a violation occurs in a high-profile case. Recently, it happened in the trial of Alaska Senator Ted Stevens. But it happens more often that you might think in run-of-the-mill cases that don’t show up on the evening news.

How might this situation play out in a DUI case? Let’s use a hypothetical example. Tina Preston was pulled over for swerving late one evening after she reached across the seat to pick up her cell phone. She was coming home from a dinner meeting with a new business associate, but she wasn’t feeling very well, and she had only had one drink. But the police officer smelled alcohol on her breath, so he questioned her about where she had been and what she had been doing. He didn’t believe Ms. Preston’s story, so he asked her to perform field sobriety exercises. Not satisfied with her performance, the officer arrested her and charged her with DUI. When she got downtown to the jail, Ms. Preston was outraged that she had been arrested, and, not trusting the accuracy of the Intoxilyzer machine, she refused to take the breath test.

At the trial, the officer testified that Ms. Preston was weaving within her lane and swerved dangerously out of control, leading him to have a reasonable suspicion that she might be impaired. He went on to say that Ms. Preston had a strong odor of an alcoholic beverage about her person (this is what I call cop talk). He testified that her speech was slurred, so he asked her to perform field sobriety exercises. According to him, she did not walk perfectly heel-to-toe, leaving a half-inch gap between the heel of one foot and the toe of the other; she touched her nose just above the tip instead of on the tip as he had instructed her; she couldn’t stand on one leg for 30 seconds; and she recited her ABC’s too quickly. He testified that he felt she was under the influence of alcohol to the extent that her normal faculties were impaired. Unfortunately, despite the best efforts of her defense attorney, the jury returned a verdict of guilty, and Ms. Preston was sentenced to the minimum mandatory penalties for a first conviction.

After trial, Ms. Preston’s defense attorney found out that the police officer had a friend riding with him that night. He interviewed the friend, who said that Ms. Preston’s speech was not slurred that night and that he did not see anything wrong with her performance on the field sobriety tests. This was exculpatory information that could have led the jury to a not guilty verdict, and the prosecutor should have revealed it to the defense attorney. (For that matter, the officer should have written the name of his friend on the police report since he was a witness, and he should have told the prosecutor about it.) What if the prosecutor didn’t know about the witness, you ask? Well, the prosecutor should have asked the officer if there were any other witnesses.

Ms. Preston’s defense attorney convinced the trial judge to grant her a new trial, and she was acquitted the second time around (with the testimony of the additional witness).

I created this hypothetical based not on the facts of any particular case, but on years of experience handling DUI cases. This kind of thing has happened before, and it will probably happen again. Prosecutors have an ethical duty to seek justice, not just convictions. Unfortunately, sometimes their zeal for winning causes them to lose sight of what’s right.

Expanding Police Power to Arrest for DUI?

January 10, 2010

The Florida Times-Union ran a story this week about a bill that two Jacksonville lawmakers are trying to pass into law. They want to give police officers the legal authority to arrest someone for DUI even if they didn’t see the person driving. I’m not so sure that this is a good idea.

In Florida, the police have to have a warrant to arrest you for a misdemeanor if they didn’t actually see the alleged crime occur. (One notable exception is domestic battery.)  So if there was evidence that you were driving under the influence, but the police didn’t actually see you driving, they would have to seek an arrest warrant from a judge by showing probable cause.  How would they show probable cause? It would depend on the circumstances of the case, but typically they would do it by telling the judge what witnesses saw and heard or what an accident investigation showed.  But these situations are pretty rare—most people are arrested for DUI right after the police pull them over.

The newspaper gave a hypothetical example of someone who pulls into the guard station of a gated community and decides to walk away after the attendant calls the police to report that the person seems intoxicated.  Under today’s law, the police would have to get an arrest warrant in that situation.  I just don’t think it happens often enough to warrant passing a new law that gives the police more discretion and the public less protection against government intrusion. In 18 years of handling DUI cases, I can remember running across only a handful of cases (other than accident situations) where the police were forced to get a warrant before arresting someone for DUI.  I can’t remember even one that happened like the hypothetical example in the paper.

Do we really want to give the police the power to arrest people for DUI on the spot without seeing it themselves? The process of seeking an arrest warrant, including gathering enough evidence to show probable cause that the crime was committed, serves a valid purpose. It protects all of us from potential abuses by the police.  It provides checks and balances on their power. It also protects us from each other. Imagine this situation: boyfriend and girlfriend have an argument.   They’ve had a couple of drinks. Girlfriend decides to call the police to report that boyfriend was driving drunk, knowing that she can have him thrown in jail on her word alone. Based on my experience, this is a scenario I could definitely envision–and it scares me.

Instead of passing another law that could have unintended consequences, let’s focus on educating people about the dangers of drinking and driving.  Let’s encourage people to take a cab if they’ve had too much.  And let’s try to keep our civil liberties intact.