Former Prosecutor's view on filing decisions in the Second Circuit, Tallahassee, Florida

I made a mistake years ago in not becoming a Criminal Defense Attorney. Don't get me wrong, I did my job as a public servant and did it well. With the exception of the last few years under Mr. Meggs, I loved my job. Nevertheless, I receive such satisfaction in working in the current office as a Defense Attorney, as someone helping others.
Years ago a great man, Harry Morrison, believed that prosecutors should be cautious in filing charges. "With the stroke of a pen, you can ruin an innocent persons life", is a paraphrase of Mr. Morrison's philosophy (God Rest his Soul). Today's Office here in the Second Judicial Circuit could be characterized as a "Rubber Stamp" mentality. There are very few prudent, experienced prosecutors left in this judicial circuit and those left are given no independent discretion in handling their cases. This is a tragedy, a danger to our Constitution and our local community. Quite simply, it is sad.
The perspective and privilege of having worked for one of the finest elected State Attorneys in the State of Florida, E.J. Salcines (who just retired from the Second District Court of Appeals) and having retired from our local circuit here in Second Judicial Circuit, gives me the experience and the knowledge to comment on filing decisions made in the Second Judicial Circuit. I know this may be a controversial topic as well as ticking some people off with my opinion, so be it.
I currently work for The Law Offices of Don Pumphrey, Jr. located in Tallahassee, Florida (http://www.donpumphrey.com/ the founder also has his own blog spot you should check out http://www.tallahasseecriminaldefense.blogspot.com/). I am the senior attorney in the firm and provide my wisdom and knowledge to everyone in the office. Don and I work as a trial team and we enjoy facing the challenges of trial practice together.
If you have not figured it out, yes, I am Italian and proud of it! Since leaving the local State Attorney's Office my bald head has filled with hair (Don (Don Pumphrey, Jr. http://www.donpumphrey.com/) says I must have some form of secret Italian Olive Oil that makes my hair grow). My love of practice of law has returned and I am disappointed with what I see as far as filing decisions with the local office.
Many years ago, I personally researched, designed, wrote, drafted and implemented the intake system for the State Attorney's Office here in the Second Judicial Circuit http://www.co.leon.fl.us/statty. Much to my disappointment, none of the protocols nor caveats implemented by me years ago are being followed. Why does this bother me? Easy, it allows for unfettered discretion for law enforcement without being questioned about specific facts or omissions of facts, fosters sloppy investigative work by law enforcement, fails to test the credibility of fact witnesses pre-filing, encourages exploitation of evidence and/or inadvertent destruction of evidence (i.e. video tapes, other fact witness information, etc.). This list intern creates a higher filing rate, further creating a burden on an already crippled Criminal Justice System.
I encourage discussions on this topic. If you wish to contact me directly, you can email me Anthony@donpumphrey.com .
Posted by Anthony S. Guarisco, Attorney at 9:43 AM

The posts contained in this blog are not intended as legal advice for any specific situation. You should always hire an aggressive attorney with more than 100 jury trials and whom goes to trial every year. There is a difference between someone who will go to trial. Someone who will fight if your are charged in Tallahassee, Florida, Crawfordville, Florida, Quincy, Florida, Perry, Florida, Marianna Florida, Live Oak Florida, Madison, Florida, Lake City, Florida, Apalachicola, Florida, or any of the following counties: Leon, Jefferson, Wakulla, Gadsden, Liberty, Calhoun, Bay, Gulf, Franklin, Taylor, Madison, Dixie, Holmes, Washington, Panama City, Florida, Panama City Beach, Florida for Arrest, Charges, Jail, DUI, Drunk Driving, Driving While Intoxicated, Possession Charges, Trafficking Charges, Drug Possession Charges, Murder, Gun Charges, Firearm Charges, Battery, Aggravated Battery, Aggravated Stalking, Stalking or any State Criminal Charge in the State of Florida.

