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Mayor Jacobs backs home confinement review findings


Mayor Teresa Jacobs said Tuesday she agreed with an outside consultant’s final report that outlined problems and changes needed in the suspended Orange County home-confinement program.

The Matrix final report said the pre-trial release should be revived with better training and technology for those running it, and stricter tracking and screening of those who can take part in it.

“That report is just right on,” Jacobs said Tuesday. “We will never have a home confinement program of the nature that we had in the past as long as I’m mayor.”

The outside study was approved this spring, soon after the Orlando Sentinel disclosed that Bessman Okafor, a suspect in a May 2012 home invasion, had potentially violated the terms of his home confinement more than 100 times.

Okafor’s violation alerts had gone unreported to the judge in his case, and on one unauthorized outing, police say, he shot and killed 19-year-old Alex Zaldivar, who was scheduled to testify against him in a home-invasion trial.



The Matrix report is the latest in a series of official responses to the Okafor debacle. The review, for which the county paid $100,000, concluded that a home-confinement program could work well in Orange County if it were “designed with fewer alleged offenders assigned, fewer assignees who are more likely to violate,” and were equipped “with improved and more credible technology” that was more actively supervised.

Jacobs said that certain dangerous defendants who were once eligible for release should not be, and the tracking technology needs to be upgraded.

“Had [those changes] been in place, I do not believe we would have seen what we’ve seen,” Jacobs said.

The mayor said she expected for local judges to buy into the changes, but had no time line for when the program could be revived.

“I think there is going to be a great deal of support for working together on this.”

5:09 p.m. EDT, August 6, 2013 Orlando Sentinel




Orlando Sentinel Interview with Blair Jackson


GPS monitoring, home confinement overused, lawyer says

May 25, 2013

As a veteran defense attorney with an eye toward academia, Blair Jackson says he began to notice at routine bond hearings that judges often seemed to send his clients to GPS monitoring or home confinement “for no reason whatsoever.”

“The judges would just say, ‘Well, I’d feel more comfortable if this person was on GPS,’ or ‘I’d feel more comfortable if they were on home confinement,’” he recalls.

Jackson began researching what became a 2011 article in the Faulkner Law Review titled “Shackles Before Sentencing,” which reported that judges often make GPS decisions without a “fixed set of guidelines,” resulting in decisions that are “personal and arbitrary.”

“I don’t blame the judges … because you’re going to go on your gut reaction if you don’t have the criteria laid out for you,” Jackson said. He argues states should pass legislation specifying who should be on electronic monitoring — and who shouldn’t — and how it should be run.

In Florida, the use of pretrial electronic monitoring is a grab -bag of techniques and technologies.

Perhaps nowhere was that truer than in Orange County, where two separate programs — a privately run GPS system and the county-run radio-frequency home-confinement program — monitored defendants independently until the current controversy surfaced.

“There’s no reason to have both a home-confinement program and a GPS program,” Jackson said, because GPS technology can also be used for house arrest.

Jeff Weiner




Past Case Results…


November 15, 2012 Jury Trial: Defendant was charged with Traveling to Meet a Minor, Solicitation of a Minor via Computer, and Attempted Lewd and Lascivious Battery. Found NOT GUILTY on Counts 2 and 3; the Court GRANTED a Judgment of Acquittal on Count 1.
September 5, 2012 Jury Trial: Defendant was charged with Traveling to Meet a Minor, Solicitation of a Minor via Computer, and Attempted Lewd and Lascivious Battery. The Court GRANTED Judgment of Acquittal on all Counts.



“Shackles Before Sentencing: The Global Positioning System as a Means of Pretrial Restraint”


Blair T. Jackson

(Faulkner Law Review, Fall 2011)

                What do famous Hollywood starlets Lindsay Lohan and Paris Hilton have in common with thousands of other Americans?  Both have been subject to electronic monitoring via the Global Positioning System.  Global Positioning Systems have become indispensable tools aiding drivers of automobiles to safely and efficiently reach their destinations.   Global Positioning Systems are also being utilized with greater frequency in our nation’s criminal justice system.  One notable use of a Global Positioning System is to gather information about a suspect in a criminal case, which has recently been examined in State v. Jones.  Additionally, Global Positioning Systems are used routinely by our courts to monitor the travel of criminal defendants once they have been charged with a crime and, in some circumstances, as a condition of a sentence.

