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The Role of Anticipation in the Courtroom

If you could somehow read the mind of opposing counsel and anticipate their every argument, would you? On some level, you may be privy to the opposition’s case through their brief and/or disclosure of evidence, but being able to predict what they will say is impossible, or is it? In sport, an athlete’s ability to predict their opponent’s next move is what differentiates a novice from an expert, and the same is true in the courtroom. Think about the expert performers you know, such as a trial attorney who seems like they are reading their opposing counsel’s mind or a defensive end who intercepts the ball as if it was being thrown to them. What do these examples have in common? Anticipation refers to one’s ability to utilize a prior event to help predict subsequent ones (Merriam-Webster Online, n.d.). In a study done with soccer goalkeepers, researchers found that when presented with a film of penalty kicks, expert participants were more accurate at preventing the goal from going in (Savelsbergh, Williams, Van Der Kamp, & Ward, 2002). Although a courtroom is dynamic and constantly changing, similar to the soccer goalkeepers, there are some tools you can use to help you anticipate your opponent’s next moves.

First, a minor caveat, even if you practice you can’t control the opposing counsel. In football, the practices before each game are spent playing against a practice team whose job is to mimic your upcoming opponent. The practice team is supposed to help the team learn about the tendencies of the opponent so they can be prepared for the likely plays. Despite this practice, teams still lose. Just like in a courtroom, the other team may come up with something you never prepared for or didn’t think was likely to come up. As I alluded to earlier it is impossible to predict with 100% accuracy what another person will say or do. You are only in control of yourself and your own actions. So remember, all you can do is practice and be as prepared as you possibly can. These tips can help you anticipate your opponent but it isn’t foolproof. Learn from the missteps that happen. You may face that opponent again and the next time you do, you will be armed with more knowledge about how they work and will be better able to anticipate them.

Tips to Aid in Anticipation

First, practice! Try to make your practice as ecologically relevant as possible. If you can, go back to your early days of law school and create your own mock trial. Practice in a courtroom where you plan to give your opening arguments and defend your case against colleagues or peers. Also, consider recalling previous case law without the aid of a book, you likely won’t have the one you need in court anyways so why practice with one? The reason for reverting to law school practice is simple, the more you practice this way the more your brain builds up long term working memory stores. This type of purposeful practice makes it easier for you to recall information in the future. For example, in a famous study by Simon and Chase (1973), chess players were able to recall where all of the chess pieces were oriented on the board after only being presented with the image for 5 seconds. The many years of practice lead to enhanced pattern recognition that allowed the players to recreate the image using procedural memory of the likely spaces that the chess pieces would be. Incredibly, expert chess players were able to do this even when the chess pieces were in illogical order. Mock trial practice essentially does the same thing by creating a procedural memory of likely outcomes that can aid you in anticipating your opponent.

Another tip for honing your anticipation skills, is to review recorded trial footage of cases. Pause the tape at key points and try to predict what argument the attorney in the video will make. Pay attention to the cues you receive from the video to help you surmise a likely outcome. While the cases may not be directly applicable to the case you are working on, research has shown (Smeeton, Williams, Hodges, & Ward, 2005) that the act of discovery learning can help you to acquire better anticipatory skills. Furthermore, by using this tactic you can improve upon your creativity skills and learn to focus on relevant audio cues which transfers to the courtroom.

Lastly, plan! This tip goes back to the importance of having a good pre-performance routine. The more prepared you are, the more confident you will be when you enter the courtroom. I’m sure it will come as no surprise to you, that you should first orient yourself with the previous case law and decisions when planning your arguments. Also, examine the cases that could be used against your arguments and come up with ways to dispute them. By doing this, you will be ahead of the game if the opposing counsel tries to provide counters to your argument. Once you’ve done this try rehearsing your opposing counsel’s arguments. What would you do if you were them? What case laws would you cite? Getting in the mindset of your opponent using this practice can help you anticipate their likely steps.

 

References

Anticipation [Def. 1]. (n.d.) In Merriam-Webster Online, Retrieved March 16, 2017, from

https://www.merriam-webster.com/dictionary/anticipation

Savelsbergh, G. J. P., Williams, A. M., Kamp, J. V. D., & Ward, P. (2002). Visual search,

anticipation and expertise in soccer goalkeepers. Journal of Sports Sciences, 20, 279-287.

doi:10.1080/026404102317284826

Simon, H.A., & Chase, W.G. (1973). Skill in chess. American Scientist, 61, 394-403.

Smeeton, N. J., Williams, A. M., Hodges, N. J., & Ward, P. (2005). The relative effectiveness of various instructional approaches in developing anticipation skill. Journal of Experimental Psychology: Applied, 11, 98-110. doi:10.1037/1076-898X.11.2.98

PhD Student in Sports Psychology at Florida State University. Ashley Fryer.

 

Note: This essay was written by Ashley Fryer, PhD Student in Sport Psychology at Florida State University. amf13d@my.fsu.edu

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Pensacola Group Suggests Major Change to Florida’s Sex Offender Registry Program

Right to Remain Silent in Florida

A Florida advocacy group has proposed that Florida legislators make a major change to their sex offender registry program. With over 65,000 sex offenders currently registered on Florida’s state registry, this list includes offenders charged with minor offenses such as indecent exposure and those charged with more serious crimes such as sexual assault.