How Breathalyzers work (and why they dont)

Here is a post by Lawrence Taylor out of California which is a little dated but worth posting because it still rings true today (with great hyperlinks):

Posted by Lawrence Taylor on May 6th, 2005
Did you ever wonder how breathalyzers work? There is a website which will give you a pretty fair idea. But first, let’s clear up some confusion….
There are many different kinds of “breathalyzers” — or, more accurately, there are many kinds of breath testing devices. The first of the modern breath testers, manufactured by Smith and Wesson many years ago (yes, that Smith and Wesson), was called the Breathalyzer. Since then, various manufacturers have recognized the growing market and come out with their own models, bearing such names as Intoxilyzer, Intoximeter, DataMaster, AlcoSensor, Alcotest and so on; most of these products have been produced in different model versions, such as the Intoxilyer 4011, 5000 and 8000.
To deal with the confusion, the term “breathalyzer” came to be used as a generic term for any breath testing instrument. (To confuse things further, a German company — Draeger — bought the rights to the Breathalyzer brand and have sometimes used that name in some of their models.)
Most of these are evidentiary machines — that is, larger machines generally kept at the police station whose test results are used in evidence. Others are smaller, handheld units carried by officers in the field; generally called PBTs (preliminary breath tests) or PAS (preliminary alcohol screedning), these are less accurate and are usually used as a field sobriety test to help determine whether to arrest a suspect.
The original Breathalyzer operated using a wet chemical method of analysis, employing a disposable glass ampule of chemicals. Although still occasionally found in law enforcement, this relatively primitive technology was replaced in later machines by infrared spectroscopy, gas chromatography or, mainly in handheld units, fuel cell analysis; a couple of the more recent machines use a combination of infrared and fuel cell.
Now that this has been cleared up, you might want to visit the following sites to understand the actual workings of these gizmos:
Chemical (the Breathalyzer) Infrared spectroscopy (the Intoxilyzer) Fuel cell (the Alcosensor)
Note: Gas chromatography is rarely encountered anymore, as it was primarily used in the discontinued Intoximeter 3000.
Note #2: To further understand why these machines aren’t nearly as accurate as law enforcement would have you believe, visit a few of my previous posts:
Breathalyzers — and Why They Don’t Work Breathalyzer Inaccuracy: Testing During the Absorptive Stage Breathalyzer Inaccuracy: Post-Absorptive Breathalyzer Inaccuracy….It Gets Worse “Close Enough for Government Work” Why Breathalyzers Don’t Measure Alcohol How to Fool the Breathalyzer Breathalyzers and Radio Frequency Interference Breathalyzers: Why Aren’t They Warranted to Measure Alcohol?

The posts contained in this blog are not intended as legal advice for any specific situation. You should always hire an aggressive attorney with more than 100 jury trials and whom goes to trial every year. There is a difference between someone who will go to trial. Someone who will fight if your are charged in Tallahassee, Florida, Crawfordville, Florida, Quincy, Florida, Perry, Florida, Marianna Florida, Live Oak Florida, Madison, Florida, Lake City, Florida, Apalachicola, Florida, or any of the following counties: Leon, Jefferson, Wakulla, Gadsden, Liberty, Calhoun, Bay, Gulf, Franklin, Taylor, Madison, Dixie, Holmes, Washington, Panama City, Florida, Panama City Beach, Florida for Arrest, Charges, Jail, DUI, Drunk Driving, Driving While Intoxicated, Possession Charges, Trafficking Charges, Drug Possession Charges, Murder, Gun Charges, Firearm Charges, Battery, Aggravated Battery, Aggravated Stalking, Stalking or any State Criminal Charge in the State of Florida.

Evidence does not fit? Alter it?

The above book, and many others displaying empirical information of what occurs as a result of misconduct in which every responsible citizen should and must read before even entertaining judgment on facts presented by the State, Newspaper or even an alleged eyewitness: http://www.truthinjustice.org/books.htm .

The title of this post comes from an article regarding alleged misconduct leading to conviction of innocent citizen. http://truthinjustice.org/jamesochoa4.htm .

Keep in mind that you cannot see the majority of the iceberg.

http://www.donpumphrey.com/

http://www.duidon.com/

DUI in Florida: Slot machines are more important? Lawrence Taylor says it best!