                This article discusses the use of a Global Positioning System as both a supplement or, in some cases, substitute for standard bond conditions in criminal cases.  Its technology offers obvious benefits to courts seeking to keep the criminal defendant away from a victim and to keep close tabs on a defendant’s whereabouts.  Given the heightened level of intrusion that exists when an electronic device is attached to an individual, do our courts have carefully drafted guidelines that must be established before such a device may be implemented?

                This article explores this question by looking at criteria (or the lack thereof) utilized by courts in Alabama, Oklahoma and Arizona to examine whether the individual’s constitutional rights are being appropriately safeguarded when Global Positioning System monitoring becomes an issue in the pretrial phase of a criminal proceeding.  The article concludes that most states have little to no legislation that might guide a court when determining when a Global Positioning System should be appropriately applied, and suggests specific requirements that would at least be somewhat analogous to conditions of bond in a criminal case.




“The Supreme Court Rules on Warrantless GPS Tracking”


The U.S. Constitution protects people from unreasonable government searches, but does it prohibit the government from using GPS technology, without a warrant, to track people’s movements? We are reminded that police officers must get a search warrant to protect against claims of unreasonable searches that would invalidate any evidence collected. Last month the Supreme Court addressed the topic of warrantless GPS tracking.

In 2004, Antoine Jones, a Washington, D.C. nightclub operator, came under suspicion for trafficking narcotics. Without a valid warrant, the U.S. government installed a GPS-tracking device to the underside of his vehicle while the car was parked on the street outside his house, and then during a four-week period, authorities compiled more than 2,000 pages of location data. This information was used at trial as evidence to convict Jones, who appealed the case all the way to the Supreme Court.

Can the government, indeed, attach a GPS-tracking device to a person’s car without first getting a warrant? The Court unanimously said no. However, the reasoning behind the decision raises some concerns about how the government might use GPS technology in the future to pry into the privacy of its people.

There are two parts to the Constitutional prohibition against government unreasonable searches. The first prevents the government from physically intruding into constitutionally protected areas, like a person’s house, to obtain information. The second protects people’s “reasonable expectation of privacy.”

The opinion of the court was split between the majority opinion (five judges), and a minority concurring opinion (four judges). The majority opinion said that because the government had physically attached the device to Jones’ car outside his house (and not, for example, in an open field), it constituted an unreasonable search.

The concurring opinion said that because the GPS device was small and did not interfere with the operation of the vehicle, it did not constitute a search. Yet, Jones’ reasonable expectation of privacy was violated because four weeks of GPS tracking was too long. The concurring opinion said that a short intrusion into a person’s privacy is to be expected because the price people pay for advancements in technology is a diminished privacy right. Here, said the concurring opinion, the government monitored a bit too long and therefore it constituted a search requiring a warrant.

Here is where the dangerous proposition lies. Implicit in the opinion are two ideas. One, that perhaps the government can attach a GPS device to a person’s vehicle away from his/her house without a warrant; and second, that perhaps the government can perform the tracking for a shorter period of time without a warrant.

We know the time is coming when all new cars will be equipped with GPS devices — allegedly to assist in the recovery of stolen vehicles and in emergency situations. Furthermore, carrying a mobile device outfitted with a GPS is all the more common. Have we traded our reasonable expectation of privacy for these technological advances? With the precision of GPS location data, a great deal about a person’s life can be determined. The car we drive also goes to the doctor, the motel room, the nightclub and the union meeting.

