An Era of Change at the State Attorney's Office of Orange/Osceola Counties?

If you don't live in Orange or Osceola County, then you probably didn't pay too much attention to the local election for State Attorney.  And if you live in one of those two counties, then there's still a decent chance you didn't pay much attention to that race.  However, as a criminal defense attorney and Central Florida resident, the race impacted not only my community as a citizen but also my livelihood.  Having practiced criminal defense for the last 5 years in the ninth judicial circuit (which is defined as Orange and Osceola counties), I've had plenty of experience dealign with the State Attorney's Office.  To be blunt: my opinion was not very high.  To be clear, there were plenty of upstanding, honorable and highly skilled prosecutors who zealously and passionately represented the best interest of the citizenry.  Some of them have left the SAO, and some have stayed to continue to "fight the good fight" even in trying times.

However, the State Attorney's Office had problems.  Big problems.  The kind that make you feel unsafe as a fellow citizen, and frustrated as a lawyer.  I'll address the more noticeable problems:

1) The abysmal low conviction rate at trial.  Now, the low conviction rate at trial was probably due to a multitude of factors.  One of the ones I read in the press from the incumbant State Attorney Lawson Lamar is that he enouraged his office to not just take the slam dunk cases to trial, but to also take "tough cases" to trial (you know, the ones without as much credible evidence).  Here's the problem with that logic: it opens up the very real likelihood that many of those "tough cases" are prosecutions of people who are not guilty of what they are accused of.  Now, I don't believe that every client who told me he/she didn't do it was actually innocent.  But I did truly 100% believe in the innocence of some of my clients who went to trial.  Mistaken suspect identification by witnesses is a reality.  It happens all the time, and we hear about people being released from Death Row who have been exonerated (proven innocent) after a wrongful conviction.  And in many of those cases, there was a faulty witness identification.  Also, not all people who claim to be victims are truly victims.  I hate to say this because the thought sickens me, but there are people in our community who lie to police and claim to be the victim of a crime when they are not victims. Some want attention, some have a motive, and some are just bad people.  But too often, the attitude at the State Attorneys Office wasn't to seek the truth, but rather to blindly assume the truth is whatever the complainant claims it is, despite the holes in the story.

The other complication is that the prosecutor's role is not to convict.  Rather, the role of the prosecutor is to seek justice.  Which means that, as a prosecutor, one should believe wholeheartedly that the defendant is guilty of the crime for which the defendant is being prosecuted.  If, during preparation for a rape trial, the prosecutor learns that the DNA recovered from the alleged victim does not match the defendant's DNA, then the case should be dropped, even if the alleged victim swears up and down that the defendant is the person who committed the crime.  And the case shouldn't just be dropped because it is unlikely the jury will convict, but because (more importantly) the prosecutor's duty to seek justice dictates that he/she should not prosecute someone who may very well be innocent.

In my opinion, Lawson Lamar's philosophy that his office should take "tough cases to trial" meant that in, in a lot of cases, innocent people were being prosecuted, prosecutors weren't looking at their evidence with a critical eye, and sometimes, justice was not being sought.

2) The disparity in salaries for employees, and having too many employees.  The SAO under Lawson Lamar had an incredibly large gap between it's managers, senior level assistant state attorneys, and new hires.  I'm not sure what the starting salary is for an assistant state attorney at present, but at one point I knew several assistant state attorneys who were making less than $40,000 annually.  Here's the problem: it is difficult to recruit and retain quality lawyers at that salary.  Particularly when increases in salary are few and far between promotions.  Even attorneys who have been at the SAO for nearly a decade and have been handling sex crimes for over 5 years are making less than $70,000.  What is that person's incentive to stay at their office after 5:00 PM to prepare for a triple homicide or come in on the weekend to prepare for a kidnapping/gang rape case?  The truth is that the SAO had a lot of lawyers who are just Monday through Friday 8:30-5:00 people who didn't deem it worth their while to work after hours.  Now, not everyone was like that.  I knew several prosecutors who worked hard during what should be their off-time so that they could be prepared for a particular hearing or trial.  But, in my opinion, they tended to be the exception to the rule.  And coming in during off time may not be necessary in a lot of jurisdictions, but Orange-Osceola counties are HUGE.  The number of cases in the criminal justice system in those counties is staggering and growing at a rate higher than any other county in Florida.  You cimply cannot be prepared and know everything about the cases in your caseload if you don't put in the extra time.