DUI Defense is many times a thankless job. Drinking is looked down upon by a religious right. Once positive organizations, such as MADD, now use this as fodder to further an out of control agenda which influences jurors, judicial officers and prosecutors alike. Of recent, there is a great movement for truth in this country. Not a fabricated truth, but "The Truth" and not ommissions nor misleading information. http://en.wikipedia.org/wiki/Lie . Check out Attorney Lawrence Taylor's latest blog post: http://www.duiblog.com/2008/12/29/which-are-more-important-breathalyzers-or-slot-machines/. If so much is put into slot machines, why not machines that run on the same or similar technology given more stringent checks and balances?

I am appalled that the State of my birth, Florida, is playing games with the source code of the intoxylizer machine. They pretend not to own or have knowledge of the very essence of what determines, in many circumstances, a permanent blemish on a young persons (or any persons) life. It saddens me that good people are mislead and flat out deceived by our own state government.

I dont personally know Attorney Lawrence Taylor (although I have personally met him). I first met Lawrence Taylor in Austin Hall at The Harvard University, Cambridge, Mass. , where the National College for DUI Defense presents their annual meeting. Year before last he gave the final speech and it was impressive to say the least and inspired everyone in the room. Why we do what we do, captured my heart and my attention. I follow his blog and give you the link so you may follow as well.

Police Encounters, what every citizen, student and spring break(er) should know.

I am asked on a weekly basis, "what should I do if the police stop me?". Well here is a little information I acquired through this evenings research.

After preparing for the week of hearings and trials (http://www.donpumphrey.com/), I started doing random research (surfing) on the web and came across a clip from YouTube (http://www.youtube.com/) http://www.youtube.com/watch?v=eDJrQBwJpqk. The clip is from an organization called Flex Your Rights.

From an educational standpoint, visual re-creations or re-enactments can many times emphasize what one should do, how to do it, and most importantly what not to do in a given situation. My practice is located in Tallahassee, Florida where we have two major universities (Florida Agricultural and Mechanical University: http://www.famu.edu/and The Florida State University: http://www.fsu.edu/ as well as a very large community college in Tallahassee Community College:http://www.tcc.fl.edu/) and a collection of school districts: http://www.leon.k12.fl.us/; http://www.gcps.k12.fl.us/ ; http://www.blogger.com/www.wakullaschooldistrict.org/ ;www.franklincountyschools.org/; http://jefferson.k12.fl.us/; http://www.lcsbonline.org/.

Every citizen should closely study the clips from the DVD "Busted" on the website Flex Your Rights (http://www.flexyourrights.org/). Although this is a short blog for this evening, you should forward this post to absolutely everyone you know and everyone who has children in high school or college. It will undoubtedly give them a correct perspective on how to behave and what NOT to do if they have an encounter with the police. http://www.youtube.com/watch?v=uV0g5B1blqk&eurl=http://www.flexyourrights.org/busted/movie_clips&feature=player_embedded

I like the clips because it exposes many tactics or tricks used, by a highly skilled and thoroughly trained officer, on the unwary citizen to gain access to that which is protected by both the Florida Constitution and the United States Constitution. We have better health if we exercise, we will have a better country if we exercise . . . our rights!

Your rights cannot help you if you fail to exercise them!

Violation of Probation, Prison on Lay Away?

Its a setup! A trap! A tool to get a solid lock on a guaranteed extended stay at the Department of Corrections Express?

Maybe?

In talking this afternoon with one of my respected colleagues, a ballsy trial lawyer in the Law Firm of Bollinger and Anderson http://www.pcnotguilty.com/ (hint: Lisa Anderson) the issue came up about a case where a prosecutor is trying to make a sweetheart offer to admittedly overcome the suppression problems only to prevail later on the violation of probation. This discussion motivated my (http://www.donpumphrey.com/) ranting for the evening in the form of this blog.

As with everything in the practice of law, the answer always begins with, "It Depends".

History tells us that the Florida Department of Corrections began in 1821 (http://www.dc.state.fl.us/oth/timeline/index.html ) and has evolved to present day "warehousing" instead of Rehabilitation.