The Court’s decision applies to this one set of facts and it sets a precedent, but it creates more uncertainty than it settles. It may be that this 9-0 decision will be sufficient to deter warrantless GPS tracking of any kind; or perhaps it left the door open for more government surveillance. The answer might be for citizens to pressure Congress to set clear privacy boundaries by way of legislation specifically limiting government GPS tracking, and other similar technology-aided searches, without a warrant.

While the current scenario is far from what we might see in a chapter from George Orwell’s 1984, the demise of liberty begins with the toleration of government intrusion just one bit at a time. Some might argue that a person’s public movements are fair for anyone to observe. However, when it reaches the level of precision that satellite GPS location data offers, it must be deemed a definite intrusion into a person’s personal privacy.

 

http://www.satellitetoday.com/via/satellitepolicies/U-S-Supreme-Court-Rules-on-Warrantless-GPS-Tracking_38522.html




“Federal judge rules Florida’s drug law unconstitutional”


By Susan Spencer-Wendel Palm Beach Post Staff Writer

 

Thursday, July 28, 2011 

A federal judge has declared Florida’s drug statute unconstitutional on grounds that it does not require criminal intent be proven by prosecutors. If upheld on appeal, the decision has the potential to place in jeopardy hundreds, and possibly thousands, of drug convictions.

U.S. District Judge Mary S. Scriven of Orlando noted in an order issued Wednesday, that Florida is the only state to eliminate criminal intent as an element of the crime in its Comprehensive Drug Abuse Prevention and Control Act. Legislators excised it in 2002.

Scriven cited the example of a student who hides his cocaine in a friend’s backpack without telling him. The friend, having no idea it is there, is guilty of possession even if he had no intent to possess it or didn’t know it was there.

Elimination of the intent element is “atavistic and repugnant to the common law,” Scriven wrote.

Scriven bristled at prosecutors’ arguments that the friend could raise his lack of knowledge as a defense. The state is “hoisted on its own petard” by making that argument, she wrote.

Former Statewide Prosecutor Bill Shepherd, now in private practice, called the ruling a “huge deal” and “important issue.”

Shepherd, who serves on national legal councils, said comments streaming in from prosecutors and defense attorneys from around the country praised the ruling.

But its impact on past convictions and people now charged under the law won’t be clear until an appellate court weighs in, he said.

The National Association of Criminal Defense Lawyers, the American Civil Liberties Union and dozens of law professors filed briefs in the case. Word of the ruling lit up defense attorney listservs around the state.

Nellie King, president of the Florida Association of Criminal Defense Lawyers, described the ruling as “courageous” and its implications as “monumental.”

“What is surprising is the government’s belief that stripping the intent requirement from the drug statutes was lawful from the start,” she said.

“The legislature’s decision to deny its citizens the benefit of core constitutional principles, including the “due process” requirement of the 14th Amendment, is alarming and arrogant,” King said. “Judge Scriven’s ruling simply renews the mandates inherent in the Constitution which our legislature opted to ignore.”

The state is expected to appeal Scriven’s ruling.




“Sentencing Shift Gives New Leverage to Prosecutors”


GAINESVILLE, Fla. — After decades of new laws to toughen sentencing for criminals, prosecutors have gained greater leverage to extract guilty pleas from defendants and reduce the number of cases that go to trial, often by using the threat of more serious charges with mandatory sentences or other harsher penalties.

Some experts say the process has become coercive in many state and federal jurisdictions, forcing defendants to weigh their options based on the relative risks of facing a judge and jury rather than simple matters of guilt or innocence. In effect, prosecutors are giving defendants more reasons to avoid having their day in court.

“We now have an incredible concentration of power in the hands of prosecutors,” said Richard E. Myers II, a former assistant United States attorney who is now an associate professor of law at the University of North Carolina. He said that so much influence now resides with prosecutors that “in the wrong hands, the criminal justice system can be held hostage.”

One crucial, if unheralded, effect of this shift is now coming into sharper view, according to academics who study the issue. Growing prosecutorial power is a significant reason that the percentage of felony cases that go to trial has dropped sharply in many places.