The Florida Action Committee suggests that a lack of categorical differences for different level offenses fails to fulfill the purpose of the registry list. FAC argues that with a lack of separation in varying offenses, the Florida sex offender registry is ineffective in alerting citizens of the most potentially dangerous individuals in the community.

The group argues that Florida should separate the sex offender registry into three separate categories organized by the likelihood of the individual committing a repeat offense.

Florida’s State Attorney’s Office appears to be in opposition of FAC’s registry re-organization idea, arguing against the necessity of the changes by mentioning that individuals convicted of the most serious sex offenses receive much longer prison sentences than those charged with lesser sex crimes.

Criminal Defense Attorney in Tallahassee, Florida

If you were arrested and charged with a sex crime or another related criminal offense, contact the offices of Pumphrey Law at (850) 528-1047 to schedule a free consultation with a qualified criminal defense attorney. Call today to get started on your defense.

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Florida Lawmakers Seek to reduce Penalties for Juvenile Offenders through Citations

CuffedBackSweater

As of February 2, 2017, Senate Bill 196 is circulating Florida’s Senate. Senate Bill 196 aims to provide a less stringent alternative for juvenile offenders charged with minor or first-time offenses. Under Senate Bill 196’s proposed penalties for eligible misdemeanors, juvenile offenders found committing any of the offenses provided under this Bill will be provided with a citation in lieu of an arrest and subsequent jail time.

Some of the eligible offenses provided under Senate Bill 196 include theft, trespassing, loitering and prowling, disorderly conduct, possession of cannabis in the amount of 20 grams or less, underage alcohol possession, and a host of other misdemeanors.

In a similar vein, sixty (60) counties throughout Florida have adopted some form of a citation program replacing arrests with citations for eligible offenses. However, despite eligibility for these programs, only a fraction of affected juveniles were provided with a citation instead of an arrest. Florida lawmakers hope to create a uniform system for this citation program, thus introducing the possibility of an alternative to incarceration centered penalties.

After modifications have been made to comply with the Florida House’s wishes, Senate Bill 196 is expected to be up for a vote.

Tallahassee Criminal Defense Attorney

Are you a juvenile offender or the guardian of a juvenile offender who has been charged with a criminal offense? If so, contact the Pumphrey Law Firm at 850-681-7777 to schedule a free consultation with an experienced criminal defense attorney to discuss your options under Florida law.

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Florida Passes New Laws to Combat a Growing Abuse Problem

Pills2

Following the 2016 election, Florida has passed several laws aimed at reducing Florida’s growing prescription drug and over-the-counter drug abuse problem. Some these laws are aimed at healthcare policies and their respective benefits. With the rising number of opioid addiction cases in the state of Florida, Florida legislators have taken steps to limit this growth, and reduce the number of drug abuse incidents in Florida.

Effective January 1, 2017, Senate Bill 422 (SB 422), provides that any health insurance policy which provides coverage for opioid painkillers is not permitted to mandate usage of unlabeled opioid products over FDA approved deterrent-abuse labeled opioids.

Additionally, SB 422 states that only those insurance policies requiring pre-authorization for opioid painkillers without an abuse-deterrent label are permitted to enforce the same pre-authorization requirements for deterrent-abuse labeled opioid painkillers

In addition to the race to reduce opioid abuse, Florida legislators have also made strides to prevent drug abuse by enforcing tighter restraints on the distribution of dextromethorphan to minors. Dextromethorphan is a component in many over-the-counter drugs including popular cough syrups. This active ingredient is a large part of what makes these couch medicines addictive.

In order to combat the likelihood of dextromethorphan abuse, Senate Bill 938 (SB 938), prohibits the distribution of any drug containing dextromethorphan (DXM) to minors. Signed into law by Governor Scott on April, 1 and effective January 1, 2017, Senate Bill 938 is intended to prevent dextromethorphan abuse by minors by requiring that any individual assumed to be between eighteen and twenty-five years old to show identification in order to purchase any medication containing dextromethorphan. Manufacturers, distributors, or sellers found in violation of this mandate will be penalized by a maximum fine of $100 per violation.

Tallahassee Prescription Drug Defense Lawyer
Although prescription drugs and certain over-the-counter drugs can be useful when used responsibly, there is always an underlying risk of abuse when administered irresponsibly. If you were arrested and charged with illegal possession of a prescription drug or a related offense, please call the Pumphrey Law Firm at 850-681-7777 to discuss your charges with an experienced criminal defense attorney. We will work with you towards the most desirable option.

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The Day The President Said My Client Wouldn’t Die In Prison

Tuesday, January 17, 2017

Brian Tannebaum attorney

Attorney Brian Tannebaum


In my estimation, there are five things that are icing on the cake for any lawyer who practices criminal defense. 1. An acquittal in a death penalty case; 2. A reversal of a death sentence on appeal; 3. An invitation to argue before the United States Supreme Court; 4. A declaration of the client’s innocence after conviction; and 5. A Pardon or Clemency from either a Governor or President of the United States.

