FORFEITURE DEFENSE

Forfeiture defense: A true story by "Forfeiture Phil." 

Being arrested is a traumatic event. The government is more and more using another weapon in their arsenal when charging someone with a crime: seizing their assets. This can turn an arrest into a possible financial disaster.  State and Federal law enforcement officers are now routinely seizing cars, cash, freezing bank accounts, and in some cases, trying obtain a person's house or other property. 

When the police seize assets, all is not lost. 

This is the picture of over $40,000 in  cash I got back for my client and this is the story of how I did it. 

I was able to get my client's cash back! 

My client and his wife and young child pulled up in their car to a house to meet a friend. The client had the cash because after meeting his friend he was scheduled to buy a truck for his trucking business. Unknown to my client, the house he was going to had been raided by the police. While still in his car, the police came racing out of the house, guns drawn, and in front of his screaming young child, pulled my client out of the car. He was separated from his wife and when the police went to search the car he told them they needed a warrant. Police don't like being told that and they arrested him for-and  I am not making it up- resisting arrest without violence, a misdemeanor in Florida. 

The police searched his wife and found the cash in her purse. The police then separately presented the wife and my client with forms stating that they agreed to let the police take and keep their money without any court proceeding. The law calls this a "waiver" and it has to be "knowingly, intelligently, and voluntarily" done. In this case, none of those terms applied to the waiver.

 The police obtained the waiver by threatening to arrest my client on felony charges if he didn't sign away his rights to his money. 

The client came to see me and I began my defense on the criminal case I also began to attack the forfeiture. On December 24, 2016, I got the criminal charges- which were patently ridiculous- dismissed. 

In normal cases in Florida, when the police seize property they have to send the owner notice telling them they have the right to an adversarial preliminary hearing within 15 days.  At the APH hearing the court will determine if the police have proved "a nexus" - which means a connection between the property and criminal activity. If the court finds no nexus, the person gets their property back. If the court finds a nexus, then the case proceeds like a civil law suit. The legal department for the police files a complaint and the owner files an answer and the case is litigated. 

All too often, I am now unfortunately seeing the police trying to short-circuit the legal process and having the owners sign a piece of paper forfeiting all their rights. Remember, this is occurring during an arrest, when the person is already scared. Many people think if they cooperate the police will not arrest them or the judge will go easier on them. Nothing could be further from the truth. 

In this case I went to court to set aside the "waiver" the police had. My client and his wife testified. They told the judge where they got the cash from, what they were going to use it for, and how the police threatened them and forced them to sign their rights to the cash away. The judge agreed with me and set aside the waiver and the case proceeded as I explained above. During that process I negotiated a settlement with the police department to return most of the money. 

I don't like settling cases when my client has a strong case. But the courts are crowded and getting hearing dates before civil court judges can be a long process and my client needed the money for his business, so he gave me the authority to settle the case. 

There are long standing principles in Florida law that forfeitures are disfavored. There is a high burden for the police to keep the property they have seized. Florida's legislature recently enacted new laws making it harder for the police to seize and keep property or assets from a forfeiture. 

The most important thing to remember when placed in a situation like the one my client found himself in is that it is illegal for the police to threaten anyone, and no one in the United States of America can ever be punished for exercising their rights. 

Thanks for reading. 

"Forfeiture Phil". 

FEAR AND WRITING IN MIAMI (PART TWO)

I spent this past week in Orlando doing death penalty mitigation for a client who is charged with committing a horrific murder. The murder got a lot of play in the media.

I finished the week by attending a writer’s conference in Tampa, where I had the opportunity to pitch two agents on my Manuscript: One Week.

The cold pitches were ten minutes. It occurred to me as I waited to give my first in-person pitch ever to an agent, that ten minutes is the time the U.S Court of Appeals gives me when I get oral argument on a case.

Ten minutes to save a client on appeal after spending months and months agonizing over every word in the brief, versus ten minutes to sell my book after spending every free moment I could squeeze out in the last year writing and writing and editing and editing.  