Plea bargains have been common for more than a century, but lately they have begun to put the trial system out of business in some courtrooms. By one count, fewer than one in 40 felony cases now make it to trial, according to data from nine states that have published such records since the 1970s, when the ratio was about one in 12. The decline has been even steeper in federal district courts.

Cases like Florida v. Shane Guthrie help explain why. After Mr. Guthrie, 24, was arrested here last year, accused of beating his girlfriend and threatening her with a knife, the prosecutor offered him a deal for two years in prison plus probation.

Mr. Guthrie rejected that, and a later offer of five years, because he believed that he was not guilty, his lawyer said. But the prosecutor’s response was severe: he filed a more serious charge that would mean life imprisonment if Mr. Guthrie is convicted later this year.

Because of a state law that increased punishments for people who had recently been in prison, like Mr. Guthrie, the sentence would be mandatory. So what he could have resolved for a two-year term could keep him locked up for 50 years or more.

The decrease in trials has also been a consequence of underfinanced public defense lawyers who can try only a handful of their cases, as well as, prosecutors say, the rise of drug courts and other alternative resolutions.

The overloaded court system has also seen comparatively little expansion in many places, making a huge increase in plea bargains a cheap and easy way to handle a near-tripling in felony cases over the past generation.

But many researchers say the most important force in driving down the trial rate has been state and federal legislative overhauls that imposed mandatory sentences and other harsher and more certain penalties for many felonies, especially those involving guns, drugs, violent crimes and repeat offenders.

Stiffer punishments were also put in place for specific crimes, like peddling drugs near a school or wearing a mask in certain circumstances. And legislators added reams of new felony statutes, vastly expanding the range of actions considered illegal.

These tougher penalties, by many accounts, have contributed to the nation’s steep drop in crime the past two decades. They have also swelled the prison population to levels that lawmakers in some states say they can no longer afford, and a few have rolled back some laws.

The ‘Trial Penalty’

In the courtroom and during plea negotiations, the impact of these stricter laws is exerted through what academics call the “trial penalty.” The phrase refers to the fact that the sentences for people who go to trial have grown harsher relative to sentences for those who agree to a plea.

In some jurisdictions, this gap has widened so much it has become coercive and is used to punish defendants for exercising their right to trial, some legal experts say.

“Legislators want to make it easy for prosecutors to get the conviction without having to go to trial,” said Rachel Barkow, a professor of law at New York University who studies how prosecutors use their power. “And prosecutors who are starved for resources want to use that leverage. And so now everyone acts with the assumption that the case should end with a plea.”

“When you have that attitude,” she said, “you penalize people who have the nerve to go to trial.”

Prosecutors say they are giving defendants options and are merely charging them based on what is allowed under the law for those who turn down pleas.

While legal experts say the effect is clear in persuading more defendants to forgo trials, the trial penalty is hard to quantify without examining individual cases and negotiations between prosecutors and defense lawyers.

That is because threats of harsher charges against defendants who reject plea deals often are the most influential factor in the outcome of a case, but this interplay is never reflected in official data.

“How many times is a mandatory sentence used as a chip in order to coerce a plea? They don’t keep records,” said Senior Judge John L. Kane Jr. of United States District Court in Denver, who believes that prosecutors have grown more powerful than judges. But it is very common, he added. “That’s what the public doesn’t see, and where the statistics become meaningless.”

But one result is obvious, he said: “We hardly have trials anymore.”

In 1977, the year Judge Kane was appointed to the bench, the ratio of guilty pleas to criminal trial verdicts in federal district courts was a little more than four to one; by last year, it was almost 32 to one.

Here in Florida, which has greatly toughened sentencing since the 1990s, felony defendants who opt for trial now routinely face the prospect of higher charges that mean prison terms 2, 5, or even 20 times as long as if they had pleaded guilty. In many cases, the process is reversed, and stiffer charges are dismissed in return for a plea.