Now, one could argue that the fault lies in the budget, not the leadership at the SAO.  And to that, I would ask why certain attorneys at the SAO receive salaries in the triple figures if the budget is indeed so strapped?  Why are there multiple managers who earn over $100,000 while the public defender's office in that same circuit only has 1 employee who earns 6 figures (the public defender himself)?  And why are there so many non attorney employees at the SAO?  Besides the lawyers, the SAO also employs legal assistants (usually one per every 2 or 3 attorneys), victim advocates, and witness coordinators.  Perhaps getting rid of the witness coordinators would free up resources to give attorneys higher salaries?  But then *gasp* who will call the witnesses to tell them to be in court?  Hmm, how about the lawyer does that?  That would give the lawyer a chance to talk to the witness anyway, who they've probably never spoken to.  And that bring me to my third point...

3) Lack of accountability and lack of discretion.  The SAO has a division called Intake, whereby a dedicated group of assistant state attorneys review complaints and police affidavits and decide whether to formally file charges, and if so, what those charges should be.  These attorneys in the intake unit are not the attorneys who will handle the case after charges are filed.  Rather, the case is then reassigned to a prosecutor who works in front of the judge to whom the clerk has assigned the case.  Thus, the prosecutor handling the case and taking it to trial is usually not the prosecutor who actually decided what charges to file.  This is a big problem, because for that prosecutor to make any changes such as dropping the case or amending the charge, he/she must second guess the prosecutor who filed the charges in the first place.  Also, the prosecutor who filed the charges doesn't have to worry about "over charging" because he/she doesn't actually have to do anything else with the case such as selecting a jury, attending depositions, etc..  I actually spoke to an attorney who worked in the intake unit (interestingly, he was the State Attorney for Orange/Osceola before Lawson Lamar took over in 1988), and he told me that he regularly overcharges because he feels it gives the trial attorney some leverage for negotiation.  His point of view was so out of touch with the reality of what happened at the SAO.  Prosecutors rarely felt they had that kind of discretion.  A common theme was "I can't drop this charge because I'll get in trouble with my supervisor."  Now, maybe that's something they were all taught to say at their Orientation meeting at the State Attorney's Office, but it's ridiculous that a prosecutor shouldn't feel empowered to exercise their discretion given all of the facts and circumstances surrounding a particular case that he/she is handling.

4) Completely out of touch with the community.  The State Attorney's Office of the Ninth Judicial Circuit is supposed to represent the interests of the citizens of Florida, particularly the citizens of Orange and Osceola Counties.  While I was at the public defender's office in that circuit, our office constantly marched in local parades in the community such as the Martin Luther King parade that goes through Eatonville, or the Mental Health Awareness walk around Lake Lily in Maitland.  We volunteered to help veterans receive social services, help poor people obtain proper identification, participated in food and clothing drives, etc..  We were a visible presence in our community.  Because it's important to build that level of trust within your community.  However, that visibility was noticeably missing from the SAO.  It's not about fundraising in Winter Park, or just meeting with other politicians in Tallahassee.  It's about attending town hall meetings in communities where there's outrage over a police shooting, or discussing race relations in neighborhoods comprised of mostly minorities.  It's about letting your most down trodden know that you also represent them when you say you represent the people of Florida.  These are people who are not only victims of crime, but are also witnesses to crime.  Their's should be a voice that is heard.  But what else should be expected of a State Attorney who is not even visible to his employees, and doesn't set his foot into a courtroom?


Now, I know the State Attorney Elect Jeff Ashton worked most, if not his entire, career under Lawson Lamar.  So it suggests a complacency in that environment.  However, he has promised change, and I'm hopeful that justice will be served by the new SAO.  Because it has been heavily absent for quite some time.

