Incompetence, Mental Health, and the Criminal Justice System

Everyday mental health is becoming an area of increased awareness in our society.  Florida’s criminal justice system has a procedure to deal with those suspected of being so mentally ill that they are incompetent to be prosecuted, but does this procedure, which has essentially remained unchanged for the past decade, adequately address the varying aspects of mental health deficiencies as we understand them today?

Under Rule 3.211, Florida Rules of Criminal Procedure, one can only be deemed “incompetent to proceed” if a Defendant displays certain characteristics that indicate that a defendant may not be mentally stable or is unable to understand either the nature of the charges against him or the basics of the adversarial legal process, then a defendant may enter a suggestion of incompetency and ask the court to appoint an expert to evaluate the defendant and ensure that he is not mentally defective.

“Incompetent to proceed” does not simply mean that a person is completely unable to function.  Rather, it means that an individual is not capable, by reason of a mental defect, to understand and appreciate the nature of the charges against him or her or cannot meaningfully participate in his or her own defense.  Rule 3.210 of the Florida Rules of Criminal Procedure outlines the process by which an attorney may ask the court to determine the competency of a defendant.

Needless to say, it’s quite a process.  Experts are brought in, judicial findings are made, and even though a person is deemed incompetent by a court does not necessarily mean that they will not face prosecution for a crime.  It’s a complicated procedure.  Don’t allow yourself or a loved one to face it alone.  Visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

~Robert Shafer

The Law of Possession

In a recent opinion vacating a Hillsborough County conviction for drug trafficking and possession of marijuana, the Second District Court of Appeals eloquently detailed the law of possession and found the State’s evidence lacking.  Bennett v. State, Case No. 2D09-940 (Decided November 5, 2010).

There are two types of possession in Florida: actual possession (it’s on your person) and constructive possession (it’s close enough to you that you can control it).  When the State attempts prosecute you for constructive possession of drugs, it must prove two things: awareness of the contraband and the ability to control it.  For years, the State has been able to prove this second element with circumstantial evidence, including the presence of personal items (like identification) near the contraband.  In Bennett v. State, the Second District held that the mere presence of an ID near drugs is insufficient to establish knowledge, dominion, and control.  While this is not a novel concept in Florida’s jurisprudence, the Court’s explanation of the law regarding possession boils down to a simple principle: to prove constructive possession, the State must show “a conscious and substantial possession by the accused, as distinguished from a mere involuntary or superficial possession.”

If you are facing prosecution for a crime of possession, don’t face it alone.  Visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

~Robert Shafer

Victory in DUI trial

Trials are a very important part of representation.  Whether you are facing a misdemeanor DUI or felony drug, weapon, or white collar charges, having the right trial lawyer by your side can be the difference between jail or freedom.

We recently went to trial in a case where our client was charged with Driving Under the Influence.  Without violating the attorney-client privilege, I will only say that at first glance, the charges against my client were serious and there was a lot of evidence against him.  We spent weeks in preparation and sifted through the testimony of every witness, expert, and officer.  The trial lasted nearly seven hours, and after two and a half hours of deliberation, the jury returned a verdict of not guilty on all counts.  My client was not even found guilty of speeding, the reason he was pulled over in the first place.

I say that to only say that when you are charged with a crime, the government will throw everything they have at you.  Even though Florida’s budget is stressed more now than at any point in history, our State Attorney continues to feel the need to exhaust Florida’s resources by taking as many cases to trial as possible. Being a former prosecutor, I know that each trial costs the taxpayers an exorbitant amount of money.  Paying for jurors to be brought in, expert witnesses for the State, courtroom personnel, after-hours staff, even keeping the lights and air conditioning on when jury deliberations go well into the night: all of these things cost you. Greatly.  At my firm, we often try to resolve cases without a trial, in the hope that we can convince a prosecutor to drop charges or a judge to throw out the case.  However, there are times that prosecutors feel the need to make a statement and try even the most frivolous of cases, despite strained budgets.

