Recent Blog Posts

The Value of a Trial by Jury

Adam Pollack — Thu, 19 Jan 2012 03:41:00 GMT

I recently went to trial on a case where my client was facing up to fifteen years in prison for the offense of aggravated fleeing and eluding a police officer. He was also charged with driving while license is suspended or revoked. The alleged facts seemed to indicate that my client had no chance of wining at trial. Simply stated, my client (whose license had previously been suspended) was allegedly at a gas station. My client is well known to the local police. I am sure it has nothing to do with the fact that he has been arrested multiple times over the last ten years. Sure enough, a police officer was at this gas station when he believes he has observed my client to be present at the gas station. The officer knew that my client's drivers license was suspended and apparently was pretty confident that my client knew this officer. The officer allegedly said hello to my client and then proceeded to take up a position just outside of the gas station because he strongly believed that my client was about to get into a car and drive off. According to the police officer, that is exactly what occurred and he promptly initiated a traffic stop. Unfortunately for the officer, the person he was attempting to stop, failed to stop and took off at a high rate of speed despite lights and sirens being employed by the officer. The police officer had a no chase policy in place for this type of situation and decided not to give chase, rather he was smug with the fact that he knew who the driver was and he would simply request that a warrant be issued for his arrest. Two months later, my client is arrested and charged with the offenses previously stated.

Quite frankly, this fact pattern was not the most appealing one to go to trial on. I believed that there was a high likelihood that my client would be found guilty as charged and that despite my best counsel to him to accept a generous plea offer he would find himself in jail when he could have been on probation. He was already a convicted felon and I did not get the distinct impression that one more felony conviction was going to matter to my client. He politely, but firmly, told me that he would accept no resolution to this case because despite the police officer's assertions, he was not at the gas station on the day in question and he did not drive off in front of that officer and speed away after being ordered to stop.

Ok, fair enough. After all, it is not my freedom on the line. I assured my client I would do my best to represent his position in court. One of the most sacred rights we enjoy is the right to a trial by jury. This right comes from England and was incorporated into all 13 colonies as a matter of right. The newly formed United States also incorporated the right to a jury trial in our Bill of Rights. Every state in the United States provides a guarantee that its citizens will be granted a jury trial in most instances when that right existed at common law from England. In Florida, people have a right to a jury trial in all criminal offenses unless the prosecution and defendant agree to waive that right. The jury system is a brilliant advancement in dispensing with justice. Of course there are instances where people think juries get it wrong. Many think that occurred with O.J. Simpson in his infamous murder trial. More recently, Casey Anthony was acquitted by a jury in her infamous murder trial. However, the alternative that existed prior to a trial by jury was a trial by one person who was the judge, prosecutor and executioner (aka the "king"). Well, the nobles in England did not care for that system of justice and the jury trial started to evolve with the Magna Carta written in 1215. From there, the rest is history.

A jury trial operates as the ultimate check on the power of government. Rather than the police officer or the strongest thug in town deciding your innocence or guilt, a group of unbiased people are selected to hear the evidence and render a verdict that must be unanimous. This coupled with the fact that every person enjoys a right to be presumed innocent until the evidence convinces a jury beyond a reasonable doubt that a person is guilty is good stuff for all of us. This is where the story gets interesting.

Back at my recent trial, Joe officer takes the witness stand and swears to tell the truth and proceeds to testify pretty much as outlined above. Problem was, this officer did not expect a vigorous challenge to his version of events. Another great feature in a trial is the ability for the accused to confront his accusers and cross-examine them. Joe officer and the prosecution were content to rely upon the fact that nobody could possibly doubt what a police officer had to say and of course this was just a longer way to obtaining a conviction. Due process can be a time consuming and thorn in the government's ass.