Justice for Trayvon Martin...and George Zimmerman

By now, you've probably heard about as much of the Trayvon Martin case as you've heard of the Casey Anthony case.  I, like many others, reacted with anger and shock when I first heard about Trayvon Martin's death and the lack of an arrest.  A teenager from South Florida visiting his father in Sanford is shot and killed by a neighborhood watch patrolman who had called the police to report a suspicious person walking around the neighborhood complex.  The teenager was unarmed, carrying a bag of skittles and a beverage, and was sporting a hooded sweatshirt.  The neighboorhood watch patrolman was George Zimmerman, and he immediately claimed self defense as the reason he shot the unarmed teenager.  The police interviewed neighbors, interviewed Zimmerman, and chose to not arrest Zimmerman.  Oh, and the shooter is white, and the deceased is black.

My first instinct was to be angry: angry with George Zimmerman, angry with neighboors who did not intervene when there were audible cries for help, and angry with the police department for not making an arrest.  During my three years as an assistant public defender, I'd handled dozens of cases where my clients, who were often black and poor, had asserted self defense for their actions and had not been given the benefit of the doubt.  Instead, those clients were arrested by cops and told to "tell it to the judge".  My clients were charged by the State Attorney's Office in Orlando, and I often had to take their cases to trial and let a jury decide whether my clients were justified in their use of force.  I wondered: why should anyone else be treated differently from my clients?  Why should white people from middle class neighborhoods get the benefit of the doubt when the alleged victim is black?

As the days went by, and the media began to release more details about the case, such as 911 audio recordings and pictures of Zimmerman after the shooting, I started to set aside that initial feeling of anger. Zimmerman claimed that Martin was the first one to become physical, and that Martin had punched Zimmerman, causing him to be knocked back on the ground.  Zimmerman claimed that Martin then continued to beat Zimmerman's head against the pavement, and that no one responded when Zimmerman cried out for help.  Zimmerman has also stated he believed his life was in danger and that he then shot Martin in self defense.

I remembered that I'm a criminal defense attorney, and that I had completely prejudged George Zimmerman without all of the facts.  If Zimmerman was pursuing Martin and questioning why Martin was in the neighoborhood, even after a 911 operator told him to not follow Martin, it would not excuse Martin's alleged act of violence against Zimmerman.  If someone harrasses you verbally and follows you, the law does not necessarily allow you to respond with physical force.  And if I never intended to punch someone, and I found myself with my back on the ground and another person on top of me, hitting my head against the sidewalk without a seeming end, I'd probably start fearing for my life too.  And if I shouted for help and no one intervened, I'd probably start to think I'd have to save myself with force...even if that force was deadly.

A brief explanation of the law (which many media outlets seem to be getting wrong): in Florida, you are justified in using deadly force, without the duty to retreat, if you reasonably believe that such force is necessary to prevent imminent death or great bodily harm to yourself.  If you are in your home, it is presumed that you had a reasonable fear of imminent death or bodily harm.  Caselaw has established you did not have a duty to retreat first if you were in your home at the time of the unlawful force against you.  And the controversial Stand Your Ground law took away the duty to retreat when you were not in your home.

I'm not saying Zimmerman was correct.  What I am saying is that I was wrong to jump to conclusions without knowing everything.  And that I betrayed my philosophy as a defense attorney when I condemned George Zimmerman.  I focused on the wrong villain.  I shouldn't be angry with George Zimmerman because my own clients aren't given the benefit of the doubt.  My clients have been treated differently by law enforcement, and they were black, but that isn't George Zimmerman's fault.  My sense of Zimmerman's guilt or innocense should not be clouded by feelings of prior injustice against my former clients.

Justice for Tayvon...Justice for Zimmerman...Justice for All.

Guantanamo Bay: Where The Constitution Is Used For Toilet Paper

It's been 10 years since the United States begain harboring people suspected of terrorism or aiding terrorism at Gunatanamo Bay.  Since then, 779 prisoners have been held at Gitmo to date, with 171 currently remaining there.  Most have either been released without charge, transferred to another country's facility, or have died while at Gitmo (8 have died so far, 6 by suspected suicide and 1 of cancer).  And to dispel any notion that the Obama administration has resulted in most of the releases, there were only 242 prisoners in Guantanamo when Obama took office.

