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Florida Criminal Defense Lawyer Blog

In response to the escalating rates of teen suicide, school shootings and cyber-bullying, Wisconsin has passed an ordinance imposing fines on parents of kids who bully. It’s not a criminal charge. Rather, it’s a civil ordinance which permits a fine of $124 against parents whose kids repeat bullying behavior after being warned of their conduct. The Wisconsin police chief said that he’s in favor of the new ordinance because it puts pressure on the parents, the ones whose job it is to raise the kids. He doesn’t believe it’s the teacher’s obligation to prevent kids from bullying. He explains that teachers’ energy should be limited to the challenging task of teaching our kids.

The way that this ordinance will be enforced is as follows. First, police will identify those kids who have engaged in repeated bullying within a 90 day period. The parents will be notified and asked to work with law enforcement to correct the behavior. If the bullying persists, then their parents may be fined.

The analogy made by the police chief is that it’s like if a kid breaks something, their parent would be held responsible for it. He wants to see parents taking responsibility for their kid’s behavior. School principals seem to be embracing the ordinance.

At first I was opposed to this idea. While I recognize the need to do something to stop the proliferation of bullying in schools, I’m concerned about punishing simple kid behavior. In other words, I don’t want little Johnny and/or his parents punished because Little Johnny calls another schoolmate “fat.” The portion of kids’ brains governing judgment and reasoning, the frontal lobe, hasn’t been fully formed yet. That’s why kids often say and do stupid things. It comes down to how the term “bullying” is defined. If law enforcement can identify those students who are engaged in the worst, most damaging repeat behavior, coupled with parents who refuse to address the issue, then the ordinance should have merit.


36-year-old mother Qumotria Kennedy was recently a passenger in a vehicle that was pulled over after the driver allegedly didn’t come to a complete stop at a stop sign. Though Kennedy wasn’t doing anything wrong, police demanded her I.D. and learned that she had a warrant for her arrest out of Biloxi, Mississippi for failing to pay $400 in court fines. The fines were for traffic tickets that she failed to pay in 2013. Back then she told her probation officer that she was too poor to pay the fines and also, didn’t have any way to secure the funds from anyone. Ms. Kennedy worked in downtown Biloxi as a baseball field cleaner. She was earning less than 9 grand annually. For a single person, that is significantly under the poverty level. It’s important to note that Ms. Kennedy supports her two dependent children.

In spite of pleading poverty to her probation officer, Ms. Kennedy was warned that if she didn’t come up with the full amount of all the fines that she owed, in addition to the $40 monthly probation fee, she would be arrested. True to her word, the probation officer sought a warrant to arrest Ms. Kennedy once it was clear that the court fines and fees weren’t being paid.

After Ms. Kennedy was arrested, she was informed that if she didn’t fork over all the outstanding costs that she owed, which now had ballooned to $1000 as a result of all the monthly probation fees, she would remain in jail. Because she couldn’t possibly pay that amount, she remained incarcerated for the next five days.

Kennedy’s experience in jail was nothing short of horrible. She said that the toilet was broken and there was no hot water. She said that she was housed in a cell with a woman who had stabbed her husband. Additionally, for the first three days, she wasn’t even permitted to contact her children to inform them where she was.


In 1983, the United States Supreme Court declared it unconstitutional to incarcerate people who couldn’t afford to pay court fees or fines. The highest court in the land made it very clear that arresting someone solely for financial reasons violates the 14th Amendment ensuring equal protection under the law. The Court ruled that judges must first evaluate a person’s ability to pay before sending them to jail. In spite of the Court’s ruling, many are surprised to learn that debtor’s prisons are still alive and well in the U.S.

Fortunately, Ms. Kennedy is suing. She’s the lead plaintiff in a class action suit filed by the ACLU against the city of Biloxi, their court system, their probation department and police department. The ACLU alleges that the various agencies conspired to create a modern day debtor’s prison in an attempt to extort money from the poor. The City of Biloxi believes that the ACLU is wrong in their allegations and that the city affords the poor an opportunity to do community service hours instead. The statistics seem to undermine what the city is alleging. At least 415 people went to jail as a result of warrants that alleged that they failed to pay fines that they owed to the city between September 2014 and March of 2015. Each one of the 415 arrested didn’t have the money to pay back what they were owed and were told they’d be held for days.

