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