The cross examination of the only witness at this trial revealed that this officer failed to remember to write in his report the fact that he had a conversation with my client. He further failed to remember to check the vehicle's tag information. The officer also failed to gather any video evidence from the gas station's video cameras. On top of that, the officer's squad car was equipped with a video camera and he failed to turn over that video tape to the prosecutor. At this point, I probably had enough to request a new trial. A less experienced attorney would have and I probably would have too ten years ago. The error was so obvious, the clerk was already typing up the minutes wherein the court had granted a mistrial. However, not only did I not move for a mistrial, I employed this very evidence against the officer and used it in a devastating manner. I simply asked the officer why he failed to do any of the things to preserve evidence. His smug answer was because he did not need to do so because the officer knew who was the driver and he was 100 percent confident of his position. Hey, prior to trial, I was confident that the officer got it right. However, one of the areas I like to explore with jurors is their feeling about subjective evidence versus objective evidence.

I usually pick out one of the jurors and have them comment on something such as the temperature outside. I ask them to tell me if they were hot or cold when they first got outside. In Florida, I have found that many long time residents are cold if the temperature drops before 70 degrees. I then ask another juror the same question and we usually get a different response. Then I ask them that if they had a thermometer and they all agreed that the instrument was accurate would any of them disagree as to the temperature and of course they would not disagree. Then, I ask them to explain the difference between their belief that it was hot or cold versus their knowledge of what the thermometer tells them the temperature is. We talk about how instruments do not care about what you think of their data. We then talk about police officers and other witnesses and how it is only natural for each witness to have a subjective perception and that every witness wants you to believe their version of events.

Back to the trial, this officer was so proud of his observations that he failed to consider that a trial by an unbiased jury might render a different result. The key lies in the reasonable doubt instruction. Reasonable doubt can arise from the evidence, a lack of evidence or conflict in the evidence. This officer's failure to accurately record his alleged conversation, coupled with his failure to do any type of follow up police work provided me with the fundamental reason why a jury trial is so important. The fact that six citizens who were relatively unbiased were able to review this case and weigh the evidence provided my client with the ultimate check on the government's power. He was found not guilty. I do not pretend to think that there was probably a juror or two who thought he was guilty, but the evidence simply failed to convince them beyond a reasonable doubt of his guilt. The jury trial system worked in this case and I believe it works in most cases. Of course there are verdicts that we do not agree with, but in the end, I can think of no other system that provides a level of protection from those who are in power. I am proud of this trial and some of the gutsy decisions that were made. Experienced trial attorneys can draw on their past experiences and make complex legal decisions that less experienced attorneys sometimes fail to make. Many lawyers will not honor their client's request for a jury trial. This failure by those lawyers is many times not even obvious or consciously being done, rather it is a result of fears that are deep within the attorney. Many lawyers have egos and many don't like to see those egos tested. Trial by jury is all about picking winners and losers, especially in the criminal trial. Trials have many risks for defendants and very little risk for governments. If a defendant proceeds with a trial and loses, he or she could lose their freedom. If the government loses a case, they just move on and try another case.

If you are facing a criminal charge, you owe it to yourself to hire experienced criminal trial attorneys. One way to know whether or not your lawyer is experienced is to check and see if they are board certified in the area of law that you seek assistance in. I am a board certified criminal trial attorney and I am proud of that accomplishment. I always use my skills in the courtroom to help my clients to obtain the best possible results in their case. I provide good solid legal counsel to my clients and respect their decisions to proceed or not to proceed to a trial.

The Role a Defense Attorney Can Play at Sentencing: Humanizing their client

Adam Pollack — Wed, 11 Jan 2012 18:19:00 GMT

Every now and then, I get hired to represent a person who tells me that they know that they are guilty, but they need somebody to help them at their plea/sentencing hearing. This recently happened to me.

I received an inquiry from a young lady who was in desperate need for a lawyer to not only listen to her, but to also represent her before the court. She had a lawyer representing her, but this lawyer did not seem to be very interested in digging into her background and finding the good within her. I can't blame the attorney, he was probably overworked and underpaid (he was court appointed) and my client had a record that went on for several pages. Incidentally, it is never great to have a record that goes on for several pages.

Nevertheless, I agreed to represent this person and told her that I could not guarantee a result, but that I could promise her that I would do my best to present her case to the judge in the light most favorable to her. My client also was extremely motivated to help herself and to this end, she was able to provide to me the information that ultimately allowed me to find the good within my client. This information, coupled with my extensive interviewing of my client allowed me to produce a Sentencing Memorandum that I was able to provide to the court. The name of my client has been redacted, as well as the case number. However, I can assure you that this is the real deal and that as a result of my efforts, the judge changed his mind and did not sentence my client to ten months of jail. In fact, the judge disregarded my recommendation and sentenced her to only 18 months of probation plus court costs. I had recommended to the court that the sentence be two years of probation, along with 100 hours of community service.

