The Trial Dog

Under the Sixth and Fourteenth Amendments, criminal defense attorneys must possess an exceptional understanding of legal ethics, a mastery of evidence, courtroom procedure, the criminal and appellate rules, all the pertinent criminal statutes, courtroom etiquette, jury instructions, sentencing and mitigation issues, proper error preservation, proper investigation methods and tactics, motion…

Merriam-Webster dictionary defines a “mistake” as “to be wrong” or “a wrong action or statement proceeding from faulty judgment, inadequate knowledge, or inattention.”[i] If your attorney makes a mistake that affects your case’s outcome, you may have a claim for “ineffective assistance of counsel.” Attorneys are human; they make mistakes. Like the other parts of the Bill of Rights, the Sixth…

When an attorney represents a defendant in a criminal case, there is a division of authority after the two decide on the objectives of the representation. Sometimes, the two mutually decide to pursue a plea bargain based on the available evidence; sometimes, they decide to make the government prove its case beyond a reasonable doubt. These are serious decisions. In any representation, the…

The “tough on crime” mentality has motivated the various states and federal government to tighten their criminal laws for all offenses, violent or not. This was a conservative battle cry for many years. While this mentality is fundamentally flawed, it has scared, cajoled, and motivated the unwitting public into craving tougher, harsher penalties for offenders without mercy. The results are in,…

Error preservation is one of the most important trial skills a trial attorney must master to represent a defendant effectively. There is no greater tragedy than having an appellate court lament that the issue raised on appeal would be a valid, reversible error (meaning it gets the defendant a new trial), but for the fact that the trial attorney failed to object at trial properly. At this point,…

        A predicate question is necessary to make evidence admissible. The predicate is a set of questions that is asked of a witness on the stand. In general terms, the witness must be able to appropriately and sufficiently answer certain questions to make the evidence admissible.         Basically, the witness must testify under oath and can adequately recall the subject matter. The witness…

“It is not fair. I had no idea that the system was not fair.” Over the past 20-plus years or so, many family members of potential clients have made statements like the above as I counsel them about their options moving forward with an appeal or post-conviction. These individuals are usually distraught over what happened in trial or at the appellate court. Often, these individuals are deeply…

In limited circumstances, a defendant may move within 60 days of being sentenced or 60 days of the mandate on the direct appeal to have the sentencing court review the sentence and possibly modify or reduce the sentence. Florida Rule of Criminal Procedure 3.800(c) reads: (c) Reduction and Modification. A court may reduce or modify to include any of the provisions of chapter 948, Florida…

As an appellate attorney, it breaks my heart to see appellants get the shaft because their defense attorneys miss objecting to improper closing arguments. In my experience as both a trial and appellate attorney, it is flatly inexcusable and a complete dereliction of duty. Without the proper objection, these improper arguments are often allowed to unfairly infect the jury’s deliberations, and,…

Can’t Make the Sick Chicken Better

This week was a rough week for appellate outcomes for a few appeals where I wrote the briefs. I learned a long time ago – sometimes you just cannot make the sick chicken better and it sucks for the clients who had less than optimal representation at the trial level or had good appellate issues that the appellate court simply punted on (because they can). Elections have consequences – and this…

No Magic Pill: Dispelling Myths About Pleas in Criminal Court

There is a popular myth out there amongst people serving time in Florida that you can file a motion and renegotiate the plea bargained for sentence. The idea is if the sentence is too harsh, too long, or it is not to the defendant’s liking, then just hire a “high priced” attorney and they will be able to file a special motion to get the sentence reduced. Unfortunately, this is a fairytale and not…

Once More Unto the Breach: A Basic Understanding of Direct Criminal Appeals

I often hear from people recently convicted, “I want to appeal. The State did me wrong. I went with so-and-so as my defense attorney, and they did nothing to defend me. And there was no evidence to convict me. You’ve got to help me.” While this may or may not be true, the sad truth is this: if you were convicted at trial and were represented by an inexperienced or ignorant or unskilled or lazy…

Don’t Forget the Motion for New Trial: a Short Primer on Its Use in Criminal Court

The trial is over. Unfortunately, the jury found guilt beyond a reasonable doubt. What’s next? Some attorneys would say sentencing and they would be half correct. But, if the criminal defense attorney knows what they are doing and fully understands criminal and appellate procedure, then the next step before sentencing is to file a motion for new trial. Fla. R. Crim. P. 3.580, 3.590,[i] and 3.600…

Get Your Stuff Back

Don’t let the government keep your stuff! Get your car, cash, or phone back. The only catch is that the car, cash, or phone cannot be evidence against you in a criminal prosecution. Under Florida Law, there is a loose procedure in place to get certain items back from the law enforcement agency when the officers have seized items from you. See §705.105, Fla. Stat. [i] In other words, the police…

“Say again… how much?” I get your sticker shock but let me explain how we got to that price. Here is the Pablo Picasso Napkin Story to illustrate the point. Picasso was sitting in a Paris café sipping coffee. He was just enjoying the day, minding his own, when a fan recognized him. The fan knew he was Picasso, the artist, and approached him unsolicited. She asked him to make a quick sketch on a…

Stay Away from Stipulations in Criminal Court

Recently, I have briefed several appellate cases where the defense attorney inexplicably stipulated to pertinent facts that ultimately assisted in convicting their clients. For the life of me, I cannot understand how or why this occurred. The defense attorney’s main objective is to force the state to prove its case. “Due process requires that the State prove an accused guilty beyond a reasonable…

Marketing Madness: Update June 2021

Original blog can be found at https://ihearyoubarking.com/2021/03/13/marketing-madness-how-to-navigate-attorney-advertising-in-2021/ this is an update to that blog post. There is a lot of fancy marketing out there that makes no sense when you think about it and people are fooled by it every day. While it is extremely prevalent in food products, the legal profession is not too far behind. Here is…