South Florida Criminal Defense Lawyer Blog

More than 65,000,000 (one in four adults) people in the U.S. have some form of criminal record. For each of them the consequences of a criminal record carries both legal disability and a social and economic stigma. Collateral consequences of a conviction impose legal restrictions including the loss of civil rights, voting privileges, disqualification from many professions, loss of economic opportunities from lenders, credit providers, educational opportunities and grants, public assistance and publicly funded training programs. The U.S. Congress has convened a Task Force under the House Judiciary Committee.  The bipartisan Over-Criminalization Task Force has conveyed and taken testimony.  The National Association of Criminal Defense Lawyers has appeared before the committee to provide the House with information and insight.  The Task Force will study and produce suggestions to address the collateral consequences on the federal level.  The committee has heard testimony that across the board mandatory collateral consequences be eliminated.

Expected findings are that the collateral consequences fall disproportionately on racial and ethnic minorities.  Many members of Congress were clearly looking for information and guidance from criminal justice activists and the Department of Justice. The issue involves the loss of productivity and the total economic and social costs borne by the U.S. economy when persons with criminal records cannot become tax-paying citizens and become less productive or non-productive members of the community.

The Task Force will study and consider changes in the laws and policies so that as a national policy the nation will:

1. Seek to end second-class legal status and stigmatization of persons who have completed their sentences;
2. Only impose collateral consequences for specific offenses and not all convictions;
3. Impose collateral consequences on recent offenders and create a route for consequences to be eliminated with the passage of time and proof of improved conduct;
4. Restore legal rights and status upon completion of sentence;
5. Design and implement a program whereby individuals can earn the right to end collateral consequences;
6. Permit individuals charged with a crime to avoid collateral consequences by court-sanctioned programs;
7. Encourage decision makers such as lenders and landlords to review on a case-by-case basis individual offenders who have had collateral consequences lifted;
8. Fund States to purge old in inaccurate criminal records;
9. Encourage criminal lawyers to seek avoidance of collateral consequences in plea negotiations; and
10. Fund public education programs.

For more information, read:

NACDL’s Executive Summary of its report: “Collateral Damage: America’s Failure to Forgive or Forget in the War on Crime – A Roadmap to Restore Rights and Status After Arrest or Conviction”

This week, the U.S. Supreme Court released a unanimous decision on cell phone searches by the police.   It is now a requirement for police to have a search warrant to search a cell phone.
The Supreme Court observed citizens are under increasing governmental surveillance.  Face recognition software can recognize individuals with 20% of the  face covered.  Cellphones and mobile devices can be triangulated to location.  Voice recognition identifies individual voices, and artificial intelligence systems listen, screen, discern and know who said what to whom when and where.  Ten years ago the fractionated accumulation data did not mean anything other then geewizz tech stuff, until, the Justices observed, law enforcement agencies collected and collated the data to track individuals without a warrant.

The Supreme Court decision requiring warrants for cell phone searches stated that the assembling of available data to track citizens has constitutional implications.   May the government  assemble data to track citizens without a warrant is the issue.    The public debate goes from: “If I’m doing nothing wrong, then I have nothing to hide.”  To: “If I’ve done nothing wrong, I have nothing to prove.”   The landmark ruling holds:  a cellphone taken off a person in custody cannot be examined and used as a window into derivative content.   To do that, the police must obtain a warrant.  Getting a warrant means they have to present information to a neutral magistrate (Judge) that justifies probable cause that a crime has been committed or is being committed.

This is the first of what will be a decades long series of cases, as yet unfiled and as yet unimagined, to test the limits of governmental accumulation of seemingly harmless information.  Supreme Court decisions have recognized  a right of privacy, but commentators correctly point out that there is no constitutional language creating it.  It is argued that privacy rights have been spun of whole cloth by judges wanting  to create a legal concept of privacy rights without a constitutional basis.    Privacy has been defined as acts, thoughts, or exploits to the edge of an individual’s emotional and moral compass that are protected from governmental regulation.    Embodied in constitutional structure,  the Bill of Rights, grants government  limited powers.     The Supreme Court has given  a frame, a skeleton, upon which the law can flesh out limits that let government govern conduct but not rule lives.  Defined as such, the Court ruled,  it is reasonable for a warrant requirement before an intrusion.