The following document swayed the judge to reconsider the sentence to impose. The judge went against his better judgment and agreed to give her a chance. I was grateful because not only was it the right thing to do, but because with having less than a week to prepare, I think we were able to obtain the best possible result for this deserving client. I know that not only is she grateful for the opportunity to remain free, but her mother and her two and half year old daughter are grateful.

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA

STATE OF FLORIDA, CASE NO.: 2011-CF-xxxxxx-B-O

Plaintiff,

P. J.,

Defendant.

______________________/

SENTENCING MEMORANDUM

COMES NOW, the Defendant P. J., by and through her undersigned attorney and moves this court sentence Ms. J. for a term of probation not to exceed two years with a special condition of community service not to exceed one hundred hours and any other special conditions that this court deems appropriate. In support of granting this request, Ms. Johnson alleges the following:

1. As a result of being a previously convicted felon, Ms. J is not entitled to a pre sentence investigation. Nevertheless, this court should consider this document as an attempt to put into perspective the life of PJ and who she is standing before this court to be sentenced.

2. On July 19, 2011 Ms. J was issued a Notice to Appear for a second degree misdemeanor charge of petit theft.

3. On or about August 26, 2011 this case was administratively transferred to this docket based on the criminal history of Ms. J.

4. Ms. PJ's life is one that is demarcated by the date August 2, 2004. On this date, Ms. J made a choice upon exiting the Florida Department of Corrections prison system not to go back to a life that she lead prior to this date.

5. Prior to August 2, 2004, Ms. J's criminal conduct was extensive.

6. Ms. J's introduction to the criminal justice system started on November 19, 1991 at the age of 18 as a prostitute.

7. Ms. J lived a life of prostitution and drug use from 1991 until 2003.

8. Ms. J realized during her last period of incarceration that this was not the life that she wanted for herself and was determined to change.

9. Life has never been easy for Ms. J, this became especially true for her as she learned to live a life after prison with many doors not open to a person like her, a convicted felon.

10. Yet, she persevered and did find lawful employment.

11. Further, Ms. J continued her rehabilitation and satisfied the requirements of the State of Florida and was able to have her civil rights restored on October 7, 2005.

12. In addition to working, Ms. J realized the value of obtaining more education.

13. In 2005, Ms. Johnson discovered something that she was very good at, to wit: getting an education. On December 21, 2005, Ms. J was recognized for earning a G.P.A. that exceeded 3.75 while enrolled as a student at Valencia Community College. Ms. Johnson was starting to realize that she was in control of her life and could be proud of her hard work and accomplishment.

14. To this end, Ms. J earned certifications in business in August of 2007 and August 2008.

15. Ms. J continued with her education an in December of 2008, Ms. Johnson earned an Associate of Science Degree in Business Finance.

16. Five months later, Ms. J earned her Associate of Science Degree in Paralegal Litigation.

17. In December of 2011, Ms. J was awarded a bachelor's degree in management graduating cum laude.

18. Ms. J was able to work and attend school while also tending to her disabled mother. Her mother was recognized to be disabled on August 1, 2010.

19. However, the most important achievement and proudest one that Ms. J wants this court to know about is the adoption of her daughter on June 21, 2010.

20. The rehabilitation that Ms. J demonstrated to the court and to the State of Florida earned her the ability to adopt her daughter.

21. As the court can see, Ms. J has lead two very different lives.

22. The issue presently before this court, is one of sentencing.

23. The court could incarcerate Ms. J for a period of up to five years in prison.

24. Ms. Jasks this court not to impose a term of incarceration for the following reasons.

25. The criminal conduct that Ms. J is guilty of is her first offense with the law since 2003. While it may seem unremarkable to state that a person has not violated the law in eight years, this court is asked to consider Ms. J's imperfect life and choices that she made prior to 2003. In the time span from 1991 until 2003, there was not year that she did not violate the law except for the time she was incarcerated in prison in 1995 for three years. Clearly, Ms. J is a changed person.

