Orlando Criminal Law Blog

The Sixth Amendment to the Constitution of the United States has been interpreted to insure defendant’s who are on trial a right to a fair trial.  See Estelle v. Williams, 425 U.S. 501, 503, 96 S. Ct. 1691, 48 L.Ed. 2d 126 (1976).   Part of the process of a fair trial is that a jury cannot consider anything but the evidence that is introduced at the trial.  See Holbrook v. Flynn, 475 U.S. 560, 567, 106 S. Ct. 1340, 89 L.Ed. 2d 525 (1986).  This fundamental right is a well settled principle of law and one that is not often tested.  However, every now and then, a creative prosecutor or an over zealous police agency will test its bounds, such was the case in the trial of Jacquan Shootes.  See Shootes v. State, Case Number 1D08-3266 (Fla. 1st DCA, October 20, 2009).
Mr. Shootes lived in a home that was about to have a search warrant executed on it.  The police preferred to search the home while it was unoccupied.  In order to accomplish this, Mr. Shootes received a phone call advising him to leave his home where he would be temporarily detained until the police had finished their search.  Mr. Shootes was not aware of the search that was to be conducted and as he walking down the street two unmarked cars with darkly tinted windows boxed him.  As Mr. Shootes turned around, he testified that he saw a person with a “big old gun” jump out of one of the cars.  The officers claim that they were wearing tactical gear and were shouting police.  Mr. Shootes denied that the police properly identified themselves as police officers.
Mr. Shootes testified that he thought the men with guns were robbers and that he drew his own handgun in response to the show of deadly force and fired at the officers.  The officers returned fire and Mr. Shootes had been shot and arrested.  The evidence was in conflict as to whether or not the tactical uniforms clearly identified the officers as police officers.
The trial lasted for four days.  On the first three days, the courtroom was occupied by the normal court personal, that is:  the courtroom deputies, the judge, the prosecutor, the clerks, the court reporter, the lawyers for the state and for the defense, the defendant and the members of the jury.  Due to a rule known as witness sequestration, no witnesses who would be testifying could attend the trial until after their testimony had been utilized and they were not subject to recall by either party.  Unlike what the public sees in television, this courtroom probably was not packed with anybody else.  While trials are very interesting to watch, they just do not lend themselves to the one or two hours that television and movies devote to them.  However, on the last day of the trial, an interesting series of events took place.
The defense attorney showed up to the same courtroom as he or she had been in for the prior three days only to discover that the trial had been moved to a larger courtroom.  Perhaps the judge needed a change of scenery.  If only that were true.  During the final day of trial, inexplicably the galley where the public can sit and watch started to fill up with police officers that were estimated to be between 35 to 70 officers depending on the various eyewitness accounts.  As a side note, I wonder who was protecting the public?  All of the officers were identified either as wearing formal police uniforms or undercover shirts with bright yellow lettering identifying themselves as narcotics officers for the police department.
After the jury had convicted Mr. Shootes of presumably aggravated assault on a police officer with a firearm, Mr. Shootes’ attorney decided that perhaps having all of these police officers in the courtroom was not such a good idea.  In defense of the attorney for Mr. Shootes, there are many things that his lawyer was probably thinking about and the last thing he probably thought to do was to turn his or her head around during the trial to see who might be watching the trial.
During a hearing arguing for a new trial, the trial judge noted that the view from the bench indicated that at least 25 of the people in the audience were police officers.  However, because nobody misbehaved the trial was a fair trial and the jury’s verdict would not be set aside.
On appeal, the appellate court found that sometimes an attorney’s failure to make an objection at the time of the perceived error will still be preserved for appellate review.  This extraordinary finding is necessitated when the a court believes that that the error is so fundamental that it affects a person’s right to a fair trial.  Such was the case in Mr. Shootes’ trial.  The appellate court reversed the trial judge because the trial judge had a duty to insure a fair trial and this also meant that the atmosphere that the trial took place in was neutral.  The problem in this case was that the officers appearance was designed to influence the jury about whether or not the police properly identified themselves not only through their words but also through the type of clothing that was worn the night of Mr. Shootes’ arrest.  Further, the court ruled that the presence of these officers was not to maintain order or to merely observe a trial, but was designed to send a message to the jury.  The court reversed this conviction and has sent the case back to the trial court for a new trial.
This type of gamesmanship was costly to society.  Mr. Shootes was denied a fair trial.  As a result, the resources that were spent to bring his case to trial were significant.  Not only did the government squander its limited resources, but the police brought dishonor to themselves for no reason at all.  Those who enforce the law have a responsibility to conduct themselves with honor.
The way I see it, it is my job as a criminal defense attorney to be the check and balance in this system that we call criminal justice.  I always respond to people when they ask me how can I defend criminals.  I first point out to them that I defend people accused of crimes and that we are all innocent until proven guilty beyond a reasonable doubt.  Then I let each person know that I am there to make sure that the process treats each of us fairly and with due process.  Despite this illustration of how a trial can go wrong, it is also an illustration of how the process works and works well.  The appellate court simply did not give its rubber stamp of approval to this case.  Rather, the system gives itself credibility by reversing this conviction to insure that Mr. Shootes will receive a fair trial free from undue prejudices that can be controlled by a judge.

