Author: Betty Nelson

PROBLEM

Each year, approximately 450,000 Americans are held in jail every day because they don’t have enough money to bond out. It’s been called a “wealth-based detention scheme.” Many have had enough of this unfair system which detains poor folks even for non violent misdemeanor offenses. Many judges often set bail that they know people cannot afford as a way to keep them incarcerated. Former attorney general Eric Holder has chosen to support the cause. He believes the pretrial detention system is unconstitutional. He recently argued that judges must set bail that people can actually afford, while continuing to deny bail for those who are a danger to the community and/or a flight risk. While Holder’s focus is primarily on Maryland criminal courts, the problem exists throughout the criminal system in almost every U.S. city.

A 2014 state commission alleged that two-thirds of the inmate population is made up of pretrial detainees. 68 percent of those were stuck in jail solely because they couldn’t afford to pay for their bail. By singling out poor people and engaging in this practice, judges are violating the 14th Amendment’s due process and equal protection clauses.

SOLUTIONS

One potential solution is to require judges who are engaged in this unconstitutional practice to set bail bonds based on the individual’s ability to pay. This isn’t something novel. That’s what good and fair judges do every day. Further, those judges who are punishing the poor need to be reminded that bail is not supposed to be used to punish the accused. The purpose is solely to provide the accused an incentive to show up to court when his/her case is set in the future. I like what Colorado and New Jersey have done, moving to focus on the perceived risk of flight and potential danger posed as opposed to ability to pay as sole factors to consider when determining bond amounts. I wouldn’t be opposed to what New Mexico is trying to achieve, which would be to make it unlawful for judges to knowingly impose bail amounts that they know poor people cannot afford.

Also, another move that seems to work very effectively here in South Florida is to release more defendants without having to post a bond. Instead, they get released to “Pre-Trial Services,” and are monitored closely, having to report as directed. While this program has done irreparable harm to most bail bondsmen, I believe it has resulted in fewer violations of the constitution. Ultimately, this program saves the taxpayer millions of dollars required to jail and care for non violent minor offenders.

One other potential solution would be for judges to rely more on electronic monitoring in lieu of requiring a bail bond to be posted.

CONCLUSION

While the bail bond system generally works effectively, there are too many constitutional violations occurring every day, in almost all cities. Treating the accused differently solely based upon their net worth (or lack there of) is fundamentally unfair and contrary to what the founding fathers intended for our justice system.

I rarely watch horror movies, but I’ve seen enough to know that most of the plots focus on young white kids doing something stupid.  I define stupid as entering a creepy abandon house for no good reason.  Many stand up comics have good rants on the horror film behavior of black people versus white people.  A complete list of these differences was teased out by comedian Orlando Jones, and it can be found here.  For example, Orlando believes that black folks would never “adopt a kid who turns out to be the devil”, or “eat grilled chicken”, and these are common activities for white horror film stars.   Eddie Murphy believes that horror films will never star black folks because if “there’s a ghost in the house, [black people] get the fuck out”.  The movie would last 30 seconds.  No needless investigations of what’s lurking downstairs.  (See Eddie Murphy’s  “Delirious“, it’s worth a viewing even if it means you forget about reading the rest of this, it’s just that good)

There’s some great horror movies out there known as “found footage” films.  The idea is fairly simple: documentary filmmakers disappear under mysterious circumstances, and someone finds their footage.  The Blair Witch Project is one such film.  UCF alum created a fictional account of three film students who disappear after entering a forest to investigate a local Blair Witch legend.  All that’s left of the crew is their film footage.  Spooky.

The found footage genre owes its origins to Ruggero Deodato’s 1980 shocker Cannibal Holocaust.  By 1980’s standards, this horror film was so “real”, so controversial, that its creator was arrested soon after it’s premiere in Italy (and yes, the films were seized as well, what great free promotion!).  The plot was simple: Indiana Jones types travel to study remote cannibal tribes in the jungle, and they never return.  When they don’t return, investigators re-visit the jungle to investigate their disappearance, and as per the formula–they find the missing crew’s shocking footage.  Let’s face it, if someone is dumb enough to hang out with a whole jungle tribe of Jeffery Dahmers, going missing cannot be a good thing. Cannibal Holocaust contains animal mutilation, murder, rape, and absolutely grotesque images.  Eventually, the murder charges against the film’s creator were dropped after several of the “dead” actors appeared on TV to explain how they shot the film.  The film grossed $200,000,000, and that was in 1980.  Yes, you heard me.  The present value of $200 million from 1980 is, approximately, one zillion dollars.  There was only one film to beat out Cannibal Holocaust in 1980–Spielberg’s E.T. The Extraterrestrial.