26. Ms. J expresses to this court her extreme sorrow for her actions, but offers to this court that the person who she was with allowed for her to relapse into a person that she does not want to be.

27. Ms. J openly acknowledges that she has made a terrible mistake that carries with significant potential for serious consequences that extend beyond herself.

28. Incarcerating Ms. J will have a profound impact upon her daughter who has already been abandoned by her biological mother and father. This child will once again be confronted with the possibility of foster care.

29. Incarcerating Ms. J will have a profound impact upon her ailing mother and will require government dollars to be further expended upon her to provide housing and care for her.

30. Finally, Ms. J has enrolled herself in a master's program at Strayer University and is set to begin this course of study.

31. A case that started out as a second degree misdemeanor should not end with a prison sentence. Warehousing Ms. J will not change what has happened, nor will it teach anybody any lessons that Ms. J has not previously been exposed to.

32. Ms. J had a lapse in judgment that placed her here before this court.

33. The appropriate sentence in this case should be a period of probation not to exceed two years with a special condition of community service. The probation is important because it will give this court the ability to watch over Ms. J and insure that this was aberrant behavior that is not reflective of her going back to her old life. The community service is the punishment that she expects to have to endure for making a poor decision.

34. Ms. J will never have the easy life. However, she does still have the opportunity to mother a child and help her not make the same poor choices that she has made in her life.

35. Ms. J is asking this court to take a chance on her because she has demonstrated that she was sincere about changing her life around.

WHEREFORE, it is prayed, that this court sentence Ms. J to an adjudication of guilt, two years of probation, one hundred hours of community service to be completed at a rate of not less than eight hours a month, cost of prosecution and court costs.

Respectfully submitted,

________________________________

Adam Pollack

Attorney for Defendant

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of this document has been furnished to the Office of the State Attorney, in open court by hand delivery this 11^th day of January, 2012.

________________________________

Adam Pollack, Esquire

Florida Bar No.: 0086142

Law Office of Adam L. Pollack, P.A.

5151 Adanson Street, Suite 100

Orlando, FL 32804

Phone: 407-834-5297

Fax: 407-834-1841

Email: adam.pollack@orl-law.com

The bottom line, is that if you need legal representation, you need to find a lawyer that will care about you and your case. You need to find a lawyer who will find the good in you and present that to the court. You need to find a lawyer like me because you can't pay for character, either a lawyer has the drive within himself/herself or they do not and no amount of money will purchase that drive. You deserve to have a lawyer who will care about you and your case. I look forward to representing you.

The Reality of Hazing in Florida

Adam Pollack — Wed, 07 Dec 2011 13:45:00 GMT

Arguably one of the funniest movies about fraternity membership in college is "National Lampoon's Animal House". This 1978 movie portrayed a story about fraternity life and the antics of its members. During one of the many funny scenes in the movie, actor Kevin Bacon is a pledge (a trial member of a fraternity attempting to "earn" membership") who is about to become a full fledged member of his fraternity. One of the last tasks that he has to endure is getting paddled. After each whack from the paddle, he tells his paddler "Thank you sir, may I have another." Clearly from his facial expressions and tone of voice, his character is not enjoying the experience and is in fact experiencing pain.

Is this hazing or just a group of young adults giving their consent to be paddled as a price to be paid for membership in an organization? Regardless of whether you believe this to be hazing or just college fun that builds bonds of friendship and evolves into good memories for the participants, Florida law provides guidance concerning this question.

The Florida legislature defines hazing as

any action or situation that recklessly or intentionally endangers the mental or physical health or safety of a student for purposes including, but not limited to, initiation or admission into or affiliation with any organization operating under the sanction of a postsecondary institution. "Hazing" includes, but is not limited to, pressuring or coercing the student into violating state or federal law, any brutality of a physical nature, such as whipping, beating, branding, exposure to the elements, forced consumption of any food, liquor, drug, or other substance, or other forced physical activity that could adversely affect the physical health or safety of the student, and also includes any activity that would subject the student to extreme mental stress, such as sleep deprivation, forced exclusion from social contact, forced conduct that could result in extreme embarrassment, or other forced activity that could adversely affect the mental health or dignity of the student.

