Monday, January 6, 2014

Kids are Not Little Adults

We live in a society that increasingly expects less and less of children, and in many ways that is bad thing. However, there is one area where the bar has not been lowered, and that is how we treat our children in the criminal justice system. The United States has the highest incarceration rate of children in the world, and unfortunately many of the crimes that these children were prosecuted for are simple lapses in judgment that just happened to lead to tragic results. 

I would encourage you to watch the short lecture below by a renowned prosecutor by the name of Hank Coxe:

After watching this lecture I couldn't help but ask myself: 

If it is true that scientifically children do not have the same capacity for proper decision making as adults, is it fair to treat them as adults when we prosecute them? 

Also, is it fair to submit a child to traditional interrogation techniques, and Miranda procedure, when law enforcement knows very well that most likely the child will either not understand what they are saying, or be so intimidated that the child will say anything to make the questioning stop? 

I have come across some amazing children, that are oftentimes more mature that most adults that I know, but in almost all cases the reason for their maturity is great parents. There are some exceptions, but for the most part, the kids in our criminal justice system aren't blessed with great parents, or even have parents at all. For many, they are left to fend for themselves without the mental capacity to make appropriate decisions.

I understand that when a crime is committed as a society we want to see someone pay, but I would submit that in certain circumstances true justice is looking at the totality of the circumstances and tailoring a decision based on what is not only fair to the victim, but also fair for the perpetrator. I know that this is not a popular position, but I guess that's why I'm a criminal defense attorney. 

Thursday, September 5, 2013

Our Ideological Inconsistencies with Abortion and the Death Penalty

You read the headline correctly. I am going to attempt to talk about two very controversial topics at once. Please try to be as objective as possible regardless of where you stand and I promise at the end you might not agree with me, but I may at least give you some food for thought.

One thing that has always puzzled me is that generally “conservative” folks are pro-life and pro-death penalty; on the other hand “liberal” folks generally are pro-choice and anti-death penalty. In my opinion these stances by both liberals and conservatives are patently inconsistent with each other, and here’s why……..

The Conservative argument on abortion generally (and I understand I’m not covering all the nuances) is that even if there is a good reason to abort a child the value of the life of that child is too high and therefore abortion should be disallowed. So why than is it ok to kill a criminal, even if you have a realllllly good reason to do so? If a conservative were being consistent wouldn't they make the argument that the value of life is too high for it to be worth it? Now I can hear the argument some of you may be making; that a criminal is guilty and a child is innocent so therein lies the distinction, however isn't that just same as saying that you have a realllllly good reason to kill the criminal and that’s why it’s ok? I mean it’s not like the alternative is that a criminal gets to walk free, it’s either death or life in prison, which is no paradise.

Now to the Liberal ideological inconsistency, their argument generally (and again I understand I’m not covering all the nuances) on abortion is that even though it is not ideal, sometimes there are reallllly good reasons to do so, and therefore it is an unfortunate necessity. However, when it comes to the death penalty they value life so much that no matter how gruesome somebody rapes or murders another, that criminal’s life is too valuable to take, and therefore should be preserved. So is what they are saying is that it’s ok to kill an innocent person if you have a really good reason, but not ok to kill a guilty person even if you have a really good reason? Again, I’m confused.

In the end, my point is that if you are pro-life when it comes to abortion you should be pro-life when it comes to the death penalty, at least if you want to be ideologically consistent. The inverse is also true, if you are pro-choice, why in the heck aren’t you pro-death penalty, that doesn't make any sense?

I would encourage your thoughts on this, but please remember that no matter where you stand, or no matter where I stand, we all deserve to be treated with dignity and respect. I know that these topics are extremely volatile, however if we can’t have cordial dialogue with each other how will we ever grow as a society.

Until the next time……

Monday, August 19, 2013

Thoughts on Florida's Stand Your Ground Law

Recently a colleague of mine from a different state reached out to me and asked me to comment on the following question regarding Florida's Stand Your Ground Law:

I was wondering if the law is misinterpreted by people both inside and outside of Florida, and if yes, whether those misinterpretations/misconceptions of the law are due to the media or other sources. Also, whether the Florida self-defense statute is really that much different from other state self-defense laws and the MPC. 

Here is my response:

The short answer to this question is no there are not MAJOR differences between FL self-defense laws and other jurisdictions (including MPC) and yes there are major misinterpretations/misconceptions due to media, other sources, and plain old ignorance. 