All five are rare occurrences, and a lawyer can go through their entire career, never doing any of the five, and have the reputation as one of the best.

President Obama wanted to review the sentences of federal prisoners who were given lengthy sentences for non-violent offenses, mainly drug offenses. (No, I’m not interested in a debate over whether drug possession or sale is a violent offense.) As a result, Clemency Project 2014 was created.

This was an “all hands on deck” operation. In the end, 16,000 petitions for Clemency were reviewed by the Pardon Attorney, and as of today, a little over 1300 have been granted. Clemency is not always a Pardon, in fact in most cases it is a commutation, meaning a reduction in sentence. The conviction remains, it’s just that someone sentenced to life, may instead serve 15 or 20 years. Under President Obama’s grants, some had to enter drug rehabilitation.

Although it’s a fear-mongering argument made by the ignorant, clemency is not about letting violent criminals back on the street. President Obama’s Clemency Project 2014 had strict parameters including: the offense for which the defendant is in prison can not be a violent offense, there can be no prior significant violent offenses, the defendant must have served at least 10 years, and must have good behavior in prison.

I’m not going to name my client here, but he is on the list of 209 commutations granted today, January 17, 2017. I just want to tell the story of my participation in the Clemency Project.

In August of 2015 I was asked if I would take on “one of these” Clemency Project 2014 cases. I was told it was a matter of obtaining the client’s Pre-sentence Investigation Report, filling out a form, preparing an “Executive Summary” and gathering whatever information I could about the client’s family and conduct in prison. I would have to watch some videos and certify that I had been “trained.” Seemed fairly organized and cookie cutter.

I had to get the client to agree to allow me to represent him, which took no effort. I didn’t imagine someone serving life in prison, sentenced to die in a cage, would have any issue if a lawyer, for free, was going to try and get him out.

That was the last easy part of the representation.

The Government is not big on handing out Pre-sentence Investigation Reports, and so that took some “higher-up” conversations. Once I got it, I realized there were issues that required documents from old files. There were questions to be asked of the client (made easy due to email access to federal prisoners).

While I worked on the Petition, in came pictures of the client’s family, and letters attesting to his good conduct in prison. After realizing there was a mistake in his prior convictions that had been corrected by a gracious state court judge, I had to make sure this was explained in the Executive Summary, basically a closing argument of why the client deserved Clemency.

What made this case more difficult, was understanding the odds. My client qualified for Clemency. He had served 10 years of a life sentence, was a model prisoner, had no violent past – on paper, he was perfect. But the odds. The President was getting thousands of these, why would he grant my client a second chance at life, outside prison?

As required, I submitted my Petition, and everything else to the Clemency Project.

Due to a technical issue, after completing my work, I could not get the Clemency Project to accept my Petition. The process was that the Project would review the Petition and supporting materials and forward it to the Office of the Pardon Attorney.

Fearful I would not get the stamp of approval of the Clemency Project, I contacted the National Association of Criminal Defense Lawyers (NACDL), another partner in the Project.

I was blessed to be able to reach the Executive Director, Norman Reimer. My hope was that Norman would put me in touch with someone at the Clemency Project to review my submission and propose edits. Instead, Norman said “I’m going to work on this with you.” Norman made corrections, suggested edits and more work, and after a few days of work with Norman, my Petition was submitted to the Clemency Project.

It then went to the Pardon Attorney.

A couple times while the Petition was pending, my client emailed me and asked if I “heard anything.” Of course there were only two things to hear, and I had heard neither. The Office of the Pardon Attorney has a website where they list every Clemency grant, and denial. Every time President Obama granted a bunch of Petitions, my heart sank. That meant there would be denials.

I kept checking, I kept searching lists by last name – occasionally finding the last name of my client on the denial lists, but..whew… a different first name.

I was told a few days ago that there were some recent denials, on January 13. I checked the list. He had to be on that list.

Nothing.

I knew I was going to get an answer this week, and before Friday when we inaugurate our next President. I was only told one thing – that the Office of the Pardon Attorney calls with the news.

Today I was out of town, having lunch with a long-time public defender friend, telling him that I hoped President Obama would decide today on his last grantings of Clemency, as I was nervous about the decision coming too close to the inauguration. That was at 1:30 p.m.

At 2:50 I received an email from my office. Attorney Sarah Black from The Office of the Pardon Attorney called and my client was granted a commutation. I was to call her back ASAP.

I called her back….and got voicemail.

A few minutes later she called me back, not knowing that I got the news, and so she told me as if I didn’t know. She was happy. I was in complete shock. She asked me if I could inform my client. I said “of course, you want me to email him?” And in a first-class move, she said “well actually, we’ve arranged for you to be able to call your client at 3:30 today and tell him. We have a number that he will be waiting at for your call. Is that a good time for you?”

Considering I had never had a client given an Order of Commutation from the President of the United States, I told her that “yes, I can call him at 3:30 p.m.” She said something to the effect of “I know this is a great day for you and your client, thank you for your work, and please call me if you need anything else.”

I’m not used to having these types of conversations with lawyers from the federal government.

What was I going to say to my client? I had just called my wife and could barely get through the conversation with her, now I was going to tell him he wasn’t going to die in prison because of Barack Obama? This was way too much for me.