In a recent court case in Tampa, Florida, a person was standing before a judge under the wrong impression that they were not heading to prison for stealing a very expensive generator.  See Lehmkule v. State, Case Number 2D08-4554 (Fla. 2nd  DCA, October 16, 2009).  This was despite the fact that the victims wanted the defendant to goto jail and the prosecutor was not recommending any departure from the sentencing guidelines.
The reason the defendant was under the impression that he was not going to jail was because his lawyer had told him that the Florida Sentencing Guidelines allowed the judge to issue a downward departure because the need for restitution outweighed the need for jail.  While it is true that this is a recognized ground for departure, the lawyer apparently forgot to tell the client that this ground only works when the victim wants the restitution more than the jail time.
The defendant had entered his plea and was in the middle of the sentencing hearing when it was discovered by the defense attorney that the judge was not going to grant a downward departure on that ground because the victim was emphatic that they wanted the defendant to goto jail.  In fact, the victim believed that the defendant would never make the restitution and was willing to forgo restitution in favor of punishment.  Well, as one can imagine, the defense attorney was not feeling too good at that moment and neither was his client.
The defense attorney had a choice.  Option A was to proceed with the sentencing hearing and wish his client best of luck in prison.  Option B was to ask the court to allow his client to withdraw his plea so that he could proceed presumably with a trial.  Neither were good choices.  Option A was not a bad choice because then the defense attorney could bury the case and and hope that his client would not know any better and serve out his time.  However, this defense attorney demonstrated character and chose option B.
The defense attorney stated the following to the court:
Your Honor, that at this point if you’re not willing to downward departure [sic] I’m moving to withdraw the plea based upon ineffective assistance of counsel.

I told Mr. Lehmkuhle I thought there was a strong possibility of him being downward departed since the need for restitution to the victim, especially the people of Haiti was so great. And we’ve heard that it is, but they still — but the victims in this case still want prison. I was ineffective. I’m asking to withdraw his plea today if you’re unwilling to downward depart, Your Honor.

This admission by the defense attorney was his attempt to establish good cause for the withdrawal of the plea prior to sentencing.  The trial judge dismissed this attempt and proceeded  to sentence the defendant to five years prison.  Luckily for the defendant, the district court of appeal took pity on the poor soul and has allowed him to withdraw his plea.

The lesson that should be drawn from this experience is the need for attorneys who practice in criminal courts to be competent in the legal advice that they provide to their clients.  Too often, clients want definite results.  The problem is no two cases are identical.  Some people will hire attorneys based upon a verbal guarantee made by the attorney.  For example, “If you hire me, then I promise you that you will not see any jail.”  This is wrong and if you hear an attorney giving you a guarantee, then you probably are not going to be happy at the end of your case.  Clients must be willing to recognize that the practice of law is not an exact science.  Competent attorneys will do their best for their clients, but in the end we cannot give you a guarantee as to a result.  Yes, we can predict, but in making those predictions, the prediction should always be based upon a proper understanding of the law and how it works.  The Florida Sentencing Guidelines are complicated and they must be consulted prior to entering a plea so that a proper sentence can be counseled on.  If you find yourself being faced with a potential to enter a plea, make sure you get all of the facts and how the law may affect your future prior to committing yourself to an attorney who may or may not be confessing error to a court at your sentencing hearing.

Well, I have finally entered into the 21st century with this blog.  I am not sure what shape this blog will take, but I have some great ideas for it.  My plan is to post no less than once a week on topics of law that I find interesting to talk about.  My main concentration will be in the area of criminal law in Florida.  However, that does not mean that this blog will be exclusively about criminal law.  As a solo practitioner, I will from time to time share with you the highs and lows of running a solo practice and how it impacts my life.  I hope we will learn and have fun with this blog.  I welcome your feedback and I look forward to this new adventure.