Appeals and fiction writing; it turns out there are a lot of similarities, starting with the fear factor as I sat outside the room waiting for my pitch.

As I watched the minutes tick by until I was called in to pitch, I wasn’t thinking about my book and the improbable, poignant, and witty (I hope) love story I had written (that seems perfect for not only a book, but a major motion picture as well!!),  I was thinking about all those times I was sitting in a courtroom watching oral argument, waiting for my case to be called before the court.

Spoiler alert: My pitch went well and the agents asked for my manuscript!

Woody Allen said 90% of genius is just showing up. What he meant (I think) is that you have to turn your great idea into something. That action: of thinking about it to doing it and finishing it is where most people fail. I have met dozens of lawyers who want to write a book. I’ve written two. Now I have to sell them. And finish my current project, while doing final edits and pitches on the first two. 

It took hours of negotiating with myself  to set aside the time from my family to sit down and write. I started by writing in the Coral Gables Library on Saturday afternoons.

Computer, Ipod, thermos of coffee, sandwich, power cords, cell phone, ear phones; Check, check, check down the line. I’m ready to go.

 I find a comfy stuffed chair in the back of the library. I spread out my stuff. Open my computer. “It was the best of times. It was the worst of times.” There I sat, the greatest nightmare a writer has: a blank screen and all the time in the world to write. The rubber is meeting the road. It’s now or never. It’s like standing up to give a closing argument after a close-fought case. I’ve been training my whole life to do that. I’ve done a good job taking apart the prosecution’s case, but now the prosecutor has fixed a lot of it during their closing argument. The jury is looking at me. They like me, they understand my case. Now is the time. They are waiting for my first words. (Aside to trial lawyers- this is the time you NEVER thank the jury and spend a few minutes telling them how much you appreciate their service. Do that and you’ve wasted their attention at a critical moment. This is the time you say the legal equivalent of “It was the best of times, it was the worst of times.”)

I wasn’t worried about a great opening line for the book. I figured once the novel took shape I could always go back and add something (Which I’ve done about a dozen times, the end result being "The problem with this week is that it turns out I suck at math." ). This was just about writing. “Writers write” I kept telling myself. So I started to write- One. Word. At. A, Time. 

 I was about fifteen pages into the story when I wrote a line that made me laugh out-loud. To this day when I see it or think of Dan (the lead character in my novel) saying it, I still smile.

From that moment, the story was there and all I had to do was get it on paper. It was still a frightening time, but less so. Dan and Daphne (Dan’s love interest) were in my head. They were talking to me all the time, even when I was in court and couldn’t listen. It was always the same battle: fight for time to write, sit down, open the computer, stare at the screen, and realize this was the time I needed to do what I promised myself and my wife and my kids I would do: write.

It’s scary. It’s not as scary as when a jury walks into the room about to give a verdict. But it is still frightening. At some point, a few hundred hours and a hundred and fifty pages into the book the fear of “who in the world is going to like this? pops up and won’t go away. Now the battle is, should I finish? Is it good?

  

It’s like when I was a teenager in the Florida Keys sailing from Key Largo to Bimini. Point the nose of the boat north-east, and take off. The island is over the horizon. There’s the gulf-stream current to contend with, plus weather. But to get to Bimini (back then) you had to take a leap of faith in your dead reckoning navigational abilities. There was no GPS. I had to have faith to get to the unseen.

The same with the middle of the novel. Am I wasting my time? Who will read this? Shouldn’t I be at a yoga class, or taking the kids to the park? Something with immediate and tangible results.

This is where Dan and Daphne take over. They wouldn’t let me stop. They had a story and they demanded that I tell it, for better or worse. They let me into their lives and I owed them a finish. Not only that, but they wouldn’t leave me alone. “Dan drives that car” I would say when I saw his car on the street. “They went on their first date at Books and Books in the Gables” I would think as I drove by.  “Daphne hates the high prices in the HOV lane” I would mutter when I was going somewhere at rush hour and the fee was five bucks to use the express lane.

At some point the story over whelmed the fear and I finished the novel. And it’s a very good one, if I say so myself.