So like Luca Brazi, I practiced. “I’m calling to tell you that President Obama….” “I have been advised….” No. “I have good news for you.” No.

The clock said 3:29. Was it 3:30 at the prison and they were taking him back to his cell because “your lawyer didn’t call on time?”

Then it was 3:30. I dialed, got the recording. The call disconnected. Oh no.

Two more times, recording, disconnected.

Third time, recording, dialed extension… “This is Delores.”

“Hi Delores, this is Brian Tannebaum, I am…” “Oh yes, how are you Mr. Tannebaum?” Not a typical greeting from someone at a federal prison.

With a little chuckle I said “I’m doing great.” “I bet you are,” she said, “let me get your client, he’s right here.”

“Hi, It’s Brian Tannebaum.”

“Hi Brian, how are you doing today, how is everything?”

Such an odd, typical question. More odd than typical because I was about to tell him that he wasn’t going to die in prison.

“I’m fine, I have some news for you.”

“President Obama has ordered your sentence commuted.”

He dropped the phone.

Delores came back on and I could hear her saying “get up, get over here, you have to talk to him.”

He came back on and expressed the type of emotion you can only imagine from someone who was just told that the President of the United States has given him a second chance.

Can you imagine? Me neither.

Tonight I imagine he has told his family that he will be coming home sooner than at his death.

I have received many congratulatory messages this afternoon, and I appreciate all of them. But I have to tell you that nothing is more meaningful to me than the fact that my client was the benefit of the grace of the leader of the free world.

Yes, I filled out some paperwork, put a package together, became the messenger. But my client will be free because the Federal Defender of the Southern District of Florida, Michael Caruso, thought to ask me to take this case, because Norman Reimer at NACDL helped me, because the Office of the Pardon Attorney recommended my client be freed, and because President Obama nodded his head “yes.”

If I never again have an experience like this in my career, (and statistically I won’t), I can feel a great sense that someone is freed from the chains and cages of a federal prison, when he spent the last 11 years there thinking he would die there, because some stellar members of the Bar thought to assist me in asking the President to set him free.

Located in Miami, Florida, Brian Tannebaum practices Ethics and Criminal Defense. He is the author of The Practice

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How the “Internet of Things” Could Become a Liability

James Bates of Bentonville, Arkansas claims he woke up on November 22, 2015 to find his friend, Victor Collins, dead in his hot tub.[1]  At about 9:30AM Bates called 911 to report that he found the body after a night of heavy drinking with Collins and another friend.[2]  Bates claims to have no memory of what occurred, but the state of Arkansas contends that there is evidence of a struggle, and a cover up of the ensuing murder.[3]  This seems like a standard case for a criminal defense attorney, collecting evidence to prove Bates’ side of the story.  This case has morphed into one that is far from ordinary, with the potential introduction of evidence from smart devices around Bates’ home.[4]  Investigators analyzed Bates’ water heater in order to conclude it used far too much water in the early hours of the morning when the cleanup would have occurred.[5]  Further, headlines exploded around the country when Amazon was served with a warrant for recordings from Bates’ Amazon Echo device.[6]  Digital voice-based assistants such as Amazon Echo and Google Home are designed to always be listening for a “wake word” an then proceed to record what is said afterwards.[7]  They by-design record what happens after the wake word, and then analyze the statements in order to learn how to more effectively control smart devices, navigate tasks, and query for information in the future.  These recordings are what state prosecutors hope to use in the case against Bates, and have sought to recover via a warrant served to Amazon.[8]  Meanwhile defense attorneys, working on behalf of Bates have discredited the potential use of this data, citing the Amazon user agreement, and Amazon’s assertion that it cannot guarantee the “functionality or content … is accurate, reliable, or complete.”[9]  The defense attorneys have claimed that the use in court would be “crazy” with this disclaimer in place, and have gone on to state that “There’s nothing on the Amazon Echo that will hurt us . . . We’re not fearful of anything being provided, if Amazon does indeed respond.”[10]  The potential use of these devices has understandably scary implications, their current structure only records audio after the wake-word has been said, but there are fears this could change with simple programming tweaks.  Devices such as these comprise of the “internet of things,” a term used to describe the networking of standard everyday devices so that they are able to send and receive data. [11]

Amazon Echo Pumphrey Law Criminal Defense Tallahassee

Amazon Echo

Privacy issues with devices such as these are not a new topic of concern.  The Chromium browser is the open-source basis for Google Chrome,[12] the most widely used browser in the world.[13]  Developers found that the browser was installing code that would listen for and share audio based on “an audio transmission triggered by . . . an unknown and unverifiable set of conditions” and potentially “without [the users’] consent or knowledge.”[14]  Concerns with “always on” recording, and the legal status of this data have extended to Samsung, Mattel, Microsoft and others.[15]  Data collected by these devices have, until now not been a concern for criminal defense attorney’s facing litigation though.  “Alexa,” Amazon’s always on software which is the heart of the Bates’ case is the first that has been addressed from a criminal evidentiary standpoint.[16]  The software is designed to collect recordings of audio upon hearing the wake word, and relay that data to Amazon’s cloud-based servers, and “Amazon has not disclosed the extent to which the company will have access to the data collected by these third party devices.”[17]  To further compound the privacy concerns, Amazon allows developers to create “skills” (third-party programs to create a specific functionality) and capabilities for the Alexa service.[18]  These skills could allow extra data to be recorded, data which Amazon has not explained any kind of standard for safeguarding.  The Electronic Privacy Information Center has argued during lobbying efforts that it is “unreasonable to expect consumers to monitor every word said in front of home electronics” and has gone as far as stating that the general practice of adding “always on” listening “is also genuinely creepy.”[19]