That’s fine for us, we’ll be ready.  If you are facing a trial in a criminal case, you need an experienced criminal trial attorney at your side.  At my firm, we only do criminal defense.  Visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

Regards,

Robert Shafer

Police-created Crimes

A man goes to cash a large check he received from his recently deceased father’s estate. When he arrives at the bank, the cashier thinks the check is suspicious because it is so large and calls the police. The police arrive and take the check from him and tell him they will return when they have verified it. The man attempts to grab the check from the officer and is charged with resisting with violence and battery on a law enforcement officer. The officer later asks a judge to sentence him to ten years in prison.

Two undercover officers approach an addict and tell her they will give her some crack if she goes an buys a large quantity of crack for them. Despite her misgivings, she agrees. She returns with the drugs and is arrested for a second degree felony, punishable by up to fifteen years.

An older man is walking through a park. Another man approaches him and propositions him for oral sex. The older man reluctantly agrees, only to be immediately arrested for solicitation of a lewd act.

A young man who has never been arrested before receives a call from a friend of a friend who is asking for a large amount of ecstasy. The young man has a job and is going to school and has never sold drugs before. He politely declines, only to be called again a few days later by the same “friend” for the same purpose. He refuses. Over the next two weeks, he is bombarded by text messages and voicemails claiming that the “friend” knows he sells “X” and that he is holding out on him. Finally, the young man gives in and makes some calls. When the young man goes to pick up the money from the “friend,” the “friend” shoots him in the neck and paralyzes him from the neck down. Permanently. Later, the “friend” would reveal that he was actually and undercover narcotics officer and claim that the young man pulled a gun on him. The young man’s family is confused, as no one in the family has ever owned a gun.

All of these are criminal defense cases I have encountered over the years. And all of them have one thing in common: they would not have happened but for the police.

Police exist to prevent crime, pursue criminals, and protect civilians. Police should not, under any circumstances, create crimes. It’s immoral. It’s unethical. I would even say that it is evil.

In my years as a criminal defense attorney, I have seen hundreds, if not thousands of police-created crimes. In fact, police created crimes are the majority of drug cases I defend. You may be asking “Is there no recourse?” “Isn’t this entrapment?” “Shouldn’t police be arrested for the crimes they commit too?”

My friend, I have been asking these same questions for decades. Unfortunately, the United States Supreme Court has spoken on the issue of entrapment. The Court places the burden on the entrapped to prove their innocence, and if there is any indication that the crime would have happened regardless of the police’s involvement, the defense fails. This means that the government can dig up prior convictions and establish that the person has a “tendency” to engage in criminal behavior, and therefore would have committed this crime anyways.

Regardless of the many moral qualms surrounding police-created crime, it remains a staple in many law enforcement agencies. It is glamorized in movies and TV shows as righteous undercover work, with nary a mention of its often unsuspecting victims. It needs to stop.

If you are facing prosecution for a police-created crime, visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

Regards,

Robert Shafer

Contempt

Judges have the unique power to put people in jail for misconduct in courtrooms. It’s called contempt, and without a lawyer you can find yourself facing a judge who is acting as prosecutor, jury, and executioner. As anyone who has been held in contempt can tell you, this is not a good position to be in.

A judge can hold a person in contempt for many things: speaking out of turn in the courtroom, being disrespectful when asked a question, and refusing to comply with a judge’s request. All of these things can lead to open contempt hearings – and all of these things can lead to you being jailed for months at a time.

In Florida, contempt is defined as any refusal to obey a legal order or any conduct which prevents the court from conducting its business. As straightforward as that may sound, it can often be interpreted as punishing outbursts in court after harsh sentences. Many times I have seen it used to punish belligerence from a defendant during a disputed case. In giving the judiciary this power, the legislature’s goal was to give judges absolute authority over their courtrooms. And it worked.

However, people unfamiliar with the criminal justice system, particularly in hotly contested proceedings, can find themselves running afoul of a judge’s idiosyncracies. This is why self-representation is so dangerous. While a person has a constitutional right to represent themselves in court, that same person also has a constitutional right to an attorney.

If you are facing a criminal case, your freedom is at stake – in more ways than you know. The government will have an attorney there, working for the State’s interests. You should have one too. If you need representation in any criminal matter, visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

Regards,

Robert Shafer

Preferential Treatment of Law Enforcement in the Criminal Justice System

Today a Jacksonville Sheriff’s Officer who killed a civilian in the line of duty pled no contest to that crime. He did so as part of a plea bargain with the State Attorney’s Office. Officer Marcus Kilpatrick was chasing a person he allegedly suspected of having dark window tint at a high rate of speed without his lights or sirens on when he struck and killed an 86-year-old man. He initially lied and said that his lights and sirens were activated, even though civilian witnesses later proved that he didn’t.