Now, there's only one thing left: share it with others.

Fear and Writing in Miami, Part III: letting other people read my novel.  

FEAR AND WRITING IN MIAMI (Part One)

Albert Brooks wonderful movie Defending Your Life has always been one of my favorites. The movie imagines that after we die we go to a place where a trial takes place (No wonder I like it.). There is a prosecutor and a defense attorney and the person who has died's life is examined as a series of video clips showing incidents in their life are played. The issue at trial is whether the person has overcome fear allowing them to move forward in the universe. 

 Being an Albert Brooks movie, there is plenty of humor, including scenes where when Brooks-who plays the lead character whose life is being examined- wanders through Judgment City during the hours the trial is in recess. Because everyone is dead, they can eat as much as they want without gaining weight. Talk about heaven. There is one scene where Brooks is shown circa 1975 deciding not to invest in an unknown watch company from Japan called Casio and instead invests in some cattle. When asked what happened, Brooks says he never found out what went wrong with cows other than "all their teeth fell out."

The movie has a strong message: fear in our lives can be debilitating. Every day in my job as a criminal defense attorney I help my clients, some of whom are being prosecuted by the most powerful entity in the history of the world  (No, not Apple, The United States Government) face the fear of what could happen to them. Many times over the course of the years that I work with clients I naturally find myself being drawn to the many positive aspects of their personalities, and yes, this includes clients who have been accused of doing awful things. However, to successfully represent my clients in court during hearings and trials I have to put aside my fear of what will happen to them if I fail. The case isn't going away without me making that happen, so I can't walk into court feeling the fear they feel or I will be unable to represent them.

This is easier said than done. I've known this "secret" about criminal defense for the last thirty years or so. But it never gets any easier which is why my profession unfortunately has a high rate of drug abuse and alcoholism (and in my case chocolate chip cookie addiction.) 

And now I find myself facing perhaps the biggest fear of my life. It has nothing to do with my work or my personal life. 

For as long as I can remember, I've wanted to be four things in my life: Right Fielder for the Pittsburgh Pirates, a commercial fisherman, a trial lawyer, and a writer.  Two I've done (the middle two); my time is past for playing for the Bucst, and just maybe my time has arrived at the last: being a writer. 

Blog posts should be able to be read in a few minutes at most. 
So check back for part two of Fear and Writing in Miami. 

PLR

IT FEELS GOOD TO WIN

Some of my work involves representing indigent defendants for the Office of Criminal Conflict and Civil Regional Counsel for the 3rd Region of Florida. I am privileged and honored to have this position for this remarkable agency run by Gene Zenobi, a great lawyer and a great man.

 Many people charged with a very serious crime do not have the funds necessary to hire a private defense attorney. My work for the State of Florida allows me to handle those serious cases.

While I am primarily known as a trial lawyer, I have for at least the last decade handled criminal appeals as well. As I tell lawyers that I work with, doing an appeal makes you a better trial lawyer, and doing a trial makes you a better appellate lawyer.

In the last few years the United States Supreme Court has admirably moved the needle in the area of juvenile sentencing. In a landmark case in 2010 - Graham v. Florida - the court held  that juveniles convicted of non-homicide offenses cannot be sentenced to life in prison. The Florida Supreme Court followed the reasoning of Graham in 2015 in Henry v. State.

After the decision in Graham, some Florida judges engaged in the sad practice of re-sentencing juveniles who had their life sentences vacated under Graham, to lengthy terms of years that were not life in prison. In the case I handled, the trial judge re-sentenced my client for a series of robberies to 85 years in prison with one thirty year sentence to be served consecutive to another thirty year sentence consecutive to a ten year sentence consecutive to a five year sentence. It was, in my opinion, an intellectually dishonest sentence since my client could not reasonably be be expected to outlive his sentence.

The reasoning in Graham was that juveniles do not have the capacity to make informed decisions. Juveniles often act in rash and irrational ways. Their brains are not fully formed and they do not fully comprehend the repercussions of their actions. The Graham court also reasoned that juveniles are more susceptible to rehabilitation as they age.