For more information, read:

• New York Times Article: “Major Ruling Shields Privacy of Cellphones”
• Wall Street Journal Article: “Supreme Court: Police Need Warrants to Search Cellphone Data”

The public conversation on the use of armed drones is in the news.  On one side it is argued that Due Process rights confer upon judicial process the sole venue for “civilized” adjudication before the imposition of the death penalty.  Remember that great movie line from Silverado (1985) when the Sheriff said: “We’re gonna give you a fair trial followed by a first class hangin.”   On the other side is the argument that the right of a “self-defense” killing of terrorists (either in leadership roles or carrying out the directives of homicide upon non-combatant civilians) is justified.  But now, it is argued, that for the same reason you can kill a pirate at sea, nations can kill terrorist targets on land.  Here’s how the argument is posited:

The  “right of innocent passage” by seafarers pre-dates Chinese trading junks of the third century B.C. and Greek trading vessels plying the waters of the Mediterranean.   Codified in the United Nations Convention on the Laws of the Sea are historical, and still valid, rules of conduct at sea as to the right of unfettered passage. The Geneva Convention on the conduct of armed conflict and modern judicial process conflate with those ancient laws of the sea; those who impede safe passage of seafarers can be summarily executed.

Under a court order the Obama administration released the legal justifications and rationales for the use of armed drones to  kill military approved targets (people). The New York Times and the American Civil Liberties Union had pressed the administration for the release of these legal justifications. Responding to pressures, the administration released the memorandum for publication in the press. Traveling under the theory that the government has the right to impose death on its own citizens under the public authorities justification, the memo was released. The “public authorities justification” permits fire trucks to break the speed limits in emergency calls. The “public authorities justification” permits a homicide (the taking of a human life) by police officers. The explanation given in the memo lists “imminent mayhem” as justification under the “public authorities justification” rubric for drone killings.

What is not disputed in the released legal memorandum or in other government policy documents, as of yet, is the ancient rule permitting the killing of pirates for acts of piracy at sea. The rule, simply stated, is that a pirate attempting to board a vessel can be summarily killed. By analogy, a person who is in the process of attempting or committing an “act of mayhem” can be justifiably summarily killed, as any pirate attempting or boarding a vessel at sea.   In a contemporary legal analogy, Florida’s Stand Your Ground statute can justify an act in self-defense resulting in the taking of human life. The New York Times, in an editorial opposing any non-judicial rational for terrorist killings, approaches the issue from a due process judicial process aspect.  How different is the case for summarily killing Somali pirates from the use of drones to kill targets of opportunity in this our war on terrorism?  History and politics will ultimately make judgments upon the killings of our times by the use of armed drones.  Where do you stand?

For more information, read the New York Times editorial: “A Thin Rationale for Drone Killings”

Good news, bad news, we’ve heard it all. But when the good news or bad news comes from the voice of a corporate entity and stock prices move up, or down, lots of money is made, or lost. The price of any stock moves on news, here is an example to get grounded: If and when British Petroleum makes statements about the costs of the cleanup of the oil spill in the Caribbean, it’s stock price moves violently.  In this Supreme Court decision, which arose from a class action lawsuit, the question is what to do when a corporation makes a public statement, which has a

significant impact on the price of its stock. Specifically when a class action is filed by groups of individual stockholders who have collectively lost big money.