Based on this very broad definition, clearly the antics of the fraternity in Animal House fell under the definition of hazing in Florida.

The penalties for hazing in Florida range from expulsion from school or other organizations up to and including being a convicted felon and serving up to five years in prison. In addition to these penalties, a person accused of hazing can also be charged for any other offense that constituted the offense of hazing. For example, in the paddling example, the person who hit the person with the paddle could also be charged with battery. In the event great bodily harm was caused, the felony of aggravated battery could be charged. In extreme cases where a person accidentally dies, a person could be charged with murder. Unlike our reaction to the funny antics in Animal House, this is no laughing matter.

Fast forward to today's news and we sadly see that hazing is not necessarily limited to just fraternity members. The sad reality is that hazing occurs in many different organizations. Case in point is the investigation that is currently being conducted in the wake of the death of Robert Champion, the drum major in FAMU's marching band. The investigation seems to indicate that hazing played a significant role in Mr. Champion's death. Four students have been expelled from school. The band is no longer performing and its band director has been fired.

Parents, I strongly encourage you to discuss with your son or daughter what hazing is and why it is wrong. Young adults do not always appreciate the consequences of their actions. A young person's perception of what is good clean fun can have unintended consequences socially, academically and criminally. Hazing occurs for man reasons. Peer pressure plays a significant role in why it occurs. I do not believe that any young man or woman wants to inflict pain and humiliation on people that they want to be friends with. However, the culture surrounding many organizations is very bi-polar. On the one hand many organizations have written policies stating that they are anti-hazing. The reality is that despite the written policies and the education that its membership receives, the unwritten rules regarding social attitudes about hazing suggest that it occurs frequently and to varying degrees among different types of organizations. As a member of a fraternity, I know first hand the pressures that exist within the membership to haze and the efforts to resist those temptations.

In the event that you or someone you know is facing accusations of hazing, it is extremely important that this young person seek my advices prior to discussing their case with officials from a school or the police. What a young person says to officials investigating allegations of hazing can greatly impact that young person's future. I can provide protection to a young person that is unique due to the nature of the attorney client relationship. No privilege exists for a parent child relationship. Parents or trusted friends naturally want to know what happened and often times insist on knowing from the accused. Despite great intentions, parents and trusted friends can inadvertently become witnesses against the very person that they are trying to help.

If you are a member of an organization that hazes, you should reconsider how important the organization is to you. If you are facing an accusation of hazing, please do yourself a favor and call me at 407-834-5297. I am an expert in the criminal trial process in Florida and my fifteen plus years of experience will be able to provide you with invaluable counsel.

DUIs and the Holidays..They Just Don't Mix

Adam Pollack — Tue, 06 Dec 2011 04:59:00 GMT

Recently, it was reported that former Miss USA Rima Fakih was arrested for a DUI in Michigan. Regardless of whether or not the allegations are true, this should serve as a reminder to everybody who drives that a DUI arrest can happen to you if you have consumed alcohol and chose to drive a car. Let me be clear, it is not illegal to drink and drive. It is illegal to operate a motor vehicle while under the influence of alcohol, or drugs, to the extent that it impairs your normal faculties to operate a car. In Florida, the legal limit for blood alcohol percentage is .08 percent. This means that a person should be extremely careful if they have consumed alcohol and then choose to drive themselves to another location.

When I was a much younger attorney, I was counseled by a wise judge that in his experience anybody could get charged with a DUI. He went on to explain that alcohol only was a significant problem if a person got a second or third arrest for DUI. In Florida, even one arrest can have a significant impact on a person's livelihood.

First time penalties for a DUI in Florida can include an adjudication of guilt, up to a year of probation, attendance at DUI counterattack school, attendance at victims awareness panels, completion of counseling for alcohol and/or drugs, loss of a drivers license for up to a year, a minimum fine of $500.00, impoundment of your car for ten days and court costs. The cost to a person is not only financial, but often times emotional. This is especially true for people who never envisioned themselves as "bad" people or as criminals. Yet, time after time, good people can and do get arrested for DUI. DUI is not conscious choice that people make similar to choosing to rob a bank. DUI, especially around the holidays, is a crime that happens because of poor planning or a person believing that they are not "drunk" and therefore able to drive a car.