One homeless guy, 51-year-old Richard Tillery, spent a month in jail for failing to pay fines stemming from petty crimes that related to his poverty and homelessness. Another man, who was physically disabled as a result of multiple heart attacks, spent seven days in jail after failing to pay $170 for a speeding ticket. Even more tragic, just last month, a man died in a Detroit jail on day 16 of a 30 day sentence for failing to pay a careless driving fine in the amount of $772. Another man died in 2011 in the same jail that Kennedy was housed. He, too, was incarcerated for failing to pay a $409 court fine.

Unfortunately, this unlawful behavior isn’t limited to Biloxi, Mississippi. Back in 2010, the ACLU uncovered the same practices in Washington, Georgia, Ohio, Michigan and Louisiana. The unlawful practices seems to be increasing. More cities use “debtors prisons” in order to generate very needed revenue.


Obviously, this unlawful practice needs to stop…yesterday! If people can’t afford to pay fines, costs and/or fees, they should not be jailed. Instead, they should be afforded the opportunity to perform community service in lieu of payment. Those bureaucrats who continue to thumb their noses at well established law making this practice unlawful, should be prosecuted. Word needs to get around that there will be stiff penalties for those who opt for debtors prisons as a money making scheme.

No. There you have it. All my clients aren’t innocent. No beating around the bush from me. I won’t give you that frequently offered smug line, “All of my clients are innocent…until proven guilty.”(Even though they are legally innocent) As a criminal defense attorney, I do represent numerous “guilty” clients. “How can you defend those guilty people?”, many have asked. The answer is, “It’s actually easier to defend someone who is guilty.”
To understand what I’m saying, imagine someone you care about was accused of a crime that she/he did not commit. Imagine feeling powerless over the police, prosecutor and judge. You want so desperately to make the charges go away, however, you can’t. Sleepless nights, stress, and anger all accompany this living nightmare. Who do you turn to? Me. While I can’t guarantee any particular result, I take on representation of your innocent loved one with the promise that, “I will do all that I can do obtain the best possible outcome under extremely challenging circumstances.” In spite of indicating that you understand that I cannot pull a “David Copperfield” and make the charges disappear, you don’t really want the “best possible outcome.” In your mind, anything short of the charges being dropped would be a miscarriage of justice. Well, that energy and pressure falls on me. While I’m always up for the challenge, I nevertheless am constantly feeling the daily pressure to keep doing the next right thing in order to obtain justice for my clients. One of the many initial challenges that I face in dealing with innocent clients is that most prosecutors and judges don’t believe that my client is innocent. You ask, “But what about the presumption of innocence?” Ha! That only exists in cheesy television law dramas. In reality, most prosecutors and judges believe that if a person was arrested, they must be guilty. Similarly, most potential jurors typically share the same philosophy. I prove that every time I’m picking a jury at trial. Invariably, I ask the following questions: “Have you ever driven by the scene of a crime and seen someone who had been handcuffed by police?” (After most jurors respond, “Yes”) I next ask, “Let me guess, your thought at the time was, “Why are they arresting that sweet innocent person?” Many jurors laugh at loud after hearing me say that. I then say, “That’s not how you feel. Rather, you think, What did that guilty person do?” I then challenge them with the following, “Knowing that my client was one of those persons who once wore handcuffs and was brought to jail, just like those arrested persons you’ve seen in the past at the scene of a crime, how can you believe that he is innocent? (As the law requires) I study the looks on their faces. The ones who give me a, “You make a good point” look, I move to strike. The ones who fire back with, “Well, just because their arrested and handcuffed doesn’t mean their guilty,” are the jurors who I want to hear the case.
The feeling of fighting for an innocent client and ultimately being able to get the charges dropped by prosecutors is a spectacularly rewarding experience that is almost indescribable. I feel like I’ve been a part of something wonderful. My feeling after jurors acquit my innocent clients is a bit different. Instead of feeling relief after the not guilty verdict, I am often consumed with anger. I think, “You see prosecutor? This case never should have gone to trial. You should have dropped these charges. My client shouldn’t have gone through the extraordinary financial and emotional strain of a trial. You should have done the right thing months ago when I passionately pleaded with you and shared evidence that supported innocence.”
After I get charges dropped or obtain an acquittal for an innocent client, I am typically not given the response from the client and/or client’s family that you might envision. Football coaches who win the big game are hailed as heroes and may receive the triumphant “Gatorade Shower.” The basketball players who make the clutch winning shots often are rewarded with high fives and hugs. Even the actor who is merely nominated for the Oscar is invited to the most happening parties in town and is showered with accolades. When I win a case for an innocent client, typically the reaction, even before the occasional “thank you,” is, “Ok, now who can we sue?” That’s followed by, “They never should have put me through this hell. Can we at least sue to get back all the attorney fees I had to pay you?”
So, give me a guilty client, any day. The passion and energy that I put into defending that case is no different than for the innocent client, however, as you now know, things can be very different. Some rare days I do wonder why I never became a football coach.

