The longest day of your life: deciding whether to enter a plea

Take a look at this article:  Man gets 40 years in jail after rejecting plea deal that would have freed him immediately.

Look at this man… Look at his eyes.  He could have pled to time-served and gone home, “hence without day” as they say.  Instead, he went to trial…

…and was convicted…

… and got 40 years.  In prison. The pen. The big house.  That’s a life sentence, folks.

When you enter a plea, you’re asking for mercy… If you go to trial, you may be asking for justice.  At least, that’s what an old trial judge, J. Rogers Padgett of Tampa, used to say.  That guy is a wealth of courtroom wisdom.

Making the decision as to how to resolve a case is hard.  No one wants go to jail or prison.  Well, most normal people don’t – some would rather do that than serve probation, for various reasons.  How does one ever decide to voluntarily agree to go to prison?

My suggestions to clients are:

  1. Know what the worst-case scenario is (what’s the maximum sentence possible?).
  2. Know what your judge does in cases like yours.  If everyone similarly situated to you gets ____, then more than likely you’ll get that, too.
  3. Look objectively at your case. If you did not commit the crime, or the government can’t prove it, absolutely consider going to trial with a great trial lawyer.  If you have some liability, be realistic about it and think about how to lessen the impact of a sentence.  Remember, there are lots of people in prison on principle – the ones that relied on a false sense of something or other while not being real about their situation.  And finally….
  4. Think about this:  if you reject the plea, and get a harsher sentence – what would the longest day of your life be?  Upon going to jail or prison, what would the longest day of your life be while incarcerated??

Call for a consultation, come in and talk, and if you haven’t figured it out, I’ll tell you.  No one ever guesses correctly, and are surprised when I tell them.  Trust me, it will make a difference in your plea-vs-trial decision making.

Look at the man in the photo…look at his eyes. He has figured out the answer to my question.

Onward justice!

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You never know how your private personal information is being (mis)used

A TBO (click the photo for a link) article that shines a light on what those of us in the system already knew goes on.  Sometimes, those with access will pull your information for non-official reasons. Maybe just out of curiosity, but sometimes out of spite. It’s a scary thought!

Misuse of the DAVID (Florida driver database) is actionable – meaning the misuser can be sued. You can request a copy of your driving history, which will show what user accessed your information and when.

I’ll be ordering mine tomorrow. If you find that your driver information has been abused, contact us.  850-222-4529.

Calmly comply and clam up: what to do when confronted by police

Everyone has the right to remain silent. What many lack is the ability to remain silent.

These are the do’s and dont’s of dealing with an encounter with law enforcement. Follow them and you’ll survive the encounter, and position yourself to fight a case later.

The rules: calmly comply and clam up.

  1. Remain calm.
  2. Quickly comply with all commands.
  3. Be polite but do not answer any questions other than to identify yourself – clam up.

A police-citizen encounter is not the time to make a point, argue, protest, complain, question, or try to show how informed about the law you are.  Get over feelings of anger, impatience, feeling “dissed” or disrespected. Stay calm.

The officer(s) are in control. Not you. Accept that fact and you’ll make it through the incident. Comply with all commands.

As discussed below, silence is golden. Identify yourself, but refuse to answer any questions. Clam up and stay clammed up.  Ask for a lawyer.

Don’ts

  • Don’t run.
  • Don’t make sudden movements.
  • Don’t try to talk you way out of the situation.
  • Don’t talk – just listen.
  • Don’t consent to any search.
  • Don’t refuse to sign a traffic citation or notice to appear in court (signing doesn’t admit guilt).
  • Don’t forget to make eye contact with the officer.
  • Don’t be confrontational.
  • Don’t ever touch a law enforcement officer.

Why?  These are difficult times.  Everyone is on edge.  Officers have a job to do – one that puts their personal safety at great risk.  So understandably they are on red alert.  Be cool and everyone makes it out of the confrontation in one piece.

Every encounter starts on high alert

Cops need to control the situation. Let them. 

If you feel that you were physically abused, or in any way mistreated, let your attorney know immediately.  You may also want to file a written complaint against the officer later. But do not touch, strike, or attack the officer.  Defend yourself only if you must – but understand that law enforcement officers are trained in hand-to-hand combat, have weapons, and have reinforcements.