The perception out there is that the "Stand Your Ground Law" (which is really just one sentence in Florida Statutes Chapter 776 and is the law in several other states) creates the "Wild West" where people can shoot anybody that looks at them funny and pay no consequences. However, if people would just dig a little deeper under the surface and stop accepting the talking points they would see that "Stand Your Ground Laws" are a huge protection for Criminal Defendants, and have saved many, many innocent people from going to jail.

In a nutshell what the “Stand Your Ground” provision of FL. Stat. Ch. 776 does is extend the castle doctrine of “no duty to retreat” from the home to any place a person has a lawful right to be. So in other words, if I’m standing on the sidewalk and somebody attacks me I don’t have to make that split second decision of whether or not I can safely retreat before I meet force with force. 

Before the tragic story of the Trayvon Martin case (WHICH IS NOT A STAND YOUR GROUND CASE BTW!!!!!) there were several tragic stories of innocent individuals that defended themselves from brutal attacks, but because a crafty prosecutor argued effectively to a jury that the defendant could have safely retreated if he wanted to, those innocent individuals ended up going to prison for a very long time. That is the reason why we have Stand Your Ground laws, to protect people from being put in that impossible position of having to assess their surroundings, while at the same time being brutally attacked, and make a decision of whether or not they can safely retreat. 

Have there been cases with unfortunate outcomes because of the Stand Your Ground provision, of course, no law is perfect. But as a Criminal Defense attorney I firmly believe that it is better for 10 guilty men to walk free than for 1 innocent man to have his liberty taken away. That is what Stand Your Ground does, it protects the innocent, it protects our civil liberties, and it stops wily prosecutors from using legal loopholes to send innocent people to prison. In my opinion, any champion of our civil liberties should be a staunch supporter of Stand Your Ground laws. 

Also, let me take a quick second to clarify what I meant above when I said that the Trayvon Martin case was NOT a stand your ground case. When George Zimmerman made the decision to use deadly force and shoot Trayvon Martin, Trayvon Martin was mounted on top of George Zimmerman and was slamming his head into a concrete sidewalk. In that factual scenario George Zimmerman had no duty to retreat, not because of Stand Your Ground, but because it was physically impossible. He was on his back and could not move, therefore the Trayvon Martin case was a classic self-defense case, and not a “Stand Your Ground” case where someone had the opportunity to retreat but decided not to. 

Monday, August 12, 2013

Thoughts on the Zimmerman Trial Part 1

Action shot of me trying to show Mark O'Mara how to use his computer.

It hasn't even been a month, but it seems like an eternity since I stood in that courtroom in Seminole County, only a few feet away from George Zimmerman, and heard those two words uttered that sparked a nationwide firestorm. "Not Guilty." It all happened so fast that I didn't know whether to smile, cry, or take cover.  Sixteen months of working on one case, oftentimes until late in evening. Sixteen months of waking up everyday and thinking about one objective, one goal, and then just like that in a matter seconds it's all over. 

In the last few weeks I've sat back and reflected on what our team accomplished and asked myself, was I on the right side? Was justice served, or did a man get away with murder? I honestly and sincerely feel heartbroken for the Martin family, now people may dismiss this because I was on the "Zimmerman Defense Team" and therefore I contributed to to their despair, and that's fine, but even though I'm an Attorney and I make a living defending those accused of crimes, I am also human. I also have children, and no matter what the circumstances, no matter what my child may or may not have done, I would still be devastated if they were to pass. No parent should ever have to bury their child. 

So with that said, do I regret what happened the evening of July 13th 2013? Do I regret helping George Zimmerman get exonerated? The answer is no. I say no not because I am a heartless, cold blooded attorney that only cares about winning. I say no not because I am a racist and I thought Trayvon Martin was a punk and got what he had coming to him. I say no because objectively, after you peel back all the emotion, all the tragedy, all the heartbreak, all the racial overtones, we simply have a case were the majority of the evidence that was available for the jury to consider was oftentimes only marginally inculpatory, and in most cases even exculpatory. In other words the state simply did not have a case to overcome self defense. That's the bottom line.

There is a saying in law that always rings through my head in cases like this one, and that is "tragic facts make bad law." This is a classic case of tragic facts, and it is in these situations that our legal system is truly tested. When it is a tough call, when your heart is telling you one thing but the law says another, will the rule of law prevail? As I type these words I can hear African Americans across the country saying to themselves that it's easy for me to say that, and although I can never fully understand, I certainly can acknowledge that they have a point. 

This is my first of what I hope to be many posts regarding this case, please stay tuned for Part 2.