That very question, about how to handle class-action lawsuits by stockholders, did in fact go all the way up to United States Supreme Court.  Important? Very.  Here’s why: No single stockholder has the resources to sue for his/her individual losses.  These lawsuits take thousands of attorney-hours to litigate.  Now, not only can corporations shut down class action lawsuits faster, but they can also do it for less money.  Now, at the very early stages, these class action lawsuits can be dismissed.  And there’s more: The entire and only legal theory upon which these class action lawsuits are based, the “fraud on the market” theory, has been gutted.

The recent case is a big win for corporations and a big setback for groups of stockholders who sue any corporation in a class action lawsuit. It started like this: Halliburton, a major petroleum services company, made some very powerful statements about asbestos claims that had been filed against it’s companies by people who were injured by asbestos poisoning. The statement went on to project its effects on Haliburton’s earnings in its engineering and construction businesses. It also spoke about benefits of a merger in that field. In a class action by stockholders, they sued on the theory that the statements were false and the corporation’s statements were intended to inflate the price of Halliburton stock.

The Supreme Court’s decision in effect makes it more difficult for investors, grouping together in a class action lawsuit, to file claims. The decision to buy or sell a security is always based on perceptions of market valuations. The Supreme Court just stopped short of ending most class actions based on securities fraud theory. There is no other theory beside security fraud to sue a corporation for making misleading statements that affect the price of its stock.   This decision is all encompassing and very, very, significant. Just so you have some perspective; in the last ten years over $62 billion was paid out by corporations to investors who sued for securities fraud. The recent decision allows corporations to file motions to dismiss at the early stages. It also enunciates some powerful grounds making such dismissal motions very likely. Previously the law permitted a presumption of securities fraud just by alleging, that is accusing the corporation of trying to affect stock prices by making public announcements. The rules have now changed, making these suits more difficult to win and subject to early dismissal. This is consistent with earlier decisions by the Supreme Court. Over recent years, the court has limited workers and consumer class action lawsuits and this recent decision reads consistent with previous decisions affecting consumer and workers. Class actions bode well for a continuing trend: the law now requires more proof and earlier proof by plaintiffs to get the case in front of a jury.

More more information, read:

• New York Times article, “Supreme Court Erects Obstacle to Class Actions for Securities Fraud”
• Forbes article, “Supreme Court Leaves Fraud On Market Intact, Makes Life A Bit Harder For Securities Plaintiffs”

Porous borders and the ease of international travel can create a legal nightmare for even the most innocent of travelers.

For example, a Swiss citizen traveling in the United States and renting an automobile can have a traffic ticket in any of a number of States and run afoul of a myriad of conflicted laws and rules as to extradition. For many business travelers conducting business in one nation, they may run afoul of anti-competitive laws, charges of price fixing or bribery. Often, these business practices are non-criminal in one nation and criminalized in another.

In analyzing an extradition case, start by obtaining the charging document from the Requesting Nation and listing the elements of the alleged crime. Step two is to obtain and read the extradition treaty in effect at the time of the event, or, at the time the Requesting Nation notifies the Requested Nation that extradition is sought. Step three is to define citizenship for each of the persons/parties involved. An accused who is a citizen of Switzerland accused of a crime against a U.S. citizen has a different treaty status than a U.S. citizen who resides in Switzerland and is wanted in the U.S. to face criminal charges. Dealing with even minor traffic infractions can have profound negative results. When entering the U.S., Homeland Security will arrest and detain you for an unpaid traffic infraction. You can remain in custody while Homeland Security contacts the State and asks if the State will pay the cost of transporting the individual. After a delay that can mean 60 days in a customs holding facility, the next step is removal, or denial, of entry into the United States. I’ll use Switzerland as an example to set a roadmap of what to ask and how to proceed. The steps are: Defining the elements of the charge, read the treaty, and identify the nationality of the accused and of the victim(s).