This one is outrageous. A 16 year old boy was arrested and charged as an adult in criminal court and prosecuted for sexually exploiting a minor, under the federal pornography laws. Who was the minor? He was! Yes, North Carolina federal prosecutors prosecuted him for having nude pictures of himself on his cell phone and for sending naked photos of himself to his 15 year old girlfriend. She sent nude photos of herself to him as well. While the photos were never disclosed to anyone else, the two were both charged with four felony counts. The photos were discovered solely because investigators were looking into a bigger problem at the school concerning sexual images being shared without the victims’ consent. These teens weren’t involved in that scandal in any way.

The teens were forced to take a plea deal in order to avoid jail time and being forced to register as sex offenders. In addition to having to agree to be subjected to warrantless searches by law enforcement for a year, the male teen suffered numerous other penalties. Additionally, he was suspended as quarterback of the high school football team while the case was resolved. Additionally, his name was all over the media.

I’m still blown away by this one. In North Carolina, the state in which they were prosecuted, the age of consent for sexual intercourse is 16. So, while they could legally have actual sex, and take mental pictures of each of their teen bodies, they just couldn’t legally memorialize it with a photo to be shared with the other. Ludicrous!

If I’m being intellectually honest, I must concede that technically, what they did was a crime. That in no way means that prosecutors had to move forward with these cases. It’s called prosecutorial discretion. Use it!!! I’ve done some research and found zero examples where teen lovers were ever prosecuted for consensually sharing naked photos with each other. It makes no sense that prosecutors deemed both teens predators and also the victims, who needed the law’s protection. “Alex, I’ll take gross overreach for a thousand.” When the U.S. Supreme Court made child pornography illegal in 1983, they were determined to protect children from adult predators. I’m certain that they never envisioned that the law would be used to arrest and prosecute teens for taking naked selfies and sending them on cell phones.

While the federal laws apply throughout the U.S., I applaud the 20 states who have enacted laws that make these same acts lawful. Typically known as “Romeo and Juliet laws,” they are absolutely necessary to prevent this type of prosecution when there is no victim.

With an estimated 30% of teens “sexting” each other these days, law enforcement needs to use their discretion and common sense when dealing with these types of cases. If not, let’s just keep building lots of jails and get ready to turn tons of our teens into registered sex offenders.

…says my friend Whoopi Goldberg. In defending Bill Cosby, she stated, “The bottom line is, that’s the law.” She added,”Innocent until proven guilty.” In illustrating the importance of due process, Whoopi highlighted the 2006 Duke lacrosse case, where three Duke lacrosse team members were falsely accused of rape.