In the month of July of 2005 alone, under the Bush administration, 173 detainees were released without charge and 69 were transferred to governments of other countries.  Of the 171 detainees currently imprisoned at Guantanamo Bay, 89 men have been approved for transfer out of Gitmo unanimously by the military, law enforcement, and intelligence agencies whose opinion is relevant to those determinations.  However, no one has been transferred alive out of Gitmo in over a year, and neither the detaines, nor their attorneys, have been told by the U.S. government whether they are on the list of people approved for transfer.  Also of the detainees in Gitmo are 57 men who are from Yemen who are only being held because the US government does not want to release them back to the unstable country of Yemen (the infmaou shoe bomber who attempted to detonate an explosive on a flight to Detroit a few years ago was from Yemen).

I bring this up now because today marks the 10th anniversary of the day the first 20 detainees arrived at Guantanamo Bay and were held in outdoor cages that looked like dog kennels.  We saw their images in reddish orange jumpsuits on television and our media blasted them as dangerous terrorists who deserved to be treated worse than dogs.  Talking heads criticized human rights groups who demanded the detainees be provided with some sort of due process of law.  Politicians supported the torture (yes, it has been acknowledged by U.S. officials that detainees have been submitted to brutal interrogations involving stress positions, barking dogs, and sleep deprivation, and water boarding has been confirmed to have occurred to at least some detainees though it may have been prior to arrival at Guantanamo).

Lawyers came to the defense of those detained without any rights.  The U.S. government argued that the evidence used to detain the prisoners was classified and therefore the attorneys were not entitled to look at it.  Once judges began issue orders allowing defense attorneys to see some of the evidence used against their client, huge gaping holes were exposed.  Defense attorneys exploited evidence as fabricated, false, an often corrupt, some even finding exonerating proof.

People stripped of any rights and dignity and robbed from their lives: 779
People who have been released without charges after being held for years: 600
People cleared for transfer but still being held, some held for nearly a decade: 89
Children under 18 who have been held at Guantanamo: 15
People died in custody: 8
People convicted of any crime after trial or plea bargain: 6
People facing any formal charge who are still being held at Gitmo: 1

So, looking at the numbers, we now know that the vast majority of people detained at Gitmo have already been deemed to not be a threat to America and have no terrorist ties.  Knowing this, I'd like to paste a quote from a FBI agent that was originally posted in a 2005 article of the New York Times: "On a couple of occasions, I entered interview rooms to find a detainee chained hand and foot in a fetal position to the floor, with no chair, food or water. Most times they had urinated or defecated on themselves and had been left there for 18, 24 hours or more."  We now know that this sort of thing happened to innocent people.  And, according to an affidavit by Col. Lawrence Wilkerson, a former aid to Secretary of State Colin Powell, top U.S. officials knew that the majority of detainees initially sent to Guantanamo Bay were probably innocent but kept them their for political reasons.  


How did we as an American society allow for so many innocent people to be locked up in secrecy in an offshore prison for so many years without any trial, formal charge, or credible evidence?  How have we justified it as long as we have?  How do we not care that many of these "enemy combatants" weren't captured on the battlefield, but were sold to the U.S. government by corrupt law enforcement in foreign countries who couldn't wait to collect a bounty for "anyone known to be a member of Al-Qaeda or support terrorism"?

And how have we now allowed for this to happen to our very own citizens here in the United States?  Don't think this could happen to you?  Read the National Defense Authorization Act that was signed into law by Preseident Obama on New Year's Eve.  That's right, if a U.S. citizen is suspected of terrorism here in thos country, you can be arrested and detained indefinitely without trial.

Better lock your door.  The nightmare that has been Guantanamo Bay for 779 detainees (not to mention their family members who must live without knowing their loved one's fate), could be your nightmare.

Better have a criminal defense attorney on speed dial, and you better lock your door from your government.