Switzerland and the United States have entered into treaties of extradition in 1900, in 1935, in 1940, and again in 1995. Understanding the process of extraditing United States citizens from Switzerland to face prosecution involves two basic issues: defining the crime and the national policy of the two nations. To understand the first stage we can review the case of the American film artist Roman Polanksi. Polanski entered Switzerland from France (where he lived at that time) to attend a film festival. At the request of the State of California (expedited through the State Department of the United States), Polanski was detained pending removal from Switzerland to the United States and then ultimately to California. He was never actually removed to the U.S. even though the U.S. alleged he failed to appear at his sentencing. His lawyers litigated the matter in equity in Switzerland and won. The Polanski case illustrates that by defining the elements of the Indictment charges (the ‘crime’) into the laws of the Requested Nation (Switzerland in the Polanski case) the results can be different. A good lawyer can mean the difference between a “routine” extradition or a blocked extradition. That is what happened in the Roman Polanski case, and it is an excellent study in the art of lawyering in the complexity of international extradition treaty law.

In all cases ask, “Is the crime charged in the United States also a crime in Switzerland?” Switzerland by treaty will not detain and extradite persons charged with financial crimes unless they are related to another crime, such as one of violence. Tax evasion is a crime in the United States but Switzerland will not detain and surrender a person charged with failure to pay taxes. Article Two of the Extradition Treaty with Switzerland states that the crime charged must be a crime in both the Requesting Nation and the Requested Nation before Switzerland can be compelled to extradite. Sex crimes are another example. In Switzerland, the age of consent for a sex act is sixteen years of age. In most, if not all states in the United States, the age of consent is eighteen. If the United States requests Switzerland to extradite a Swiss national for a sex act within the United States, the age of the purported victim may preclude extradition. If there is any degree of force or the threat of force, then the sex act is an act of violence and the age of consent issue is subsumed by the element of the use of force and extradition will be undertaken by the Swiss. Extradition from any nation to the United States begins with reading the treaties in effect between nations. Also, be mindful that although a nation may not be required by treaty to extradite they can extradite someone anyway. An extradition may be litigated in the nation of origin but once removed and transported the Requesting Nation may not secede jurisdiction if extradition is litigated there.

One of the least understood but most powerful constitutional rights, the Due Process Clause, is the escape route for those as yet un-charged in the ongoing Scott Rothstein prosecutions.

The Due Process dismissal defense, widely used outside of Florida, is dis-favored by most Florida criminal defense lawyers. The motion is based on a little known United States Supreme Court case from 1971, U.S. v Marion. Marion holds that the Due Process clause guarantees a dismissal when the delay between the date of the incident and the filing of an indictment has the result of crippling the defendant’s defense. Marion, and the Lovasco, Howell and Griffin cases compel reluctant judges to dismiss charges. This motion merely has to allege that the length of the delay has prejudiced the defense, and present the court with the reasons the defendant has been prejudiced. Most often witnesses’ memories fade; evidence that would have helped the defendant is lost, misplaced or destroyed, or the delay blind-sided the defendant to his detriment. The burden shifts to the government once a defendant has asserted the delay has made it difficult or just harder to defend himself. The only response that can save the case for the government is that the government has some compelling reason to explain the delay.

In the Rothstein matter, it is hard to understand why the government has sat on this case so long. Filed in 2009, but known to the government since 2007; it is now 2014. Buried in Florida’s case law are a parallel series of cases that make this line of defense available under Florida as well as federal law: the cases are the Barber, Newman, and the Howell cases. I’ve had judges take prosecutors to the proverbial legal woodshed for a major tongue lashing when the judge hears the hollow reasons for the delays. Sometimes we hear that the detective took a vacation and misplaced the case (for four years), or someone had a promotion and left the file in the drawer. The most likely excuse from the government’s delay in filing indictments in the Rothstein matter is…..well I’d like to hear it! Would you?

On the same day that the news reported a shooting at a high school in Reynolds, Oregon, the United States Supreme Court issued a landmark decision on gun control. In this case, which came out of Tennessee, a gun owner with a conviction for misdemeanor domestic violence had to surrender his guns. He ran afoul of a new federal gun statute denying gun ownership upon conviction of enumerated crimes. Domestic violence convictions are included in crimes that prohibit gun ownership.