In response, I say, “Whoopi, you are right.” Legally, every defendant is presumed to be innocent unless proven guilty in a court of law. That includes Bill Cosby. The question is whether every person who is “legally innocent” is actually/factually innocent. The answer is “no.” There are numerous reasons why someone who committed an offense may never be brought to criminal court and/or convicted. One reason is that the evidence is insufficient, in spite of the person’s guilt. As we have all learned from many high profile cases resulting in acquittals, the Criminal Justice System is less about truth and more about what can be proven. “Proof beyond and to the exclusion of every reasonable doubt” is a very high burden for prosecutors to reach. As a result, many cases aren’t brought by prosecutors due to proof problems and not because of a person’s innocence. Additionally, some cases aren’t brought in the criminal arena because of problems with the Statue of Limitations. That’s the only reason why Cosby hasn’t been yet stripped of his liberty, in spite of approximately 40 separate accusers and his admission in sworn testimony from his 2005 civil suit. Prosecutors believe he is guilty and most folks who are being intellectually honest also believe he isn’t Snow White innocent.

Regarding her opinion about Cosby, Whoopi has also stated, “So, don’t come after me like that, ’cause I’m sick of this bull.” She added: “Here’s the bottom line, for me: It’s my opinion. And the American courts agree with me, because still he has not been taken to jail or trial on anything. So, back off me!” To those remarks, I say, “Well Whoopi, you are right, in part.” People should back off if they are personally attacking you or threatening to do violence to you. What makes this country great is that everyone is entitled to their opinion. As a free society, we should encourage a free flow of ideas and agree to respectfully disagree with those whose opinions differ from ours. However, what I do disagree with is the portion of her remarks which seem to erroneously suggest that Cosby is actually innocent because he was never taken to jail or placed on trial. That hasn’t happened solely because of the Statute of Limitations.

So, are we wrong for saying or even thinking that Cosby is guilty absent a conviction or even an arrest? After all, as Whoopi points out, shouldn’t we keep our, “He’s guilty” remarks until after he has been brought into court and convicted. My answer may surprise you, especially since it’s coming from a veteran criminal defense attorney. Most defense lawyers would scorn you for declaring someone guilty before it’s proven in court. I don’t feel that way. I do believe that people should keep an open mind, keeping in their recent memories cases like the Duke lacrosse case and the countless innocent prisoners released after being exonerated. I also encourage people to realize that the media doesn’t always accurately report the evidence in a case and/or they don’t have the complete story. However, the “Court of Public Opinion” is always in session and folks are free to formulate their own opinions, in spite of whether or not a case ever makes it to criminal court. Legally guilty and factually guilty may be two separate things. In other words, just because a person has never been brought to court or, after they were yet they were not convicted, does not mean that they are factually innocent.

So, is Bill Cosby innocent? Yes and no. Whoopi is correct that he is legally innocent because he’s never been proven guilty in a court of law. However, to suggest that he’s factually innocent, in spite of his admission in the civil case and the fact that there are more than three dozen accusers, seems to be a bit off base.


On Tuesday July 14th, Whoopi changed her stance concerning Bill Cosby. She stated on “The View” that she can no longer say “innocent until proven guilty.” She further stated during a conversation with ABC News chief legal analyst Dan Abrams., “If this is to be tried in the court of public opinion, I got to say all of the information that’s out there kind of points to guilt.”

It has just been revealed that all six of the criminally charged Baltimore police officers, who were involved in the arrest of now deceased Freddie Gray, provided statements to law enforcement investigators. At the time of this posting, the contents of each of the officers’ statements is unknown. It’s possible that everything that flowed from each of the officers’ lips assists their defense. On the other hand, what is also possible is that some of the statements made by some or all of the officers will be words that prosecutors will seek to introduce against them at trial. The question that many are asking is, “Can the officers’ statements be used against them?”