In Henry, the Florida Supreme court applied the Graham decision in striking down a sentence similar to the case I handled. The court in Henry stated that a juvenile's sentence must provide "a meaningful opportunity for release."  In my case, the Third District Court of Appeals held that a sentence of 85 years does not provide a meaningful opportunity for release, much less a sentences structured in the onerous way the trial court fashioned my client's sentence.

Twenty years ago I watched helplessly as a woman I loved died of ovarian cancer. Her doctor was a wonderful oncologist. A young man full of fight and passion and skill. And yet, as I spent more time in his facilities watching people get chemotherapy, I realized that many if not most of his patients died. As a professional, I wondered how he did it? How could he keep fighting for patients that he knew in his professional experience would more than likely die?

My work at Regional Counsel frequently brings me into contract with people charged with the death penalty. My experience tells me that even if we succeed in avoiding the death penalty, the client will most likely spend the rest of his or her life in prison. For me (unlike the way many of my other colleague in this field view a death penalty waiver) I consider this a loss.  I don't and can't accept life in prison as a win. I refuse to accept such an outcome. I put one foot in front of the other and litigate the case to the best of my ability, and sometimes, like the decision I received today- I win.

I now have a better understanding of how that doctor did his work. The wins carry you through.

Here is the decision of the 3rd DCA. 

Thanks for reading.

PLR.

ALL THAT I HAVE LEARNED

Today I am 53 years old.

Here is all I have learned. 

First and foremost, 95% of life’s problems arise through poor communication. We don’t listen to each other. We talk over each other. Practice listening the next time you are in a business discussion or other serious matter. You will pick up a lot of useful information and you will find just letting the other person speak uninterrupted does wonders for them. 

That the music of the 60’s and 70’s is the greatest that ever was or will be.  Except for Sinatra and Springsteen. Sinatra was timeless and Bruce got better with age, as impossible as that seems. 

That Franco made a legal catch in what we call the Immaculate Reception and I love the fact that it still bothers John Madden all these years later. 

That 1979 was the best year ever to be a Pirate and Steeler fan. 

That Theodore Roosevelt’s “Man in the Arena” speech is the best possible source of inspiration and comfort to a trial lawyer. We win. We lose. But we are in the arena …

The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat. 

That Chocolate Chip cookies and Orange Juice are my (not so) secret vice. Try it. 

That I learned long ago never to draw to an inside straight, a flush with a pair on the board, or the ass end of a straight or boat. And I make tons of money off of poker players who never learned those lessons.

That Hyman Roth was right: health is the most important thing, and that your partners should always make money with you. 

That no storage unit is worth the junk you put in it. It’s an endless sinkhole of money. Avoid them at all costs. 

That I will never see a baseball player who had more passion and grace and élan than Roberto Clemente. But Cutch is pretty great to watch these days and Polanco reminds me at times of the great one. 

That while writing a book is hard, publishing it is the scariest thing I will ever do. 

That the lesson from Many Lives Many Masters was 100% correct: fear is the biggest impediment to success in life.

That while youth is wasted on the young, parents can lessen the impact of that.

That throwing a lure into calm waters and seeing a fish break on it is a thrill I will never get tired of. 

That in my mind at night I stretch that double into a triple and slide head first into third and then causally get up and dust off the dirt, just like Burt Lancaster said in Field Of Dreams.

And that the only line in a movie that ever made me cry, and always will make me cry is when Kevin Costner says “Dad, wanna have a catch?” at the end of  Field Of Dreams. And that’s a good thing. 

That I’m glad I was watching when Willie hit a home run in game seven off of Cuellar’s curveball in 79. Good things do happen to good people. Willie deserved that. 

That after all those decades of lifting weights and pounding on a spin bike, that yoga is the answer. It calms the mind and heals the body. 

That at age 53, I know one thing for sure: that the good lord blessed me beyond my wildest expectations with the two best boys any father could want. They have the greatest mother, and all I want is for us to watch them grow into men. 

I think I’ve learned a lot.

PLR.