The practice of adding “always on” features being labelled “creepy” and invading the privacy of those users will not help criminal defense attorneys such as those in the Bates’ case however.  Any information Amazon discloses will likely be admissible in court, as long as it is relevant,[20] as statements made by a party opponent are generally not considered hearsay.[21]  The inclusion of this evidence is going to be up to Amazon, and any court rulings regarding the warrant served to them.[22]  At this time, Amazon has only stated that it “will not release customer information without a valid and binding legal demand properly served” and that “Amazon objects to overbroad or otherwise inappropriate demands as a matter of course.”[23]  What this means for the future of Bates’ case is unknown.  This case could have far reaching implications though, as these “always on” devices and the data they collect could theoretically be used in a myriad of cases, not just criminal.  Whether or not this will be technically or legally feasible just remains to be decided.

Brent Marshall Pumphrey Law Firm Law Clerk Criminal Defense

Author: JBrent Marshall

 

[1] Zuzanna Sitek & Dillon Thomas, Bentonville PD Says Man Strangled, Drowned Former Georgia Officer, 5 News-KSFM (Feb. 23, 2016 8:40AM), http://5newsonline.com/2016/02/23/bentonville-pd-says-man-strangled-drowned-former-georgia-officer/.

[2] Id.

[3] Elliot C. McLaughlin, Alexa, can you help with this murder case?, CNN News (Dec. 28, 2016 3:13PM), http://www.cnn.com/2016/12/28/tech/amazon-echo-alexa-bentonville-arkansas-murder-case-trnd/index.html.

[4] Id.

[5] Id.

[6] Id.

[7] Chris Smith, Here’s how to delete all the voice recordings Amazon Echo and Google Home secretly store, Boy Genius Report (Dec. 30, 2016 8:27AM) http://bgr.com/2016/12/30/how-to-delete-amazon-echo/.

[8] McLaughlin, supra note 3.

[9] Id.

[10] Id.

[11] Id.

[12] Samuel Gibbs, Google eavesdropping tool installed on computers without permission, The Guardian (June 23, 2015 8:27AM) https://www.theguardian.com/technology/2015/jun/23/google-eavesdropping-tool-installed-computers-without-permission.

[13] Stat Counter, Top 9 Browsers from Dec 2008 to Nov 2016, http://gs.statcounter.com/#all-browser-ww-monthly-200812-201611.

[14] Gibbs, supra note 12.

[15] Letter from Marc Rotenberg, Executive Director, Electronic Privacy Information Center, to Loretta Lynch, Attorney General, U.S. Department of Justice, July 10, 2015, https://epic.org/privacy/internet/ftc/EPIC-Letter-FTC-AG-Always-On.pdf (addressing concern over “always on” devices and the legal ramifications for holding onto this information).

[16] McLaughlin, supra note 3.

[17] Rotenberg, supra note 15.

[18] Bus. Wire, Amazon Introduces the Alexa Skills Kit—A Free SDK for Developers (June 25, 2015 9:03AM), http://www.businesswire.com/news/home/20150625005699/en/.

[19] Rotenberg, supra note 15.

[20] Fed. R. Evid. 401.

[21] Id, at 801(2).

[22] McLaughlin, supra note 3.

[23] Id.

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Florida Residents in Limbo Following the Approval of Medical Marijuana

During the November presidential elections, Florida voters voted overwhelmingly in favor of legalizing medical marijuana; however, potential medical marijuana users are unclear on where they go to a local distributor to fill their medical marijuana prescriptions. Furthermore, many patients suffering from serious illnesses have questions regarding when and where they can retrieve a medical card.

In addition to questions regarding where to obtain medical marijuana legally, the amount of medical marijuana available to qualifying patients per prescription has yet to be specified by Florida lawmakers.
Starting January 3, 2017, Florida has six months to create specific guidelines governing the distribution of medical marijuana, medical marijuana cards, and other relevant regulations. While qualifying patients await further instruction from Florida lawmakers, many patients are left to find more traditional methods of coping with their medical conditions.

Tallahassee Marijuana Defense Lawyer
While medical marijuana usage is now legal in the state of Florida, recreational use is still prohibited, and possession of marijuana is still considered a federal crime. If you were arrested and charged with a marijuana offense, contact the Pumphrey Law firm to speak with an experienced criminal defense attorney. This firm is dedicated to finding the best solution for your circumstances.

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Pumphrey Law Scholarship: Spring 2017 Winning Essay

Pumphrey Law Scholarship Essay

Lauren Sumners Pumphrey Law Scholarship Spring 2017 Essay Winner Tallahassee Florida Criminal Defense Florida State University

Lauren Sumners and Don Pumphrey, Jr.