The U.S. Supreme Court upheld the federal law overruling the Tennessee court: Tennessee had returned his guns. The Supreme Court ruled unanimously against Mr. Castleman who argued that the rights of the gun owner trump public policy of banning gun ownership to convicted persons.

How does that impact the shooting in the Reynolds, Oregon school? The question is who owned the gun and how did the fourteen year old take possession and then enter the school. The nexus is not the right to bear arms but the right to use them. The Supreme Court case, which upheld gun ownership in 2008, said in its ruling that the Constitution does not permit “the absolute prohibition of handguns held and used for self-defense in the home,” and Justice Scalia wrote of the right to use firearms for hunting. District of Columbia v. Heller held that firearms can be owned for self defense. In District of Columbia v. Heller, the Justices wrote: “we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense, and we struck down a District of Columbia law that banned the possession of handguns in the home.” Nowhere does it create an unlimited right to own and bear arms.

What comes next in Oregon is a bigger legal issue. Using a gun for self-defense: OK; Using a gun for hunting: OK; But any other use is where vicarious criminal liability comes in. Watch this: if the student in the Reynolds, Oregon school shooting took the gun from his home, and the gun owner (Mom or Dad) had a conviction for a crime which prohibits gun ownership, then the possession was unlawful and they can be arrested for facilitating the felony of murder. If the gun was stolen or taken without permission, then there is criminal liability for the provider who failed to maintain control.

The thread of gun ownership and gun use is the crux of the anti-gun lobby and this shooting in Oregon will open a floodgate of criminal arrests for anyone who can be connected to the student who shot the teacher and student in Reynolds, Oregon. Remember what the Supreme Court said in these two cases: gun ownership for self-defense and hunting: OK. Gun ownership can be denied for conviction of enumerated crimes. Having the right to own a gun and having the right to use it is where the screw will turn. The National Rifle Association and defenders of gun rights have to now deal with an entire new wave of legal issues. The anti-gun lobby will seek to further restrict the right of law-abiding citizens to own, carry and use their guns. The Second Amendment must be turning in its metaphoric grave and gun owners need to speak with a united voice to push back against those who will limit gun ownership or you may be permitted to own a gun but you may not be permitted to use it.

The World Justice Project defines itself in terms of its mission: “To increase public awareness about the foundational importance of the rule of law, stimulate government reforms, and develop practical programs at the community level.” The 2014 index rankings are as follow:

Denmark, Norway, Sweden, and Finland scored as the top four rankings of the World Justice Project’s 2014 “Rule of Law Index”. The United States ranked #19 just ahead of Uruguay (#20) Chile (#21) and Poland (#22). Estonia (#15) beat the USA.

Scores are based on nine factors:

1. Constraints on Government Powers
2. The Absence of Corruption
3. Open Government
4. Fundamental Rights
5. Order and security
6. Regulatory Enforcement
7. Civil Justice
8. Criminal Justice

9. Informal Justice [Think religious courts, tribal controls and deep rooted cultural norms].

When Fundamental Rights were measured, the U.S. came in #27. Fundamental rights were defined by The World Justice Project as a measurement of how effectively countries uphold and protect rights and freedoms established under international law. These rights include equal treatment under the law, the absence of discrimination, due process, and personal security, freedom of religion, expression of opinions, rights of the accused, assembly and labor rights.