Believe it or not, our Florida case for today involves found footage (of sorts).  In State v. Tumlinson, Mr. Tumlinson was charged with lewd or lascivious molestation of a child under twelve years of age “after law enforcement discovered and then questioned Tumlinson about his personal journal entries that described sexual contact with a child, J.T.  Law enforcement was contacted after Tumlinson’s former roommates found the troubling journal entries Tumlinson left behind at their home.”  (Fla. 2nd DCA 2016, Case NO. 2D15-1814).  (You didn’t think I could transition from Cannibal Holocaust to a Florida case, did you?  I’m not proud of the segue here, but we’ve got to talk about the law at some point)

Tumlinson’s journal contained the following journal excerpts concerning his alleged molestation of  1 1/2 year girl:

“Yesterday I proved to myself that I have really no self-control when it comes to my impulses and no self-discipline in my spiritual practices.   When I was left alone in [the infant’s] room with her I had reverted back all the way to how I was at 16/17 that I would try to take advantage of others.  A few times I put her on my lap pulling her away from the TV and imagined how if we were nude we’d be rubbing together.  Then, when she was sitting on the floor I rubber her diaper over her crotch area imagining as if I were playing with her.” Id. 3.

Tumlinson confessed to having written the journal.  He even confessed that he touched the child over her diaper, but never anywhere else, nothing sexual.  He told police his journal was pure fiction, documenting impulses and fantasy only.

For Tumlinson, the question is, what evidence is there that he committed the crime of lewd act upon a child under 12?  The baby girl is too young to talk about what may, or may not, have happened to her.  And as you can see, accusations can get you arrested, but evidence supporting those accusations must be presented in order to convict. Unfortunately, there are more confessions out there than there are crimes, and we’ve all seen a few shady interrogations that have led to confessions to crimes that don’t exist.  Fortunately, we have laws that demand evidence to support accusations.  We call this the “corpus delicti rule”, and it says that “a person’s confession to a crime is not sufficient evidence of a criminal act where no independent direct or circumstantial evidence exists to substantiate the occurrence of a crime.” Id. citing State v. Allen, 335 So. 2d 823, 825 (Fla. 1976).   Under this rule, “the State is required to prove corpus delicti independent of the defendant’s confession before the confession may be admitted into evidence”.  Id.

Now, rules are made to be broken, and you’ll find the vast majority of these broken rules involve sex crimes.  Our courts and legislature bend over backwards to help the prosecution prove a sex crime.  To that effect, our legislature carved out an exception to the corpus delicti rule for sex crimes found in Florida Statute 92.565.  This statute eliminates the full brunt of the corpus delicti rule for sex victims under the age of 12, but the statute still requires the state to present some independent evidence corroborating the fact that a crime occurred.  Is there an exception to the corpus delicti rule in a terrorism case?  No.  In a murder case?  No.  In a home invasion case?  No.  Only sex crimes.

We know that Tumlinson confessed to the police that he touched the outside of a diaper, and his journal entries indicate a bit more went on.  We know that the baby’s momma left Tumlinson alone with her child, so he had a chance to do what was reported in his journal.  So, did the judge permit the state to admit this into evidence? No.  The prosecution was denied their request to admit this evidence because they could not demonstrate that a crime was committed.  Tumlinson’s molestation charges were dismissed.

Yes, the state showed that Tumlinson was alone with the baby, but proving that a crime could have been committed is not the same as providing evidence of said crime.  Hats off to the trial court judge, the Honorable Mary Handsel, for making the right call.  No judge gains popularity by following laws whose consequences lead to the dismissal of a molestation charge.  And, hats off to the Second District Court of Appeals, for affirming Judge Handsel’s ruling.  The dissent in this appeal seemed to believe that the focus of 92.565 was the “trustworthiness” of the journal entries, and because the dissent found the journal entries “trustworthy”, they believed that the state should have been permitted to use the found journal as evidence.  But the majority opinion correctly reasoned that 92.565 requires “competent substantial evidence that corroborates the confession.” Id.

Finally, back to the original question: can you be convicted of a crime without evidence?  Yes. When it comes to sex crimes, anything can happen.

Florida voters backed a constitutional amendment to approve medical marijuana, which broadens the very limited therapeutic uses lawmakers in the Sunshine State approved two years ago. The current law does grant permission for those with cancer or other serious conditions that cause seizures or spasms to use low-THC derivatives (so long as they aren’t smoked) for treatment of their conditions. Amendment 2 will mean people with many other conditions will be eligible to receive the drug.

Now, people can get the drug to treat not only cancer or seizures, but also: Epilepsy, AIDS, glaucoma, post-traumatic stress disorder, amytrophic lateral sclerosis, Chrohn’s disease, Parkinson’s disease and multiple sclerosis. The statute also allows doctors to prescribe marijuana for any similar type of ailment.

The measure was personally backed by a number of criminal defense and personal injury lawyers in the state. It passed with a noteworthy 71 percent of the vote. Still, it is likely to be months before any of the approximately 450,000 people who actually qualify for the drug will be able to get it.