When you get arrested for a DUI, you must seek out competent counsel to represent you because the aforementioned penalties can cause you great heartache as well as financial hardships. I have over fifteen years of representing people, like you, who may have had the misfortune of being arrested for a DUI. Many people wrongly believe that if they get arrested for this crime, then there is no hope of changing their lot in life. This simply is not true. A skilled attorney, such as myself, often times are able to see legal defenses that may not appear to exist to the untrained person. You owe it to yourself to call me at 407-834-5297 or email me at adam.pollack@orl-law.com for a free consultation. Finally, I wish you and your family a warm holiday season.

Child abuse investigations in Florida

Adam Pollack — Thu, 24 Nov 2011 02:59:00 GMT

By now, most people who keep up with either current events or sports have heard about the disturbing allegations against Penn State's former coach Jerry Sandusky. In case you have not, the allegations appear to be that the former coach had had sexually assaulted children. Not only is Mr. Sandusky facing criminal prosecution, but a number of Penn State employees are either facing criminal prosecution and/or disciplinary action. One of the vexing questions that people have asked is how did the actions of this coach go unreported for so long? This is especially troubling because supposedly, the graduate assistant/coach Mike McQueary had allegedly observed inappropriate conduct on the part of Mr. Sandusky and reported the observations to Head Coach Joe Paterno on March 2, 2002. On March 3, 2002, Mr. Paterno reports the incident to Penn State University officials. They have a meeting and nothing appears to have happened as a result of the meeting. Interestingly, no official police report is apparently made at the time of the allegations. Further, no report is made to any child protection officials. Fast forward to today and it is only after the alleged victims gain enough courage to make the allegations public does the case gain any traction.

Would this have been the same situation had this occurred at one of Florida's fine college football programs? Florida law provides guidance on this issue.

Florida Statute provides for mandatory reporting:

39.201. Mandatory reports of child abuse, abandonment, or neglect; mandatory reports of death; central abuse hotline

(1) (a) Any person who knows, or has reasonable cause to suspect, that a child is abused, abandoned, or neglected by a parent, legal custodian, caregiver, or other person responsible for the child's welfare, as defined in this chapter, or that a child is in need of supervision and care and has no parent, legal custodian, or responsible adult relative immediately known and available to provide supervision and care shall report such knowledge or suspicion to the department in the manner prescribed in subsection (2).

(b) Reporters in the following occupation categories are required to provide their names to the hotline staff:

1. Physician, osteopathic physician, medical examiner, chiropractic physician, nurse, or hospital personnel engaged in the admission, examination, care, or treatment of persons;

2. Health or mental health professional other than one listed in subparagraph 1.;

3. Practitioner who relies solely on spiritual means for healing;

4. School teacher or other school official or personnel;

5. Social worker, day care center worker, or other professional child care, foster care, residential, or institutional worker;

6. Law enforcement officer; or

7. Judge.

The names of reporters shall be entered into the record of the report, but shall be held confidential and exempt as provided in s. 39.202.

Under Florida law, any school official or personnel has a legal duty to report any observations that give rise to reasonable cause to suspect that a child has suffered from abuse. This would cover janitors, assistant coaches and officials within the university. The failure to report suspected abuse is a crime in Florida.

Florida law provides broad protection for people who in good faith make a report of suspected child abuse. In most instances their names are kept confidential. The bottom line, if you suspect that a child is being abused, please call the abuse hotline for your state. In Florida the telephone number is 1-800-962-2873.

If you are suspected of committing child abuse, it is very important that you contact an attorney immediately. The failure to contact an attorney can result in you being falsely accused of a very serious crime. If you are in that position do not hesitate to contact attorney Adam Pollack, an expert in representing criminal defendants. You owe it to yourself to have an expert on your side, after all the government uses experts, why should you not have one on your side? Call 407-834-5297 and get an expert to protect your legal rights.