Probation is the lay away program for (in many instances) the State of Florida.

Probation officers, as a whole, are underpaid, under appreciated and down right understaffed. Heck, they are State Employees. Probation officers attempt to perform their job within the guidelines set out by whom ever (current Secretary of the Florida Department of Corrections is Walter McNeil http://http//www.dc.state.fl.us/) is the currently at the helm. It seemed like some time ago you could not complete probation. Neither Gandhi nor Mother Theresa (with all due respect to both) could complete simple state supervised probation (we will not even address house arrest or felony drug offender probation) http://www.dc.state.fl.us/facilities/comcorinfo/definitions.html (go to this site for definitions involving community supervision)http://www.dc.state.fl.us/facilities/comcorinfo/general.html (this cite has frequently asked questions about certain aspects of probation). Do probation officers receive telephone calls and emails from the prosecutors? Absolutely! Do probation officers listen to prosecutors who call them? You figure it out. I often question communications between prosecutors and probation officers on the front end (front end meaning when a person is placed on probation as opposed to the back end (no pun intended in reference to prison life) when an affidavit of violation is filed to acquire a warrant for the probationers arrest. Nevertheless, the probation officers and the department are very concerned with misconceptions of probation http://www.dc.state.fl.us/oth/ccmyths.html.

For example, every person on felony probation with the State of Florida is required to submit to drug testing http://www.dc.state.fl.us/pub/annual/0607/randomdrug.html. Seems simple enough.

Testing reveals that the only person determining the result (many times) is the one dipping the "stick". However, they have never published nor produced the data on false positives and in many instances it is the word of the probation officer (his or her interpretation of the data) that determines the next 5, 10, 30 years of a probationers freedom.

Why? Your reading this, go to the hyperlinks and you will figure it out. Its all about the "Lay Away" Program. Moral: avoid probation in most situations or reserve the guest sweet at the DOC Inn Express.

DUI? DRUG ARREST? Keeping your mouth shut is not lying!

I love this picture of Abraham Lincoln with his mouth shut in total silence. I am new to blogging, SO here goes nothing.

Tony Guarisco and I were talking yesterday in the firm Law Offices of Don Pumphrey, Jr., http://www.donpumphrey.com (which is dedicated to being an aggressive CHECK in the "Checks and Balances" of our State Criminal Justice System), when Tony stated,"I'm going to write a book called, "Keep your mouth Shut".

In honor of my respected colleague and friend's idea, I decided to make my first blog an effort to plant the motivational seed and share my thoughts on the issue.

Clients, Potential Clients, Young Attorneys, Old Attorneys and Attorneys who have no business handling a criminal case, many times appear surprised to hear me say, "Lying, under any circumstances, is taking a bad situation and making it worse". Few persons are smart enough to keep quiet when being questioned by another person (who, by the way, does not necessarily have to be a cop) for the statements to come into evidence and used as a tool to show consciousness of guilt.

The knowledge to remain quiet and the ability to remain quiet are two separate traits. Many people know from television and other media that they should not talk to the police. However, we are all ingrained with the idea that, "the police are our friends". Yes, I too had those elementary teachers, high school teachers, parents and peers who parroted this "police are our friends" phrase. Reality: they're not! Nevertheless, this ingrained learning drives some persons to attempt to talk their way out of a situation (usually by lying), or trusting the police will see the truth and do a thorough job, thereby saving them the "ride" or the gauntlet of the State Criminal Justice System. Wrong! In fact, many times I have had officers admit on the stand that they "told" (for those of you outside the criminal defense arena this is vernacular for "THREATENED") Mr./Mrs./Ms. J.Q. Public that if they refuse to cooperate (next translation: Exercise your fundamental rights under both the State and Federal Constitutions) that they would be forced to make a decision (arrest) based on the lack of information (translate: what they know to this point).

Coercion breeds the feeling that if I don't tell them something, I am going to jail. Coercion makes the person feel as though if they keep their mouth shut they are "lying". News Flash: remaining silent cannot be used against you. Keeping your mouth shut is not lying!

Call their bluff. Take the ride. Keeping your mouth shut is not lying!