Whether their statements can be introduced against them at trial hinges upon the facts and circumstances surrounding how the statements were obtained. Let’s assume that all six officers were questioned while an investigation into the arrest and subsequent death of Freddie Gray was being conducted. Assuming that investigators read every officer their Miranda Rights. If that were the case, then I don’t believe their attorneys could prevent prosecutors from introducing their statements. If their rights were read to them, they would know that anything they said could be used against them in a court of law.
Let’s now suppose that Miranda Rights were not read. Let’s also assume each of the six officers were told by law enforcement investigators that they were conducting a criminal investigation. My conclusion would be that the statements would still be admissible at a criminal trial. The prosecutors will argue that when the officers were questioned, they were not under arrest. They will further argue that the officers were free to leave and could have walked out of the interrogation room at any time. Therefore, because they weren’t “in custody,” no Miranda rights had to be afforded.
Let’s change the facts one more time. Let’s say the officers were placed under arrest and then asked to give statements. If they weren’t read their Miranda Rights, then the statements should be suppressed (thrown out of court). There’s no “Police Officer Exception” to the Constitution. Every citizen who is in custody and not free to leave, including police officers, must be informed of their Miranda Rights prior to being interrogated.

So, can the officers’ statements be admitted against them in their criminal trials? The answer is, “It depends.” Like most legal decisions, the facts determine whether evidence should be admitted. In this case, assuming the officers were not under arrest and/or not free to leave when being questioned, I believe their statements will be admissible against them. Whether prosecutors want to introduce their statements is an entirely different issue.

This one really gets me. Two parents from Florida were arrested for felony child neglect. What did they do? Starve their child? Deprive their child of needed medical care? Leave the child abandoned on the streets for days with no food, clothing or shelter? No, nothing like that. The two parents were stuck in traffic so their 11-year-old son arrived home from school before they did. He went into the back yard of their home and began to play basketball alone. Seeing the boy shooting hoops by himself, a neighbor called the cops.
When the parents arrived home, the police began their interrogation. Claiming the child had no water or shelter, the police arrested both parents. As a result, the 11-year-old boy was removed from their home. Furthermore, child protective workers removed from their home their other son, a four-year-old. The two boys languished in and out of foster care for over a month before they were finally reunited with their parents. The criminal charges are still pending at this time.
OK, first, shame on you neighbor! You called the cops? Look what your choice caused. If you think the kid needed food, water or shelter, offer it to him. Calling the cops is the last resort!
Next, shame on you cops! You didn’t have to arrest these parents. You claim the child didn’t have water, however, the parents had two working sinks and two working hoses in their backyard if the child was thirsty. You claim the child didn’t have shelter, however, they had an open shed in the back yard. You claim he didn’t have food, however, the boy had just eaten his snacks before arriving home. Additionally, you claim he didn’t have a bathroom, however, the responding officer found their yard good enough to relieve himself in while the 11-year-old “neglected” boy sat in the back seat of the patrol car.
From a legal perspective, it’s important to understand that Florida has no minimum age where a child cannot be left alone at home. In my strong legal opinion, these charges should be dropped. I’ll take it one step further, I think this is a miscarriage of justice and I think these parents and kids are owed an apology. These charges undermine the integrity of our Criminal Justice System.

Having practiced criminal law for over two decades as both a prosecutor and as a defense attorney, there’s one question I get asked more than any other, “Should I blow?” Solely for those whose minds tend to travel to unusual places, the “blow” I’m referring to concerns the breath machines police use during drunk driving (DUI) criminal investigations.

For purposes of this post, let me first make clear that you should never drink and drive when you’ve either had too many and/or you feel impaired. What I’m not telling you is, “Don’t drink and drive.” I wouldn’t tell you that because that’s not the law. If it was unlawful to drink and drive, bars wouldn’t have parking lots. The message is, “Don’t drink and drive…if you’re impaired.” If there’s even a question as to whether you’re impaired, then your choice should be to avoid getting behind the wheel.