Was he charged with vehicular homicide?

Was he charged with obstructing justice or making a false police report?

Was he sentenced to jail?

Was he required to pay restitution?

The answer to all of these questions is NO. He was charged with misdemeanor culpable negligence, and placed on probation. He was allowed to plea no contest, meaning that he neither disputed nor admitted the allegations. He was ordered to perform 100 hours of community service. And that’s it.

The outcome to this case saddened many, but surprised few. Many long-time residents of Jacksonville have noticed a very disturbing trend: Those who work for the Jacksonville Sheriff’s Office are no longer held accountable for their actions. Police shootings over the past few years have risen dramatically, with constant news coverage and nationwide attention. Does anyone ever recall a time when an officer was found to be at fault in any of these shootings? I don’t. The Jacksonville Sheriff claims to be policing his own with boards made up of other officers, but if there is any sort of disciplinary action, it rarely makes it to the public.

Some believe that law enforcement officers should be held to the same standard as every one else. I disagree. They should be held to a higher standard. I believe that because they wield so much power, they should bear the additional risk of harsher penalties should they abuse that power in any way. Regardless of how you feel about Officer Kilpatrick’s case, one cannot claim that he did not, at the very least, act irresponsibly. Were you or I to act in such a manner, I guarantee you we would be facing years in prison and a felony conviction. He does not. Why?

If you need representation on a criminal matter, visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

Regards,

Robert Shafer

Injunctions

Sometimes people need a restraining order.

In Florida, a restraining order is commonly called an “injunction.” An injunction is simply a legal term for a court order that either forbids you from doing something or that forces you to do something. Sometimes these injunctions provide much needed protection from dangerous people, but sometimes they can be used as vindictive tools to further another person’s agenda.

For example, there have been times that I represented young women who were frightened because their ex-boyfriend or ex-husband would not leave them alone. And by this, I mean that their conduct rose to a level that normal people wouldn’t feel comfortable with, like hanging around the outside of her residence at night, uninvited, or sending threatening texts or emails.

When relationships deteriorate to this point, an injunction can be a useful way of putting needed space between two people. I have also represented people in the opposite situation. Sometimes people use injunctions to further their own agendas in divorce proceedings or custody battles. Sometimes people use injunctions for revenge. The point is that the injunction process can be abused. When that happens, you need an experienced attorney in the courtroom fighting for your interests.

Injunctions can be issued upon a showing of a credible threat to one’s person or property. All testimony in injunction hearings is under oath, meaning that a lie may result in being held in contempt of court or perjury charges. Most importantly, violating an injunction is a first degree misdemeanor that can be punished by up to a year in jail. There can be a lot at stake in these types of proceedings. Don’t face it alone. Call me at (904)350-9333 for a free consultation.

Regards,

Robert Shafer

Forfeitures

I’ve heard the story more times than I can count: I was pulled over for something trivial. Next thing I knew police were searching my vehicle and asking my why I had so much money in my purse, or so much cash in my pants pocket, or in my deposit bag. They took my money and told me it was being seized – what do I do now?

It sounds like something from a television show about corrupt police, but the simple fact is that Florida law allows law enforcement officers to seize money if they believe that it has been or is about to be used in a crime. Sounds strange, doesn’t it? The police can actually take your money if they think you are about to commit a crime that hasn’t even happened yet.

You are not without recourse. The law also provides tools for you to fight a forfeiture of your money or possessions. When an officer takes your property, they must justify that action before a judge within a certain time frame. If the judge finds the taking was unjustified, you get your property back. If the judge does find that it was justified, you still have the right to have the matter decided by a jury of your peers.

There are a multitude of ways to attack the legality of a forfeiture. I have spent many years focusing on this area of the law, and have handled countless cases where a judge or jury found the actions of law enforcement to be unwarranted. Many people feel powerless when law enforcement infringes on their rights. Even though you may have been mistreated, you don’t have to lose what is rightfully yours.

If you are the victim of a civil forfeiture, please call us at (904)350-9333 or visit our website at www.shafercriminallaw.com Use our expertise to fight for your rights.