Veterans Accused of Crimes Present Special Challenges

Adam Pollack — Sat, 12 Nov 2011 01:39:00 GMT

Today our country celebrated Veteran's Day. Our courts, banks and U.S. mail were closed but most other offices were open. Veteran's Day is not like Labor Day or Memorial Day. We, as a country, recognize the day but do not close down. In our capitalist society, I like to think that any day the Stock Market closes, then it must be a big deal. Too often our miitary veterans are not given the recognition that they deserve. Some of our veterans volunteered to serve, while others were drafted into service. Regardless, they did their duty and went into harms way to defend our way of life and the principles that we stand for as a country. One of those principles is the rule of law. I salute each veteran and their families for the sacrifices that they have made.

Representing a veteran presents unique challenges that all practitioners in the criminal defense area of law should be aware of. The veteran needs to be carefully questioned about their service and how it has affected them. While it is true that the military has made great strides in trying to recognize those veterans who suffer from PTSD and other mental health problems, we are still very far from completely resolving their unique issues.

The veteran who is accused of a crime should be treated as if their mental health condition may be an underlying factor in how they see their world and how they react to their world. At first blush, it may seem that a veteran is no different from any other person charged with a crime. In some respects this may be true. Especially if the veteran did not see combat or experience anything unusual during their service in the U.S. military. However, veterans who have experienced combat and or traumatic situations may suffer from underlying mental health condtions that can affect their culpability in a crime. Some crimes require a certain level of thought or planning (mens rea) while others do not. An example of a crime that ordinarily does not require a mens rea is DUI.

In the United States, it is illegal to operate a motor while under the influence of alcohol to the extent that a person's normal faculties are impaired. A veteran who can't control his drinking due to underlying psychological trauma or physical trauma may be successfully defended in an otherwise hopeless case. Even if the underlying crime cannot be defended, the impact of this evidence on a judge when it comes time for senteincing can be significant, especially when dealing with the client who has had more than one DUI.

Another area of concern for a Veteran is in the area of mitigation. In Florida, we use a sentencing guideline. This guideline attempts to achieve uniformity in sentencing. In an effort to keep the sentences uniform judges cannot generally deviate from a sentence that requires prison. The exception to this rule is if the judge finds that a person qualifies for a downward departure. There are several statutory reasons for a downward departure. One of the reasons is that a person suffers from a mental health condition that is unrelated to substance abuse and the defendant is amenable to treatment. This sounds easy enough to figure out, but the problem arises with the client who is addicted to drugs and commits a crime such as theft to support their drug habit.

The person who has the drug habit would not seem to qualify under the statute for a reduction in their sentence. However, if the evidence is such that the person has the addiction as a result of some other reason, then perhaps a skilled attorney can present drug addiction in a light that shifts the focus from the addiction to the underlying cause. This is not easy. However, for a veteran the attorney has a wealth of potential mitigatiing evidence to work with. The attorney can access the veteran's service record and medical records from the Veterans Administration. The bottom line, veterans need to be treated with extra care to make sure that they receive fair treatment from they government and set of laws that they were presumably sent off to defend.

Adam Pollack, an expert in criminal trial law, has the necessary experience to provide our veterans the unique care that their cases call for. If you are a veteran or know a veteran in need of legal help for a crime that he or she may be accused of, then call Adam Pollack at 407-834-5297 or email him at adam.pollack@orl-law.com.

Can a Courtroom Full of Police Officers Affect a Citizen's Right to a Fair Trial?

Adam Pollack — Fri, 04 Nov 2011 23:40:00 GMT

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 upto 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.

The Need for Competent Counsel

Adam Pollack — Mon, 31 Oct 2011 23:35:00 GMT

In a 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.

Right to Counsel

Adam Pollack — Fri, 28 Oct 2011 21:54:00 GMT

Many people have heard of their Miranda rights. Movies and television shows routinely tell us about these rights with the famous beginning line “You have the right to remain silent…”. Part of the Miranda rights also implicate your right to have a lawyer present prior to questioning and during questioning and if you cannot afford a lawyer then one could be appointed to represent you. The Sixth Amendment guarantees each person a right to counsel. A person’s access to an attorney during a criminal investigation is of tremendous importance, yet many people do not appreciate the power of having an attorney ready to protect you from the police.