A DEATH SENTENCE

 Two  weeks ago I stood next to a man who was sentenced to death.

Never did that before. Never want to do that again.

The circumstances of how that occurred are somewhat unique.

During the past two weeks friends in the courthouse who saw the picture of me next to the defendant and story in the Herald have been coming up to me offering words of condolences.

Nobody really understands the circumstances of how I found myself in court next to a defendant I had met only a few days before, acting as co-counsel as the court sentenced him to death  

The defendant was represented through trial, where he was found guilty, and through the penalty phase where the jury recommended death, by the Dade County Public Defender’s Office. After the penalty phase was concluded, a conflict developed and the Public Defenders had to withdraw. And when I use the term conflict, I am using it in the legal sense, not that the defendant was angry at his lawyers. He was not.

So the court appointed my trial partner Kellie Peterson and myself to essentially stand next to the defendant while the court handed down the sentence.If you know Kellie and if you know me, you know we were not going to just stand idly by. We filed what motions we could to stop the process, primarily relying on the fact that the United States Supreme Court is going to decide next October if Florida’s death penalty sentencing scheme, which allows for a non-unanimous jury to make a recommendation of death, is constitutional ( it is not constitutional-  a subject for another blog post, and  if Justice Scalia happens to read this, I will get that one up soon. Promise.)

So there Kellie and I stood as the trial judge went through the litany of very difficult facts of the murder in this case.  But I wasn’t standing right next to the defendant. Edith Georgi, who was the defendant’s lawyer through the trial and for the last several years stood next to her former client. She couldn’t technically represent him anymore, but she was there.

For those of you who don’t know Edith Georgi, let me make it simple- she is as fine a death penalty defender as there is in the United States. Period. She kicked my ass in a murder case when I was a prosecutor many years ago (I often wonder if she remembers that. I do. )

As the judge went through the specific acts,  she included in her sentencing order a fairly stirring and stinging  denouncement of the defendant's acts, Edith was there rubbing her former client’s back, whispering in his ear to be strong, and being as compassionate as a person-lawyer  can be.

I can’t get this scene out of my mind. The judge intoning the very horrible acts the defendant was convicted of committing, and Edith touching him and telling him to be strong and that it was going to be okay.

When the judge, in a biting comment, mentioned that the defendant had been a very religious person, leading bible classes in jail, and then said “but you forgot the commandant ‘Thou Shall Not Kill’ ”, I could feel the judge’s eyes burning into my client. I leaned over to Edith and whispered “She’s wrong. The sixth commandment says ‘Thou shall not commit murder’. The bible is full of instructions to kill.”   I briefly considered objecting, before deciding that in this instance discretion was the better part of valor considering that the defendant had in fact been convicted of murder. The death-sentence train was roaring down the track we were tied to. I could see it’s malevolent lights in the distance, growing stronger with each sentence of the judge’s order.

It’s easy to be compassionate to the most vulnerable amongst us- the homeless family, the sick child, an accident victim.  But how much harder is it to show human compassion towards someone who by all rights doesn’t deserve it?

But what Edith and Kellie and I know from a lifetime spent in these types of cases is that beneath the tattooed, hulking, frightening exterior of this convicted killer is a human being, who was once an innocent child, and who somewhere, in someway, went terribly wrong.

As Jesus said: “love the sinner, not the sin.”

Bless you Edith for those simple acts of compassion. I know they meant a lot to your client.

There is nothing heroic in defending the un-defendable. I reject that notion that some of my fellow criminal defense attorneys often wrap themselves in as they commiserate their losses. Quite frankly, it stinks. It’s awful. It wakes me up in the middle of the night and I stare at the ceiling in the darkness thinking sometimes of my client’s victims. Other times I wonder where my client went wrong- what moment in their life turned them from a normal human being who values life, into someone who committed a horrible crime?  And then invariably the questions about myself. Why am I representing them? Why don’t I just devote my trial skills to suing insurance companies? I could make a lot more money.