Legal issues arising from the encounter: the importance of silence

The street is not the courtroom. The street is not the place to argue over whether you were legally detained. It’s not the time or place to dispute the legality of any search.

Just keep quiet.  Do not consent to any searches.  Do not make comments.

If your rights are read to you, don’t make any statements. Ask for a lawyer – don’t be wishy-washy, be firm: “I am not answering any questions and want to speak to a lawyer.”

Resist the “you don’t need a lawyer, we can work this out if you’ll just talk to us” routine.  Don’t say anything.

If you invoke your rights at first, don’t start talking later. Don’t think that invoking your right to remain silent will somehow cover what you say afterward. To the contrary – keep talking and you’ve waived your right to remain silent.  Anything you say can and will be used against you.

If you stay silent, and you end up catching a charge, your attorney will be in a far better position to fight the case. You’re not going to talk yourself out of an arrest, but the attempt to do so can seal your fate later.  Don’t talk yourself into a conviction.

Conclusion

In short, calmly comply and clam up.  Call me afterward.  850-222-4529.

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Ms. Richardson, we need a ruling on your experience, please

When will Monique Richardson clarify her credentials? When will the accuracy about her actual legal experience start to matter to her and her campaign?

Apparently not soon. While Richardson is very active on social media, she hasn’t touched this issue at all.  Since my Facebook question to her a week ago, and my bLAWgger post on Saturday, no response. I know she knows about both. I guess it doesn’t matter to her that there are questions to be answered.

First, take a look at this: http://www.miamiherald.com/news/local/community/miami-dade/article97462927.html

Compare the facts of this article about a Miami campaign lawsuit to the facts in my bLAWg post of last Saturday.  Judicial candidate says she was a prosecutor when in fact she was not:

Del Rey has also billed herself as a former prosecutor, but records show she hadn’t been sworn in as a lawyer yet while working briefly as “legal trainee” at the Miami-Dade state attorney’s office in 2005. The office lists her as having been terminated, although she insists she sent in a timely resignation letter — which cited a grueling work schedule as her reason for leaving.

I’ve checked her website and some social media posts. As of this morning (Wedneaday, August 24), Richardson still has not clarified that “during her 15-year career as an attorney” she did NOT work at the State Attorney’s Office. She worked there BEFORE her legal career, as an intern.

There is a difference between being a sworn assistant state attorney (prosecutor) and being an intern.  One is part of a legal career, while the other is part of legal training.  Interns are not yet members of the Bar.  Interns must be at all times supervised.  Interns usually only work in the county court misdemeanor division, handling a limited amount of select DUI and misdemeanor cases.  In other words, it’s a significant difference that matters.  Especially when you are running for judge and want to tout that valuable “former prosecutor” experience.

(Again, I strongly believe internships are a valuable part of legal education.)

Her supporters have told me “she never said she was a prosecutor!”  No, not directly. But she sure as heck has stuff out there that could lead people assume she was one.  It’s no different that someone saying “I worked at the White House” – which could be interpreted as having been an important aide to the president…when in acutality the person worked in the mail room. Or “I was with the Atlanta Braves” – you might think one was a player when one was really a trainer or front-office executive. 

Richardson has also not clarified how many times she took the Bar exam, or details of her self-proclaimed “significant” trial experience.

Accuracy matters.  Transparency matters. Not making improper insinuations – it matters. Not forcing people to assume -it matters. Not asking voters to guess – it matters.  Richardson cannot ignore this issue.

So, the voters of Leon County need a ruling from the judicial candidate, in the form of her campaign website, on social media, or a response to me:

  1. Were you an intern or an assistant state attorney?
  2. How many times did you take the Florida bar exam?
  3. How many jury trials have you been involved in, and what was your part (did it all, was 1st chair, was 2d chair to another attorney, etc) and what parts of the trials did you personally do (opening, closing, etc)?

And so I am accurate and transparent: I support and have donated to incumbent Judge J. Layne Smith, Ms. Richardson’s opponent.

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Is Richardson misleading about her legal experience?