One of my professors at Florida State University ends every class by pleading his students to do just one thing –“Please, do not drink and drive. Be safe.” This professor has taught thousands of students and boasts an impressive and long career. Every time I hear him say these words, I can’t help but imagine the things he must have seen throughout his many years of teaching. Has he had to deal with the loss of students due to drunk driving? Has he had to deal with grieving parents? Has he had to deal with a loss in his own family? I do not know the story behind his plea (or if there is one at all), but I do know his efforts stem from a sincere concern for his students’ safety and well-being. As a professor, he desires success for his students above all else. As his students, we have learned how to think critically in the classroom and are well aware of how our academic choices can alter our futures. I imagine this is his small way of encouraging his students to think critically outside of the classroom as well and understand that those choices are just as important. Through his simple words, he challenges his students to be proactive and choose responsibility in order to ensure a life after college.

Choosing to drive while drunk is a selfish act. It is entirely devoid of all responsibility and consideration. Not only does drunk driving endanger oneself, it endangers the lives of so many others including friends, loved ones, and complete strangers. While the majority of students are well aware of the consequences of drunk driving, many choose to ignore them. Due to the nature of the party scene, especially in college, it is easy for students to be tempted into making bad choices, such as thinking they can drive when they should not. It does not take much convincing by one’s friends or even oneself to think, “I’m probably fine” and get behind the wheel after drinking. In those moments, intoxicated and without the familiarity of their own home, many students do not choose responsibility; they choose selfishness. As a young woman living on a college campus, I am very aware of this temptation to act irresponsibly; I see students make the choice to act dangerously all of the time. It is not uncommon to see a drunken student stumbling along the street or getting rowdy at a bar only to then get in their car and swerve out of sight. Because of this, I am always on alert when driving, especially at night. Not only is the life of the drunk driver at risk when on the road, but so is mine and those around me. While I wish all students would act responsibly and understand how truly selfish it is so drive when drunk, I understand that this is not reality. These students who carelessly drink and drive are ignoring the negative impact it has on their lives and on the lives of others. They are ignoring the hard work of their families to provide and secure for them an education. They are ignoring the hopes of other students who are pursuing their futures and academic careers at Florida State. They are even ignoring the sanctity and dignity of their own lives.

Simply put, drunk driving destroys. Aside from destroying lives, it destroys families, friendships, academic careers, and futures. For those who have been impacted by the dangers of drunk driving, they have felt the acute pain of loss and know all too well just how far its sobering effect spreads. As a student who has valued the opportunity to receive a good education throughout my life and understands what a sacrifice it is financially for my family to send their children off to college to receive higher education, I made a pledge to myself at a young age to never take that for granted. Though I have failed at times, I have always tried to pursue my education with passion and dedication in an effort to respect what a gift it truly is. If I were to choose not to act responsibly when drinking, I would be turning my back on the sacrifices my loved ones have made for me. Unfortunately, I do not have a surefire solution to prevent drunk driving. I cannot control the actions of those around me nor can I make them understand the selfish nature of their choice to drink irresponsibly. However, I can set an example. I do not believe any one person is too insignificant or too powerless to make a difference. The positive, responsible actions and choices of each individual contribute to the well-being of their community in ways far greater than they may ever understand. By choosing not to drink and drive, I honor my family, friends, and community who love and value me. By choosing not to drink and drive, I uphold my university and acknowledge what has been given up in order to give me an education. By choosing not to drink and drive, I protect the shared opportunity to learn and work toward achieving academic goals with my peers, signifying that I believe my own selfishness is never enough to threaten or take that opportunity away from anyone.

 

Author: Lauren Sumners

Florida State University

Lesumners152@gmail.com

 

www.pumphreylawfirm.com

http://www.pumphreylawfirm.com/resources/pumphrey-law-scholarship/ 

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Flying a Drone in the U.S. as a Hobby

DroneThere are currently at least 330,000 registered drones, or small unmanned aerial systems, (sUAS) in the United States, eclipsing the amount of registered manned aircraft in February of 2016, a mere two months after compulsory registration came into effect.[1]  With sUASs flooding the skies the FAA revealed Part 107 rules for sUAS operation on June 21st 2016, putting it into effect in August.  With this rulemaking the FAA finally separated sUAS rules from traditional-manned aircraft regulation.[2]  In the past the FAA has largely ignored every day, casual users who fly model aircraft as a hobby, and as long as you still qualify you can continue to fly in this manner, rule 107 creates a second option though, and complying with these rules can be confusing.

Before You Fly

First, every user needs to make sure they’re flying a drone that qualifies legally as a sUAS.  If you’re attempting to fly a UAS that is larger than 55 pounds these rules aren’t for you, and hobby flights are going to require a 333 exemption from the FAA, it is recommended to speak to an attorney who specializes in drone law in order to correctly apply.  Alternatively, if the drone is smaller than .55 pounds this qualifies as a toy and the FAA doesn’t have any kind of regulation, have fun!  As long as the drone qualifies as a sUAS though, it must then be registered with the FAA before ever flying in the sky.  This can be done online, right on the FAA website and costs $5.[3]  Once the sUAS is registered, you need to decide which rules you need to follow.