I do not mean to imply that the police physically beat their suspects into giving confessions. Although, there are times when it may happen, I would suspect that they are not as frequent as you may suspect. The other type of coercion that an attorney can protect you from is the psychological coercion. The way a person is treated by the police often times can aid the police in getting YOU to talk about a criminal investigation that YOU are the target of. “Wait a second,” you say, “I know my rights.” While this may be true, knowing your rights and being able to exercise your rights are two very different issues.

I recently had the opportunity to represent a person who the police believe has committed a very serious crime. As luck would have it, this person came to my office hours before the police arrested this person. While at my office, I explained to this person that the police can and do employ many tactics of interrogation including lying and indirectly promising opportunities that simply do not exist. I also told my client the police do not ask you to come down to the police station to simply have a cup of coffee and a donut and shoot the breeze. Rather, if the police have enough evidence to arrest you, then they will do so. The only reason they want to talk to you and have you come down voluntarily to a police station is so they do not have to read to you your Miranda rights. I also told this person not to speak to anybody about their situation and that if they are arrested, to immediately inform the officer that they are represented by an attorney and here is his telephone number.

My client must have been listening to something that I said, because sure enough not even an hour later, I was being informed that my client was under arrest and that the police were alerting me to this fact. The reason the police were alerting me to this fact is because they wanted to gather more evidence against my client and have the client speak to them. Despite the fact that I was tired and would rather have spent the evening with my family, I got into my car and drove down to the police station where my client was being held. My client was reread Miranda warnings and they were quickly invoked by me. Despite my invocation of rights, the police continued to attempt to engage my client. First, they turned to my client and asked the client what the client wanted to do. Talk about insulting one’s intelligence. Here I was, an expert in criminal trial law, hearing the police disregard a clear invocation of legal rights by a client’s attorney and they had the audacity to turn to my client and ask the client what the client wanted to do. Fortunately, my client had enough sense to follow my directive and gave the police the answer that the client would follow the legal advice provided to the client.

Not to be discouraged by this, the police then attempted another tactic. The police dangled out in front of me the opportunity to “see” the evidence against my client. As tempting of an offer that this may have been, I knew that through the legal rules, I would get to see all of the evidence at some point in time. However, I played along. Once again, the police turned their attention to my client and proceeded to tell the client about how they talked to someone that the client supposedly knew very well. Once again, the police wanted my client to acknowledge the police statement as being accurate. I quickly advised my client not to answer any questions of the police. Well, that must have hurt someone’s feelings because the next thing I knew, the show and tell session was ended and all I got to see was one horrible picture.

On my way out of the police station, the detectives told me that this was a great opportunity for my client to set the record straight. Somehow I got the feeling that no matter what my client said, the police were not going to remove the handcuffs from my client and apologize for the client’s inconvenience no matter what the client said. As I walked to the car, I started to become aware of how stressful the situation was for me personally. I was not even the person who was subject to the criminal investigation and yet I was stressed. The point is, a person who is the subject of an investigation who does not know their legal rights, often times provides key evidence against themselves without even realizing it. Too many people believe that they can somehow talk their way out of the situation that they find themselves in. This simply cannot be accomplished because you are at a disadvantage. The police usually have more information than you do and know more about the case than you think they do. The old saying “Loose lips, sink ships,” is equally applicable to how you should deal with the police. If you find that you are the subject of criminal investigation, the best thing you can do is to clearly state that you want a lawyer present and that you are invoking your right to remain silent. Trust me, you will be under enough stress that anything you say will not set you free. Remember, police officers do not have the authority to make any deals with you and you need an attorney to protect your legal rights.

Hello World!!

Adam Pollack — Fri, 28 Oct 2011 03:43:00 GMT

Well, I have finally entered into the 21st century with this blog. I know, I am only 11 years late, but at least I finally made it. 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.

Welcome to our Criminal Defense Blog

Criminal Defense Attorney — Tue, 25 Oct 2011 17:20:00 GMT

We are pleased to announce the launch of our Criminal Defense Blog with an RSS feed available at /Blog/Entire-Blog-Feed/RSS.xml