Before new sentencing laws, the gap was narrower, and trials less risky, veteran lawyers here say. The first thing Denis deVlaming, a prominent Florida criminal defense lawyer, does with a new client is pull out a calculator to tally all the additional punishments the prosecutor can add to figure the likely sentence if the client is convicted at trial.

“They think I’m ready to charge them a fee, but I’m not,” he said. “I tell them in Florida, it’s justice by mathematics.”

No matter how strongly defendants believe they are innocent, he said, they could be taking dangerous risks by, for example, turning down a one-year plea bargain when the prosecutor threatens additional charges that carry a mandatory sentence 10 times as long.

A Power Shift

The transfer of power to prosecutors from judges has been so profound that an important trial ritual has become in some measure a lie, Mr. deVlaming said — the instructions judges read stating that the jury determines guilt or innocence, and the judge a proper sentence. The latter part is no longer true when mandatory minimums and, in many cases, sentencing guidelines apply, but jurors often do not know that.

Legal scholars like Paul Cassell, a conservative former federal judge and prosecutor who is now a law professor at the University of Utah, describe the power shift as a zero-sum game.

“Judges have lost discretion, and that discretion has accumulated in the hands of prosecutors, who now have the ultimate ability to shape the outcome,” Mr. Cassell said. “With mandatory minimums and other sentencing enhancements out there, prosecutors can often dictate the sentence that will be imposed.”

Without question, plea bargains benefit many defendants who have committed crimes and receive lighter sentences than they might after trial. It also limits cases that require considerable time and expense in court.

But many defendants who opt for trial effectively face more prison time for rejecting a plea than for committing the alleged crime.

In Mr. Guthrie’s case, he was initially charged with aggravated battery on a pregnant woman and false imprisonment. But after he rejected the plea bargains, the prosecutor, more than a year later, filed the more serious charge of first-degree felony kidnapping, based on the girlfriend’s accusation that he pulled her by the arm inside her home and, once outside, grabbed her hair and pulled her on her feet the distance of several parking spaces.

Nobody is suggesting that Mr. Guthrie, previously incarcerated for 18 months on gun, assault and drug charges, is a sympathetic figure. According to a police report, he punched and kicked his girlfriend, left her with a bruised and bloody nose and a face that “appeared to be swollen,” and threatened to cut her stomach with a knife.

The assistant state attorney handling the case, Frank Slavichak, did not return calls. The chief investigator for the office, Spencer Mann, said Mr. Guthrie’s choices dictated the course of the case.

But his lawyer, Craig DeThomasis, hired after the plea rejections, said he was “plainly being punished for exercising his right to trial.” According to Mr. Guthrie’s mother, Claudia Guthrie, the prosecutor told her son at a hearing this spring that if he did not plead guilty and take a five-year sentence, higher charges would be filed that mean “you’re going to get life.” Mr. Mann did not dispute that some sort of warning of new charges was presented.

Mr. DeThomasis said that there was no evidence the girlfriend was pregnant, and that she started the altercation by hitting him in the forehead with a pipe, landing him in the jail infirmary for a week. He pointed out that she was arrested in 2009 for attacking Mr. Guthrie after telling the police he had struck her, leading police to say in a report that she had “changed her story several times and could not explain her actions.” He also said she had a history of involuntary hospitalizations, which she declined to address in a 110-page sworn deposition in February.

Mr. Mann declined to comment on the girlfriend’s background but said none of it affected the credibility of the case.

Judges in many cases can set aside verdicts that they believe are unsupported by the evidence, but they generally have no power in mandatory-minimum cases to reduce punishments below levels established through legislation.

While the Guthrie case may be a particularly stark example of how much power one prosecutor can have over a defendant’s fate, many places have given district attorneys similar influence.

“There have been so many laws passed in the various states that just about always there is some enhancement available to the prosecutor that can be used as leverage in negotiations,” said Scott Burns, executive director of the National District Attorneys Association.