When measuring Order and Security, crimes such as homicide, kidnapping, burglary armed robbery, extortion, fraud and the commonality of the use of inter-personal violence to resolve conflict, the United States came in at #18, behind Uzbekistan (#5), the United Arab Emirates (#9), Malaysia (#12) and the Republic of Georgia (#17). In the category of Absence of Corruption, the U.S. ranked # 21, behind Korea (#16) Estonia (#18) and France (#20). When measuring Civil Justice, which is how societies provide for ordinary people to resolve grievances and remedies through peaceful and effective civil manner, rather than resorting to violence or self-help, the United States scored at #27. Ahead of the U.S. is Korea (#10), Estonia (#15), Uruguay (#17) and Jordan (#21). In measuring Criminal Justice, the U.S. came in at #22, behind the United Arab Emirates (#7), the Republic of Korea (#8), and Estonia (#13) and just after the U.S. came Botswana at #23. The World Justice Project defines an effective criminal justice system as one that is capable of investigating, prosecuting, adjudicating and punishing criminal offenses successfully, reliably and in a timely manner through a system that is impartial and non-discriminatory, as well as free of corruption and improper government influence.

The World Justice Project Rule of Law Index for 2014 is the fourth in its annual report series. It is based on a comprehensive data set drawing from primary sources. In preparing its annual report, the World Justice Project drew upon over 100,000 experts and household surveys in over one hundred countries. It defines itself as, a “quantitative assessment tool designed to provide a comprehensive picture of the extent to which countries adhere to the rule of law in practice.” See the World Just Project Rule of Law Index. The WJP says its Index is the most comprehensive index of its kind, reflecting the actual conditions experienced by the population. Heads of state, chief justices, business leaders, public officials, and the press have cited the report.

For more articles on the WJP Rule of Law Index, see:

• Forbes: Top 10 countries where justice prevails
• Times.com: Want justice? Try Scandinavia
• ABA Journal: Aggressive action—not tinkering—is required to resolve the access to justice crisis

Wars consume warriors unless a community declares war on itself. In the United States, we are coming off a long run of enhanced penalties, minimum mandatory prison sentences, incarcerating addicts, and life-terming fully one in nine of those in custody. The National Association of Criminal Defense Lawyers issued a thorough report at the Open Society Foundation in Washington D.C. Read it after my review of the salient findings: it is a sobering tour of the results of a societal effort to reduce crime.

The report tells us that over sixty-five million Americans (one in four) have a criminal record. A criminal record limits lives to underclass status…permanently. Felons cannot vote. Felons are disqualified from most professions. Felons cannot obtain student loans. Felons cannot reside in Public Housing. Felons are denied educational and training programs. A household living in a public housing facility cannot receive back into their home a convicted felon family member; the entire family must be removed for housing a convicted felon. The systemic isolation and denial of the tools for rehabilitation serve neither the victim nor the community. Someone with a felony conviction is limited in his or her employment opportunities, housing and credit. In one generation, the U.S. prison population has gone up by a factor of four, as there are 2,200,000 inmates in U.S. jails and prisons, which is five to ten times the incarcerated rate of other democratic nations. One in nine inmates are in for life terms. Both Human Rights Watch and The National Academy of Sciences have researched and written on this issue.

A criminal event is both life altering and life limiting, to the victim, to the accused and to the community at large. Increasingly, as our world becomes more complex, it becomes more crushing. Addiction and incarceration are so prevalent in the population of convicted felons as to out-represent all other criminal categories including sex crimes, murders, arson, and battery. With such a substantial number of convicted felons with substance abuse, it raises questions as to the appropriate approach to addictive disorders as opposed to pure criminality. Over fifty percent of those in our State prisons are there for non-violent crimes. If the purpose of a criminal sanction, once incarceration is complete, is to rehabilitate and reform, it must deal with the reality once created that defeats this purpose. Sanctions without end and societal mars that permanently create a growing underclass, serves neither the victim, society, or a rational purposeful and directed criminal justice objective. The fact that the Congress has taken up this subject in modifying the federal sentencing guidelines underscores the policy considerations under review. It is for all of us, in the legal or government field to be informed and armed with information to carry the debate from the courtrooms to the classrooms and boardrooms. The NACDL Task Force on the Restoration of Rights and Status After Conviction held hearings and testimony from 150 witnesses before drafting the report. The report summarizes its findings with ten recommendations for policy-makers in government.