Further, there is the not-so-simple matter of how this is actually going to work. Until then, we need to bear in mind a few things:

Marijuana is still illegal under federal law;

Those caught trafficking (growing, packaging, selling or distributing) will likely face severe penalties under both state and federal statutes;

Possession of marijuana can still result in legal trouble.

This makes Florida the 26th state (plus the District of Columbia) to legalize marijuana for medicinal use.

Florida lawmakers still have to come together to hammer out rules for how the law is going to be implemented and regulated. That process isn’t even going to start until March. In order for patients to qualify, Amendment 2 requires patients to have a three-month doctor-patient relationship with the physician who is prescribing the drug, and that doctor has to be licensed by the state to do so. The Department of Health will be responsible for regulating how the medicine can be distributed, along with requiring identification cards for patients and caregivers.

Meanwhile, opponents of the amendment said they intend to turn their attentions to the legislature to work on tighter restrictions. They want bans on marijuana-infused candy and limits on how much THC in one’s bloodstream can be considered intoxicating for DUI purposes.

They also want to ensure local communities have the power to prohibit the opening of brick-and-mortar stores. Already, as the Miami Herald reported, Miami Beach has passed a four-month ban on medical marijuana dispensaries – which begins after the two-month moratorium built into Amendment 2 expires.

As it currently stands, possession of less than 20 grams of marijuana is a first-degree misdemeanor. Possession per F.S. 893.13(6) may be considered “actual” or “constructive” in nature. Penalties depend on how much of the drug was possessed. If the amount is less than 20 grams, it’s considered a first-degree misdemeanor, which is punishable by up to one year in jail, one year on probation and a $1,000 fine.

Other penalties for possession may include:

Mandatory driver’s license revocation;

Ineligibility for certain government employment;

Ineligibility for certain forms of state aid/ scholarships;

Ineligibility for public housing;

Interference with prospects for employment/ college.

Even in communities (Broward County, for example) that have passed ordinances de-criminalizing marijuana possession, law enforcement officers often still have discretion. In Palm Beach County, Sheriff Ric Bradshaw has vowed not to use the civil citation program.

While this new measure is encouraging, it is by no means the end of marijuana prohibition. Our Miami marijuana lawyers are committed to representing the rights of those who face criminal marijuana charges.

Contact the Miami criminal defense lawyers at Jacobs Keeley at (305) 358-7991 for a free consultation on your pending criminal matter.

Additional Resources:

John Morgan credits voter turnout for medical marijuana approval, Nov. 8, 2016, Associated Press

A few weeks ago, I wrote about how California DUI law could be affected generally should voters pass Proposition 64 this coming November.

If you haven’t read it, here’s the gist:

If Prop. 64 is approved, California would legalize recreational marijuana this November 8th. As the sixth largest economy in the world and an already existing thriving medical marijuana market, it is estimated that the marijuana industry could become a $6 billion industry by 2020.

While THC is the psychoactive component of marijuana that is detected in cases of DUI of marijuana, there is no way to determine how impaired someone is regardless of how much THC is in their system Unlike alcohol, there is not an established correlation between THC and impairment. As a result, a number of companies are racing to create a roadside test to determine impairment of marijuana rather than just presence of THC.

If Prop. 64 passes, there are many more questions that need answering. One of these questions is whether we will see more marijuana-DUI traffic collisions.

The Los Angeles Times consulted with Beau Kilmer, senior researcher at RAND Corp. specializing in drug policy and co-author of the book “Marijuana Legalization” to ask the very same question.

The Los Angeles Times made mention of the fact that AAA announced last week that it was opposing efforts to legalize marijuana in California and Maine citing statistics showing an increase in marijuana related fatal collisions in Washington, a recreational marijuana state. While AAA opposed Prop. 64, it also conceded, “While the data analyzed for the study did not include enough information to determine which driver was at fault in a given crash.”

To this Kilmer responded, “The bulk of the research suggests that driving drunk is worse than driving stoned, but driving stoned is worse than driving sober. The research suggests that when people are under the influence of both marijuana and alcohol, it does increase the probability of getting into a crash.”

But, he added, “If you are going to be objective about this and you really want to know how marijuana legalization is going to affect traffic safety, you don’t just look at the number of people in crashes who are testing positive for THC. You want to look at total crashes and total accidents. It might be the case that yeah, more people are driving stoned, but some of them are now less likely to drive drunk.”

Kilmer added that the studies are not definitive.

Kilmer’s statements are correct in that, if we are to be objective about this, we can’t just look at AAA’s cited statistic. Just because a person has THC in their system at the time of a collision does not mean that the person is driving under the influence. What’s more, it may be that the amount DUI of alcohol related collisions have reduced since the legalization of recreational marijuana in Washington.