Mr. Burns, a former Utah prosecutor, did not dispute that sentencing-law changes had made trial riskier for defendants and helped drive down the percentage of cases taken to a verdict. He also acknowledged that the plea-bargain process “clearly is coercive” when defendants face harsher or more numerous charges for rejecting deals.

But he said plea bargains were also “extremely lenient in many instances because prosecutors are taking several criminal acts off the table.” He emphasized that lawmakers time and again have given prosecutors more leverage and said it was “grossly unrealistic” to criticize district attorneys for enforcing laws that they are duty-bound to uphold — even those that are ill-advised.

“There are a lot of criminal laws that are passed that we all kind of roll our eyes at,” he said. “Sometimes they are just repetitive; sometimes they are knee-jerk responses to some high-profile case, and therefore politically motivated.”

Though national statistics are not readily available, the trend toward lower trial rates is evident in a number of places.

The National Center for State Courts in Williamsburg, Va., found that the percentage of felonies taken to trial in nine states with available data fell to 2.3 percent in 2009, from 8 percent in 1976.

The number of jury trials rose slightly, while nonjury trials, where a judge decides guilt or innocence, fell sharply — all while caseloads nearly tripled. The states account for more than a third of the American population, and most have mandatory minimums or sentencing guidelines or have passed toughened sentencing laws.

The Bureau of Justice Statistics, after studying partial data on state-court felony prosecutions nationwide, found that from 1986 to 2006 the ratio of pleas to trials nearly doubled.

The shift has been clearer in federal district courts. After tougher sentencing laws were enacted in the 1980s, the percentage of criminal cases taken to trial fell to less than 3 percent last year, from almost 15 percent, according to data from the State University at Albany’s Sourcebook of Criminal Justice Statistics. The explosion of immigration prosecutions, where trials are rare, skews the numbers, but the trend is evident even when those cases are not included.

Nearly nine of every 10 cases ended in pleas last year, the federal data show, while one in 12 were dismissed (the percentage of dismissed cases was substantially higher a generation ago).

The number of acquittals dropped even further. Last year, there was only one acquittal for every 212 guilty pleas or trial convictions in federal district courts. Thirty years ago, the ratio was one for every 22.

More Plea Bargaining

Experts like Ronald Wright, a former federal prosecutor and now a professor of law at Wake Forest University, say they fear that the steep decline in acquittals stems partly from more defendants, who might have winnable cases, deciding not to risk trials and reluctantly accepting plea bargains instead.

Some federal prosecutors worried that their power would be weakened by a 2005 Supreme Court ruling that made sentencing guidelines advisory only. But academics say the ruling had much less effect than what some predicted as many judges still largely follow the guidelines, and the ruling did not affect other laws that have given prosecutors more power.

While sentencing changes allowed legislators in this state to take credit for being tough on crime, they have also worked against their goal of trimming prison costs, leaving prosecutors caught in the middle.

“There is a big disconnect,” said Bill Cervone, the state attorney in Gainesville and the chief prosecutor in six counties that make up Florida’s Eighth Judicial Circuit. “There is subtle and not so subtle pressure” to reduce the numbers sent to prison.

Mr. Cervone, who was head of the Florida Prosecuting Attorneys Association, added, “Our position is, ‘Please don’t pass any new crime laws while you are also cutting our budgets.’ ” His budget has been cut 20 percent in four years.

The fiscal strains extend to judges, who face pressure to keep dockets moving. Some do not appreciate defendants who refuse pleas and then lose a time-consuming trial, he and other lawyers say.

“There are some judges who will punish you for going to trial,” Mr. Cervone said. “Legally, you cannot impose a longer sentence on someone because they exercised their right to trial,” he said, speaking of judges. “Factually, there are ways to do it.”

In some cases, he added, he wished judges had more discretion, instead of having to automatically impose an inflexible punishment.

So, too, do many judges faced with cases where legislatively mandated penalties do not square with their idea of justice.