Each of us in this field has our own reasons for why we do what we do. I won’t speak for my colleagues. But in that windowless courtroom a few weeks ago, when I saw true humanity- a simple act of kindness by Edith Georgi, a remarkable lawyer and human being, I knew, despite all the pain, the impossible cases, the continuing stream of motions filed and denied,  that I am doing what I am best able to do. I am using whatever talents the good lord gave me, in the best way possible. And for now, (until my books get published ) that will have to be enough.

CHALLENGE EVERYTHING

In the television show House, House- the brilliant but cantankerous diagnostician doctor continually tells the doctors he is training "everyone lies".

And so they do. 

The challenge I face as a criminal defense attorney in every case I accept is not only to determine who is lying, but if everyone is lying, what is the truth? 

The fact that everyone lies was brought home this past week with the revelation that the vaunted FBI crime lab lied on almost every hair analysis case they handled for the past thirty years. In the wake of the scandal are the innocent men and women who were wrongfully incarcerated by junk science. In the last case I read about, the FBI matched a hair to a defendant, testifying that the odds of a match were one in ten million. The testimony turned out to be false.  The hair sample allegedly matched to the defendant was from a dog. About the best you could say about that is "right planet, wrong species."

The simple lesson for myself and my fellow criminal practitioners is to never accept any of the evidence the prosecution puts forward in any case without first investigating and challenging the evidence. Many times, for strategic reasons, I will not care if scientific evidence links a client to a scene. 

Say I am representing a woman who killed her domestic partner and wants me to raise the battered-spouse syndrome in connection with self defense. A fingerprint that puts the client at the scene is probably meaningless in terms of the overall defense. But a good criminal defense attorney examines all the evidence. Even though the client may not deny being at the scene, the ability to show that the prosecution relied on faulty -if not terribly relevant- evidence- is an opportunity many attorneys overlook. So the lesson from this week's FBI hair analysis scandal is to challenge everything. Or as an old, grizzled criminal defense attorney from Brooklyn once told me: "The only thing I waive (wave) in court is the American flag." 

When Lenny Fusfield told me that, I was a young and impressionable law student. It was one of the first lessons in courtroom strategy that I was ever given, and I can count the times I have deviated from that strategy, and most of the time it has been to my regret. 

When House said "everyone lies" he was talking mostly about his patients. In that regard, clients will often shade their version of events, many times to avoid upsetting me.  Clients think that if they tell me exactly what happened I won't want to represent them because of their criminal conduct. This is entirely natural.

But to quote Hyman Roth from the Godfather II "This is the business we have chosen."  As I often tell clients,  "If I couldn't represent people charged with what you have been charged with, I would have stayed being a prosecutor."

When my client's deny involvement in a crime, I want to believe them.  But I do so at my, and more importantly, their own peril.  And yet, as you will see below, I don't believe them at my own peril as well.

The more I know about the actual facts, the better I can help them. 
The more I know about what occurred, the better I am able to determine when police are engaging in, what I call TEJTM investigation: "The ends justify the means". 

I very often see police prevaricate their actions in an investigation because they are "sure" they have the right guy, and they'll be damned if they will let them get off because of something inconvenient like the truth. The best police investigators don't do this, and they are in fact the hardest for me to cross examine, because the truth is the truth and jurors will instinctively trust a police officer who is telling the truth, even if it is to the detriment in the case. 

The worst and perhaps most tragic example of this was my representation of a client in the re-trial of a tragic murder  that occurred in 1989. The client gave a confession, and then spent two decades saying that the police threatened his family and didn't honor his request for an attorney during the interrogation. The client was originally sentenced to death and the conviction was reversed for other reasons. During the second trial the tape of the interrogation surfaced after 20 years, and sure enough the client is on tape asking for an attorney and the police respond by threatening him and his family.  The police, having previously denied at deposition and the first trial what was now clearly on tape, were stuck with their former testimony. It did not go well for them at trial.

Everyone lies.  Except every now and then a client that has every reason to lie, and whom no one believes, tells the truth. And there is the ultimate challenge for criminal defense attorneys: to challenge the police when all the evidence seems in their favor and to believe the client when no one else does. 

It's a challenge. 

PLR.