Regards,

Robert Shafer, Esq.

Miranda rights & DUIs

In 1966 the United States Supreme Court decided the landmark case of Miranda v. Arizona and instituted what are commonly called miranda rights. Miranda rights have become famous through their frequent and required use in everyday law enforcement, and are often used in TV shows that portray criminal arrests. The notion is simple: if you are not free to leave an officer’s presence, you are in custody. If you are in custody, you must be told that you do not have to say anything that might be used against you. It seems simple enough, yet a loophole Florida law strips this principle of its power during DUI investigations.

Florida’s Third District Court of Appeal has decided that miranda warnings are not necessary when a citizen is pulled over and subjected to a DUI investigation. How can this be? Is the driver free to walk or drive away from the officer? Absolutely not. The judges in the Third District have diminished the power of Miranda v. Arizona by holding that it does not apply to “routine traffic stops.” State v. Alvarez, 776 So. 2d 1060 (Fla. 3d DCA 2001). This holding is both dangerous and violates your Fifth Amendment right to remain silent.

I have represented many clients who have been effected by this decision. When drivers are pulled over at a late hour, they are often immediately asked if they have been drinking. They are not free to leave and are being asked incriminating questions. This is the very scenario which Miranda v. Arizona is meant to apply to. Yet in Florida, an officer is not required to tell a DUI suspect that they have a right to remain silent and that they do not have to answer their questions.

Remember, if you are pulled over, you have a right to remain silent. You do not have to answer any questions. If you have been arrested, call us at (904)350-9333 for a free consultation.

Driving Under the Influence

Happy hour. Two for one specials. Ladies’ night. Drink specials. Having a social life in a spread out city like Jacksonville, one can find ones self in the situation of drinking one too many and then trying to get home in a city with few cabs and no public transportation to speak of. Welcome to Jacksonville, and if you think the Jacksonville Sheriffs Office isn’t lying in wait for you to go 3 miles per hour over the speed limit or swerve slightly within your lane, think again.

In fact, the Jacksonville Sheriff’s Office has an entire task force of patrol officers who focus on Driving Under the Influence. They are responsible for the majority of DUI arrests in Duval County. The Clay and Nassau County Sheriff’s Offices have similar task forces. These officers are typically trained and determined to spot even the slightest hint of “impaired” driving, so that they can effectuate a traffic stop.

The uniformity of these cases is remarkable. Often times I meet with new clients who tell me the same story: “I was out having a good time, I had a few drinks and drove home. I thought I was ok to drive. I was pulled over for something trivial and the next thing I knew there were numerous cop cars all around and an officer was shining a light in my eyes, asking me if I would do field sobriety exercises and telling me that if I didn’t, he would have to ‘make his decision’ based on what he saw. Next thing I knew, I was in handcuffs and then, about two hours later, they decided to let me give a breath sample.”

This situation leads to many people who have never been in trouble being arrested for a criminal offense. I find it ironic that Law Enforcement only provides you with the opportunity to provide a breath sample after you have been arrested. If you blow below a .08, do they let you go? No. Law Enforcement will never reward you for blowing under the legal limit, but they will punish you for not providing a breath sample. Severely. Refusing to provide a breath sample automatically suspends your license for a year if it’s your first refusal, and if you refuse to provide a breath sample twice, you can be prosecuted for that refusal.

DUI investigations are very complicated, and officers can only begin a proper investigation if certain legal standards are met. Additionally, they can only request that you perform field sobriety exercises if they observe very specific indicators of impairment. Most importantly, every DUI arrest must be supported by probable cause. If an arrest is not supported by probable cause, a judge may exclude evidence gathered in your case, increasing your chances of an acquittal.

At Shafer & Associates, we have been handling DUIs and traffic offenses for over 20 years. I have seen the evolution of drunk driving law over this time, and I can tell you that where people used to only receive a fine and a night in jail, they are now faced with harsh mandatory minimum sentences that can consume years of your life and thousands of your dollars. Don’t face this situation alone: you need experienced legal counsel who can guide you through this process and raise any defenses you may have.

Come see us for a free consultation or visit our website at www.shafercriminallaw.com to learn more about our DUI defense practice.

Regards,

Robert Shafer