Like the one in Polk County, Fla. that began when Orville Wollard said he fired his registered handgun into his living room wall to scare his daughter’s boyfriend out of the house after he repeatedly threatened his family.

In Mr. Wollard’s view, he was protecting his family and did not try to hurt the boyfriend, who was not hit, though the judge said the bullet missed him by inches. But after Mr. Wollard turned down a plea offer of five years of felony probation, prosecutors won a conviction two years ago for aggravated assault with a firearm. Because the gun was fired, a mandatory-minimum law required a 20-year term.

At his sentencing, Mr. Wollard said he felt as if he were in “some banana republic” and described the boyfriend as a violent drug dealer. But prosecutors said the judge had “no discretion” because of the state law.

Reluctantly, the judge agreed. “If it weren’t for the mandatory minimum aspect of this, I would use my discretion and impose some separate sentence,” he told Mr. Wollard, adding that he was “duty bound” to impose 20 years.

 

A version of this article appeared in print on September 26, 2011, on page A1 of the New York edition with the headline: Sentencing Shift Gives New Clout to Prosecutors.



Is Florida’s drug law unconstitutional?


Kellie Ann Williams, a 42-year-old Sanford woman, was convicted last year of possession of a controlled substance. The drug: Two anti-seizure pills she had tucked inside her bag for a friend, who had a prescription, as the two women went shopping.

Williams didn’t know the drug, clonazepam, was a controlled substance, she said, and she didn’t realize that by carrying it, she was committing a felony.

“The whole thing was just a mess,” she said Friday.

The law that snagged Williams, a psychology student at the University of Central Florida, is now being challenged by hundreds of drug defendants across the state.

That’s because on July 27, U.S. District Judge Mary S. Scriven declared it unconstitutional, ruling that it violated an individual’s right to due process.

Its flaw, according to her: Prosecutors don’t have to prove that a defendant knew he was breaking the law, only that he was delivering or had possession of a controlled substance — for example, cocaine or a wide variety of prescription medicine.

Florida is the only state with such a law, she pointed out.

Her ruling came in the case of Mackle Shelton, who had been sentenced to 18 years in prison after being convicted in Osceola County of cocaine delivery and other charges.

“Shelton has produced a category five hurricane in the Florida criminal practice community,” wrote Miami-Dade Circuit Judge Milton Hirsch. On Wednesday, he agreed with Scriven, throwing out 39 drug cases.

But judges in Santa Rosa and Escambia counties have ruled the other way.

Central Florida judges must make up their own minds.

On Friday, Circuit Judge Renee Roche in Orlando listened to assistant public defenders argue on behalf of three drug defendants but ran out of time and asked them to come back.

On Thursday, Circuit Judge Debra S. Nelson in Sanford held five hearings and said she would rule next week.

“I’m certain that any legitimate defense attorney would be raising it in all their drug cases,” said Bill Ponell, president of the Central Florida Association of Criminal Defense Attorneys.

Orange-Osceola Public Defender Robert Wesley said his lawyers would.

“It’ll be like dominoes,” he said.

Prosecutors say Scriven’s ruling may be persuasive but that it should have no impact on state courts. They are required to follow the rulings of Florida’s district courts of appeal and Florida Supreme Court — not a U.S. district judge.

“We believe the law that we’ve followed for many years is the proper law now,” said William Eddins, state attorney in Escambia and three other Panhandle counties and president of the Florida Prosecuting Attorneys Association.

According to defense attorneys, the Florida Legislature created the problem in 2002, when it added three paragraphs to the state’s drug statute.

It was a push-back, they say, against the Florida Supreme Court, which had ruled the state must prove that a defendant knowingly committed a crime.

Its sponsors included Allan G. Bense of Panama City, who would become House speaker in two years; Gus Bilarikis of Palm Harbor, now a member of Congress; and Dan Gelber of Miami Beach, a former federal prosecutor.

Bense did not return a phone call Friday. Bilirakis was in Israel and unavailable for comment, and Gelber doesn’t remember the legislation, he wrote in an email Friday.