Option #1 – The Hard Way

If you are ever going to derive any kind of economic value from pictures taken, or data collected, you’re going to need to follow the procedures of Rule 107.  If you want to keep all bases covered and keep the option open to sell pictures later then it is still prudent to follow the rule while flying.  The first step is to get a sUAS pilot’s license through the FAA, the requirements are that you must; be at least 16 years old; be able to read, speak, write, and understand English; and have the physical and mental health to safely operate the sUAS.  Assuming these are met, you must then take an aeronautical knowledge exam at an FAA knowledge testing center (A complete list of testing centers can be found at: https://www.faa.gov/training_testing/testing/media/test_centers.pdf).[4]  Once that exam has been completed an individual may apply for the license through the FAA Integrated Airman Certificate and/or Rating Application System (this can be found at: https://iacra.faa.gov/IACRA/Default.aspx).[5]/a>  From there the FAA will initiate a background check and email notification of acceptance and a temporary license.[6]  Those who already have a manned aircraft pilot’s license can complete an online training course, called “Part 107 small Unmanned Aircraft Systems (sUAS) ALC-451” (This can be found at: http://www.faasafety.gov/).[7]

Once the pilot has been certified it is time for an actual flight, as long as certain rules are followed.  First, the flight must take place in Class G airspace (airspace types are defined here: https://www.faa.gov/air_traffic/nas/nynjphl_redesign/documentation/feis/media/Appendix_A-National_Airspace_System_Overview.pdf).[8]  Any flight under 107 must also follow a few procedures, the pilot must always be able to directly see the sUAS, it must stay below 400 feet from a roof or the ground, it must take place during the day, cannot exceed 100 MPH, must yield to any manned aircraft, cannot fly over people, and the pilot cannot be in a moving vehicle.[9]  The full rules can be found in the federal rule (available here).[10]  This entire process can be confusing, and if there is absolutely no chance you will ever need to make money from flying, it is much easier to follow option #2 for strict hobby use.

Option #2 – The Easier Way

In order to qualify for hobby use, the pilot must follow a few guidelines found in the FAA Modernization and Reform Act of 2012, section 336.  First, it must be a strictly hobby use, there can be no economic gain.[11]  Second, it must be operated in accordance with “the programming of a nationwide community-based organization” (At this time the only one of its kind is the AMA, or the Academy of Model Aviation, their training can be found here: http://suas.modelaircraft.org/).[12]  Third, the pilot must give way to manned aircraft.[13]  Finally, if flying within five miles of an airport, the air traffic control of that airport must be contacted before the flight is legally able to commence.[14]  These guidelines are much simpler to follow, however the requirements do require that there be no economic gain, and the FAA has taken an extremely strict standard in measuring this, originally even going to YouTube to find violators who may be making money from views (although this practice has ended).[15]

Ultimately, the safest way to fly a sUAS is to follow Option #1 and the Rule 107 standards that the FAA has put into place.  If there is ever a question as to whether there was some kind of economic benefit, even an unforeseen source, it is far safer to follow the FAA’s rules ahead of time, this can prevent the fines and litigation that could potentially arise from drone flights the FAA has forbidden.  Option #2 is a fantastic outlet for anyone looking to enjoy the hobby of drone flights though, and a wonderful way for newcomers of all ages to learn about this thrilling hobby that continues to gain popularity.

[1] Bart Jansen, FAA: Drone registration eclipses that of regular planes, USA Today (Feb. 8, 2016, 10:26 PM), http://www.usatoday.com/story/news/2016/02/08/faa-drone-registration-eclipses-regular-planes/80002730/. back

[2] Federal Aviation Administration, Press Release – DOT and FAA Finalize Rules for Small Unmanned Aircraft Systems, (2016) https://www.faa.gov/news/press_releases/news_story.cfm?newsId=20515. back

[3] Small Unmanned Aircraft System (sUAS) Registration Service, Federal Aviation Administration, https://registermyuas.faa.gov/. back

[4] Becoming a Pilot, Federal Aviation Administration, https://www.faa.gov/uas/getting_started/fly_for_work_business/becoming_a_pilot/. back

[5] Id. back

[6] Id. back

[7] Id. back

[8] Id. back

[9] Id. back

[10] 14 C.F.R. § 107. back

[11] FAA Modernization and Reform Act of 2012 § 336(a)(1). back

[12] FAA Modernization and Reform Act of 2012 § 336(a)(2). back

[13] FAA Modernization and Reform Act of 2012 § 336(a)(4). back

[14] FAA Modernization and Reform Act of 2012 § 336(a)(5). back

[15] Justin Bachman, Drone Home Videos No Longer Provoke FAA Wrath, Bloomburg (April 14, 2015 1:14 PM) https://www.bloomberg.com/news/articles/2015-04-14/drone-home-videos-on-youtube-no-longer-provoke-faa-wrath. back

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¿Quién es Miranda? (Who is Miranda?)

Often times you hear the phrase “lost in translation” in reference to misunderstanding in conversation.  From past experiences as an attorney, I’ve gained a different appreciation for things that get “lost in translation” in the courtroom.