Monique Richardson is not a former prosecutor.  She was not an assistant state attorney.  And she should be very careful about leading people to believe she ever held that position.

This is not a “hit piece”.  This is a researched article that is offered in response to a question from me to Ms. Richardson that she left unanswered.  I do not want to have to do this – not because it will be perceived by some as a smear, but because I should not have to expose what appears to be misleading statement from someone who wants to sit on the bench.  But when the question went unanswered by Ms. Richardson, I went looking for an answer.  And I found it.

Disclaimer:  I endorse and have donated to the campaign of incumbent candidate Layne Smith.  I claim no political party affiliation.  Herein, I will do my best to state only facts and point out why those facts raise significant questions.  Any opinions are mine alone. I went to high school with Ms. Richardson and have respect for her and her family.

Richardson’s claim

Like any other candidate for public office, Monique Richardson is touting her experience as a reason to elect her as a Leon County judge.  Nothing wrong with that.  However, take a look at her claims, found on her own campaign website.

MR About

The third paragraph strongly implies and leads the reader to believe that she actually served as a sworn assistant state attorney, a prosecutor:

During her 15-year career as an attorney, Ms. Richardson’s work with the State Attorney’s Office, the Office of the Public Defender and today as the managing attorney for the Tallahassee branch office of Legal Services of North Florida, Inc. (LSNF), has centered on providing high-quality legal representation to clients who otherwise would not have had such access.

In a recent Facebook post that I saw and interacted with, a Florida Democratic Party leader made the same comment, that Richardson worked as “a state attorney”:

MR FB 1

Forget for a second that a judicial race is non-partisan, and Richardson even asking the partly leader to share her “meet and greet” invite, and acknowledging the FB post by the Florida Democratic Party, is highly questionable.  That’s enough pause for alarm.  But note that the Democratic Party misinterpreted the fact regarding working “as a state attorney” – twice.  While I question their involvement in a non-partisan judicial race, I believe the misrepresentation was inadvertent – more on that below.

Note that I caught the post, and was curious as to Ms. Richardson having “worked as a . . . state attorney” – to me, meaning prosecutor, and seeing that she had responded to the post, and asked for clarification.  Her response was not to clarify, but to continue to leave the insinuation out there that she had been a sworn assistant state attorney.

Like so many of us, I’ve had a wide range of professional experiences over the years.  Although I don’t recall the time you’re referencing, I’ve worked in both the State Attorney’s Office and the Public Defender’s Office.

Now, I’m not that stupid, and got concerned with that response.  So I narrowed my next question to use the word “prosecutor.”  As you can see, there was no response from Richardson.  And I know why.  She can’t answer the question because she was not a prosecutor.

The truth

Monique Richardson was never a prosecutor.  She was never a legally sworn assistant state attorney.  She was an law student intern.  There is a huge difference:  Florida Statute section 27.18 requires that an assistant state attorney be a member of the Florida Bar.

She was certified by the Supreme Court of Florida as an intern on August 25, 1998, before she started working as an intern at the State Attorney’s Office:

MR intern appointment

Monique Richardson did not pass the Florida Bar on the first time she took it.  We know that from her internship resignation letter, dated April 22, 1999, which is public record.  She writes, “I am retaking the Florida portion of the Florida Bar Exam . . . “:

MR resignation letter

*According to her Florida Bar profile, Ms. Richardson finally became an attorney on April 13, 2000.

Note:  the Bar offers its exam twice a year:  in February and in July.  If you take and pass the February exam, you are usually admitted by April.  If you take and pass the July exam, you are usually admitted in September.  I question whether she failed the Bar exam a second time; if she took it in July 1999 as her resignation letter states, then she would have been admitted in September 1999 had she passed.  Being admitted in April 2000 strongly indicates that she took the February 2000 bar exam, and passing that then was admitted in April.  Only she can answer that important question as to her legal acumen.

Look again at Richardson’s website.  While going into detail about her work as an assistant public defender and at LSNF, the webpage makes no other reference to working at the Office of the State Attorney, nor does it say Richardson’s work there was actually as an intern.