Now, let’s assume you make the choice to drive after consuming some adult beverages. Let’s further assume that Officer Friendly stops your vehicle, has you perform roadside tests, and then strips you of your liberty, believing that you’re impaired. What now? Should you blow into the machine? (Cops and prosecutors call it an “instrument” and not a “machine” because machines (like toaster ovens) make mistakes)

In making your decision, you must understand a few key facts. First, the officer definitely believes you are impaired. That’s why he arrested you. He’s even going to swear to it under the penalties of perjury in the arrest report. Furthermore, regardless of what your breath reading is, he’s not going to un-arrest you. Yes, you read correctly. Even if you blow under the legal limit, Officer Friendly will not give you back your freedom. The protocol in most departments in South Florida and around the U.S. is to then request a urine sample. Most officers believe they can’t be wrong. They couldn’t possibly have made a mistake. You definitely must be impaired, regardless of what that breath reading shows. Therefore, it must be drugs! So, they will request a urine sample from you, which will detect even that hit of the “Devil’s Grass”/”Maui Wowee” you took from the joint three weeks ago at the Coldplay concert.

Another fact is that if you refuse to blow, the Department of Motor Vehicles will suspend your driving privileges for one year or up to 18 months if you’ve refused to blow previously. Additionally, if you’ve refused before, law enforcement can now charge you with an additional criminal offense.

One other aspect to consider is that your failure to blow into the machine can and will be used against you in court during your DUI prosecution. Prosecutors today, still passionately argue what I did when I prosecuted these cases 20+ years ago: “His/her refusal to blow shows consciousness of guilt! He/she knew he/she was impaired and that’s why he/she refused to blow.” That can be very compelling evidence against you. On the other hand, equally, if not even more compelling evidence against you, would be a breath reading showing that you’re over the legal limit.

So what’s the answer? Here it is, “It depends.” If you’ve only had one drink (not the size of a fish bowl), that contains about one shot of alcohol, you should be fine. Two drinks? Maybe, depending on your size and how much you’ve had to eat, and when you drank them. Anything more, I’d be concerned.
While there’s no study that I’m aware of, I believe that drunk driving cases without a reading are won a lot more often than those with a reading over the limit. In the countless DUI cases that I’ve defended over the years, I find that jurors can accept many of the reasons why someone chooses not to blow, other than being impaired. For example, some don’t blow because cops refuse them the opportunity to speak to their lawyers first to determine what they should do. Many of my clients are afraid and don’t trust the breath machines. They simply want some guidance before making the decision. Absent the ability to speak to an attorney, many will choose not to cooperate any further, even if that means the officer will consider their actions a “refusal.”

I have been very successful over the years in challenging the license suspensions that get issued by the Department of Motor Vehicles for failures to blow. The suspension isn’t a definite. There are many ways to successfully challenge that suspension at a hearing conducted at the Department of Motor Vehicles.

In conclusion, “Don’t drink and drive if you’re impaired.” However, if you make that poor choice and you know you are impaired, your chances of prevailing in the criminal arena are greater absent a breath reading showing that you are over the legal limit.

Two of the six officers charged in Baltimore, Officers Edward M. Nero and Garrett E. Miller, are alleged to have committed the crime of false imprisonment against Freddie Gray. The prosecutor’s theory is that Gray’s arrest was unlawful because the knife that police seized from Gray’s pants pocket is allegedly legal under Maryland law. In charging documents, prosecutors allege, “The knife was not a switchblade knife.” Rather, the knife was allegedly one that folded into the handle, and thus, perfectly legal to possess.

The defendants argue that, contrary to what prosecutors maintain, there is no false arrest here because the knife was illegal to conceal. Nero’s attorney has requested to inspect the weapon. He wants to show that while not a switchblade, the pocket knife does have spring action, which would make it unlawful under Baltimore law. If that’s correct, then there is no case here and the only one who arguably committed a false arrest would be prosecutor Marilyn Mosby.

I don’t believe this case should hinge on whether the knife was lawful or not. The issue for me was whether the officers intended to falsely arrest Freddie Gray. In other words, if prosecutors can show that the officers knew the knife was lawful and that Gray had committed no crime, yet chose to arrest him anyway, then there may be merit to the prosecutor’s case. However, that’s not what was alleged by the prosecutor at the press conference when the charges were first announced. I have no reason to believe the prosecutor chose not to reveal her best evidence when addressing the metaphorically mostly blood thirsty, pitchfork carrying crowd.