The change, defense attorneys contend, has turned innocent acts into felonies.

They cite the case of Williams, the Sanford woman who was carrying the pills of a friend, and another man — not related to her — Robert Edward Williams, 44, of Longwood.

He went on trial last month in Sanford, charged with possession of a controlled substance — one alprazolam pill, an anti-anxiety medicine. He had a prescription for it, but because he had put it in a pill bottle with a different label, he was arrested, jailed and prosecuted, according to court records.

Judge Nelson halted the trial and dismissed the charge.

Assistant Public Defender Alpheus Parsons represented Williams.

“I think that’s crazy,” he argued. “The law can’t be like that.”

The Florida Attorney General’s Office plans to appeal Scriven’s and Hirsch’s rulings, said Eddins.




Software Designer Reports Error in Casey Anthony Trial


CacheBack software showed 84 searches for “chloroform” on Anthony computer.

July 19, 2011|By Jeff Weiner, Orlando Sentinel

Defense attorney Jose Baez called them a part of the state’s “fantasy of forensics” — computer searches for “chloroform” prosecutors said showed Casey Anthony had planned to kill her daughter.

Now, the man whose software investigators cited when they claimed the term had been searched for 84 times on the Anthony computer has cast doubt on the legitimacy of that key evidence in the case.

Anthony was acquitted in the killing of 2-year-old daughter Caylee Marie, convicted only on four misdemeanor counts of lying to police. She was released from jail on Sunday.

She had faced a first-degree murder charge in the high-profile trial, and the computer searches were considered a key facet of the state’s argument that the toddler’s death was a premeditated act.

Prosecutors cited a report prepared by a software program called CacheBack, which the state argued showed 84 web searches for chloroform being made on the Anthony computer.

The defense would later contradict the CacheBack report with a separate report generated by another program, NetAnalysis. That report returned only one search result for chloroform.

Last week, CacheBack CEO John Bradley posted a statement on his website, acknowledging that the 84-search result was an error, and criticizing the state for its use of flawed data.

It was Bradley who introduced those results as a witness for the defense. On the stand, he was asked to testify about a CacheBack report “that I had never seen before,” he wrote on his website.

He was not told, he claims, that a NetAnalysis search had returned a different result, and did not hear about the other search until it was referenced by the defense under direct examination.

He realized that the CacheBack data was incorrect, and produced a corrected report, Bradley’s statement said. However, he says his attempts to return to Florida to correct his testimony were rebuffed.

“Since the fate of woman’s life could lay in this critical piece of information, I did everything in my power to remedy the situation, or at least mitigate the issue — once I became aware of it,” he wrote.

In his lengthy statement, Bradley, who could not be reached Tuesday evening, criticized sheriff’s investigators who he said “selectively omitted” information about the NetAnalysis report.

Asked for comment, sheriff’s Capt. Angelo Nieves said that the Sheriff’s Office has already acknowledged “discrepancies” in the CacheBack results.

“We stand by the integrity of the investigation and our partnership with the State Attorney’s Office,” Nieves, a sheriff’s spokesman, said in a statement.

In a N.Y. Times article on Tuesday revealing the errors, defense attorney Cheney Mason accused the state of withholding information about the apparent errors in the key evidence.

“If in fact this is true, and the prosecution concealed this new information, it is more than shame on them,” Mason told the Times. “It is outrageous.”

In a statement on Tuesday, state prosecutors said they are “dismayed at the suggestion made by the defense that prosecutors would withhold exculpatory material.”

“Court records show that the defense was completely aware of the issues, utilizing these facts at trial,” the State Attorney’s Office said. The statement specifically cited Baez’s closing argument.




Orlando officer under investigation after woman says he broke her front teeth


A veteran Orlando police officer is under investigation after a videotaped incident in which he threw a woman to the ground, WKMG-Channel 6 is reporting.

The woman said her front teeth were broken in the incident, which happened in February in downtown Orlando.

Read more at ClickOrlando.com