Do not take just my word for the fact that she was not a prosecutor (which is entirely accurate under any analysis), take it from Monique Richardson herself.  In an application for a judicial position (ostensibly the one she was not appointed to and is now running for), she lists her time at the State Attorney’s Office as “Certified Legal Intern . . . August 1998 – April 1999.”

MR legal job list

Here is a copy of her application, which is public record.  If it is accurate, it gives you a much more realistic view of her overall experience; you can judge for yourself whether it is judicial material.

The problem

In my opinion, Richardson specifically structures her webpage and the Facebook response to make the community believe she was an attorney at the State Attorney’s Office – a full-blown prosecutor.  Prosecutorial experience is highly valuable to a judicial candidate.  Had she said “while in law school, I served as a legal intern at the State Attorney’s Office”, or written “prior to becoming an attorney, she worked as a legal intern . . .”, it would have been clear.  However, she purposely put “work with the State Attorney’s Office” after “[d]uring her 15-year career as an attorney.”

As an attorney . . . that’s my concern.  Her work at the State Attorney’s Office was not “during” (her word) her “15-year career as an attorney” (also her words).  It was before her career as an attorney.  Again, her words:  15 years from the time she announced her candidacy in 2015 would be 2000 – when she was admitted to the bar.  Not in 1998-1999 when she was . . . you get it . . . not an attorney working as an intern at the State Attorney’s Office.

It strongly appears that she intends that people think she was a sworn assistant state attorney (prosecutor) when, in fact, she was not . . . There is no other interpretation of her statements.  That is clear from the Facebook post – even a highly intelligent and very reputable individual misinterpreted Richardson’s experience – twice.  That’s the problem with the lack of clarity here – people can be misled, and that’s not fair or right.

If one is going to make point out on his or her campaign website that he or she give foster care to kitty cats, and specifically lists the places in the world to which he or she has traveled, and can name Alfred Hitchcock by name – then certainly that person can easily be crystal clear about prior legal experience.

There is nothing wrong with having been a certified legal intern before becoming an attorney.  I did it myself!  I am proud of that experience, and strongly support the internship programs.  I encourage my students to do internships.  I work with interns all the time on my cases.  If  you ask just about any of them, they will tell you that I speak fondly of my own time as an intern and encourage them to get the most out of their own internship.  Ms. Richardson should be proud that she was an legal intern and make it clear to the public that her short time at the State Attorney’s Office was as a part of the Bar’s internship program.

Instead, Ms. Richardson has used vague phrases that appear carefully crafted so not to be an outright mistruths, but still convey that she was a prosecutor.  Surely, she is not outrightly lying about working at the State Attorney’s Office – she did in fact work there.  But there is a huge difference in being a short-time law school intern, and being a sworn attorney, Bar member prosecutor.  Surely she knows that – or should know that – and is apparently mincing words to convey that she served in the attorney capacity.  Sorry, it does not work like that.  Someone who wants to be a judge should be crystal clear, 100% transparent, and make accurate statements that gives the community assurance of the character of the individual.

This is no different, and just as troubling, as a Bar complaint pending against Miami attorney and judicial candidate Marcia Del Rey, for Del Rey’s claim that she was an assistant state attorney, when in reality she was apparently only an intern.  Coincidentally, I ran across this article just before Ms. Richardson failed to respond to my question.  It is the same exact problem.

A final note about her experience claims.  Ms. Richardson extols her “significant trial experience”; her last judicial application lists her LIFETIME trial experience as 8 jury trials, 90 non-jury trials, and 3 administrative body hearings.  As a state and nationally board certified attorney myself, and long-time teacher of advocacy at the law school level, let me tell you that 8 jury trials is a surprisingly low number.  So, again, Ms. Richardson’s use of the term “significant” is (in my opinion) misleading . . .  there’s a huge difference between a jury and a bench trial.  Ms. Richardson doesn’t tell you that, either.

Leon County voters, think very carefully about your decision.  You can keep Layne Smith, a proven fair and impartial judge who passed the Bar on the first try and who does not misrepresent his substantial credentials.  Or, you can vote for a candidate who appears to engage in word play to pad her resume.

Sorry, I’m calling it like I see it, and the documents are the undeniable evidence.

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