These moments wouldn’t have come to pass if I wasn’t a native Spanish speaker.  If I were any other attorney, one who didn’t grow up in a Spanish-speaking country and a Spanish-speaking household, I wouldn’t have noticed the issues and happily kept going about my day without knowing a miscarriage of justice was afoot.

Recently I read an article written by Tony Maura[1] as to whether the Miranda Warnings[2] should be read in Spanish to Spanish speaking criminal suspects.

The article speaks of the limitations encountered by Spanish-speaking suspects when their rights are read to them, including, but not limited to having other defendants interpret for them or having officers with “high school Spanish” recite the rights in Spanish.

I can’t imagine how any court could possibly uphold a waiver of Miranda by a Spanish-speaking suspect as “knowing and voluntary” in this type of situation.

The piece in the article which caught my eye the most was the mention of how an officer used the wrong word for “free” when referring to having an attorney appointed at no cost.[3]

This type of mistake is common to the untrained reader/listener because in English the word “free” has multiple meanings which, depending on the context, can mean without cost or that you have no constraints on your liberty.

As pointed out in Mauro’s article, the officer used “libre” referring to liberty rather than “gratis” which refers to cost.  This mistake can be costly depending on its effect on the listener.

In this case, I would argue that it rendered the Miranda rights deficient, thus robbing the suspect of the due process promised to him by our Constitution.

Overall, the article brought back some memories from my time as a State Prosecutor, both as a Certified Legal Intern in Leon County and as a sworn Assistant State Attorney in Broward County.

On multiple courtroom occasions, I’ve noticed that even Court appointed interpreters to make a simple contextual mistake when translating from Spanish to English or English to Spanish.

These were mistakes made by someone who is trained and certified to interpret.  For example, in the middle of a trial with a Spanish speaking witness (State witness, father of the defendant), the question posed by the Prosecutor was, “was the room Carlos’?”

However, the translator asked, “Was it your son’s room?”  Now, without context, you’re probably wondering where the problem is with that statement.  When the key to the case is that the room was, in fact, Carlos’, and the witness has multiple sons, this becomes a problem.

The State is charged with proving, beyond a reasonable doubt, that the defendant is guilty of the offense charged.  When the case hinges on constructive possession, ownership of the room where the contraband is found is of utmost importance.  Therefore, the missteps in translation make a difference for both sides.

The obvious retort to the above situation is, “well how would the defense or the Judge have known the difference?”  They wouldn’t have in the instant moment if they didn’t speak Spanish or even if they did, they may not have caught the importance of the shift in wording.

However, you never know for sure who in the room knows a second language.  Whether State or defense, it would be prudent to employ an independent translator to track the Court appointed translator for missteps that could turn a case and knows how to point those errors out.

Had I not been there to step in for the State and correct the word usage, and the defense attorney was a fluent speaker like me and caught on to the difference, the case likely would have been a loss for my trial partner and me.

This situation I described is a specific occurrence, but on several other occasions, I had to jump into action and pause the proceedings in order to explain to the Judge at sidebar that the interpreter was not properly translating either the attorney’s or the witness’ statements.

Had I not been there, the result might’ve been different or been the same.  I’ll never actually know, but it’s always better to be thorough and not let silly things like truth, justice, and liberty get lost in translation merely because a suspect, defendant, or critical witness does not speak English properly.

Our Constitution contains safeguards to ensure that all of those who are subject to our laws are treated fairly, equally and given due process of law.  The Constitution doesn’t contain a footnote saying “so long as you speak English,” nor does it ever mention that English is the official language. Merely “teaching” police how to read a Miranda card in another language is not enough of a fix for the prospective Constitutional violation.

Much like we do in Court, why can’t an interpreter be afforded for suspects in the light of interrogation?  How would you feel if you were detained in a foreign country with a foreign language and your only line of communication was your travel companion who speaks five more words of that language than you?

If you ever find yourself in a situation where you feel like the police have taken advantage of you because English is not your first language and you didn’t understand your rights as they were read to you, contact an attorney who will fight for your rights and freedom.

Having an ally who can communicate with you in your native language can make or break a case by not allowing simple distinctions like “who’s room was it?” to take away your rights to life, liberty, and the pursuit of happiness.

Conclusion

Kristian S. Oldham is an Associate Attorney for the Pumphrey Law Firm.  He graduated from the Florida State University College of Law in 2013 and was a Prosecutor in the 17th Judicial Circuit of Florida prior to joining the Pumphrey Law Firm in the Summer of 2015.  Kristian can be reached at 850-681-7777 or toll-free at 888-384-3661

[1] http://www.law.com/sites/almstaff/2016/08/08/is-it-time-for-a-better-miranda-warning-in-spanish/?cmp=share_twitter&slreturn=20160712145340

[2] Miranda Warnings are four declaratory statements and a question that Law Enforcement Officers must as before interrogating a suspect.  See Miranda v. Arizona, 384 US 486 (1966).

[3] The State of Florida charges an application fee of $50 to those who seek the representation of the Public Defender.  See Fla. Stat. 27.52 (2016).

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Attorney Don Pumphrey Jr. is a former prosecutor, former law enforcement officer, and a successful and experienced criminal defense attorney.

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