Let’s assume then that the officers made a mistake in good faith. Therefore, to me it appears that the officers were stripped of their liberty because they weren’t perfect. It appears that the prosecutor has zero tolerance for officers making mistakes. She must expect all officers to be familiar with the literally hundreds of different makes and models of pocket knives that are on the street and to be able to conclude definitively within a matter of minutes with 100% accuracy whether a pocket knife is lawful or not. So many pocket knives, so little time. There’s the Spyderco Delica, the Kershaw Ken Onion Blur, Buck 110 Folding Hunter, Victorinox Champion Plus and countless more. Dare you make a mistake. You will pay for it with your livelihood and your liberty.

Having practiced in the criminal arena for over two decades, I’ve seen more than a dozen cases where officers in good faith arrest someone erroneously believing a knife was unlawful. I suspect there’s countless other officers around the U.S. who make that same type of mistake every year. What has happened in every one of those cases is that the charges are eventually dropped by prosecutors who research the weapon to determine its legality. What always happens to the cop? Nothing. He certainly isn’t arrested for an honest and/or possibly negligent mistake. I’m outraged that these cops are being treated any differently than the numerous cops who have made the same honest mistake before or after them. Aristotle defined justice as, “Like cases being treated alike.” “Justice for Freddie Gray” sounds good. “Justice for all” sounds even better.

Imagine that the police allege that you committed an extremely “high profile” violent act against someone. The victim’s attorney and the public are demanding that you are immediately stripped of your liberty and charged with the crime. Because you believe that you are innocent, you don’t want the charges filed by the prosecutor evaluating the case. You are praying that the screening process is fair. Immediately after the prosecutor’s alleged “thorough and independent investigation,” she decides to file charges against you. While questioning the fairness of the process, you then learn that the victim’s attorney donated thousands of dollars to the prosecutor’s campaign. He even served on her transition committee. Additionally, it comes to light that your prosecutor is married to a high profile councilman who represents the people from the jurisdiction where the crime allegedly occurred and from where the victim resides. Does this process seem fair? Does the prosecutor give off the image of impropriety?

The facts presented in the hypothetical above mirror those present in the high profile Baltimore criminal case involving six police officers, each charged with offenses relating to their alleged mistreatment of Freddie Gray. The prosecutor Marilyn Mosby, who made the decision to file serious criminal charges against the officers, did accept $5,000 in campaign donations from the victim’s family attorney William Murphy. He also worked with her on her transition committee. Her husband, Nick Mosby is a city councilman who represents the people from the jurisdiction where the crimes allegedly occurred. Additionally, the victim was one of his constituents.

Anyone who doesn’t think that, at a minimum, there’s the image of impropriety is either naive or being intellectually dishonest. If you, or someone you love were faced with similar facts, you’d be passionately crying foul. If the same allegations were made about a judge presiding over these defendants’ criminal case, the judge would most certainly have to recuse him/herself. I’m not suggesting that the charges weren’t warranted. They may have been, however, see some of my concerns: http://www.floridacriminaldefenselawyerblog.com/2015/05/baltimore-criminal-case-not-a-slam-dunk.html I’m also not suggesting that Mrs. Mosby can’t be fair. What I’m simply pointing out is that if there was another prosecutor who was more “independent” and free from the above described relationships, the process would have to be perceived as more fair. I still don’t see the down side in bringing in an independent prosecutor to review Mrs. Mosby’s charging decisions.

I’ve learned from first hand experience that prosecuting cases is not an easy job. What’s extremely challenging is determining what conduct is and isn’t criminal. Also difficult is determining what specific charges, if any, should be levied that fairly and appropriately reflect the crime(s) committed. Filing decisions made by prosecutors are almost always scrutinized and often criticized. Because of that, it’s imperative to ensure that the process is as free from the image of impropriety as possible. Unfortunately, in the Baltimore case, the process appears to be tainted. An independent prosecutor reviewing the charges would go a long way towards eliminating that cloud of impropriety that currently hangs over this case.