Adam's Slate Card for the 2014 Elections

   Over the past few weeks, I have received requests from a number of people seeking advice about the upcoming elections. Rather than continue to respond individually, I have decided to highlight a few key local races. I am staying away from the top of the ticket races. If you are motivated enough to vote, you have probably decided which candidates you are supporting in the governor’s race, cabinet elections, and for congress. Also, if you are seeking my advice, you probably have a pretty good idea of who I would recommend. But here are my thoughts on some of the other races you will find on your ballot:

Sarasota County Commission, District Two: ALEXANDRA COE

     I haven’t met Ms. Coe but we have been in touch a couple of times. She is a New College alum, business woman, organic gardener and a long time resident of Sarasota County. Her campaign is stressing ethics, environmental protections and sustainable development. While I don’t agree with her on everything I think she would bring an important new voice to the commission and would be an approachable representative. I had been supporting my friend Steve McAllister’s write-in candidacy but he recently decided to support Ms. Coe. So do I. http://www.alexandracoe.com

Sarasota County Commission, District 4: RAY PORTER

    I was on the campaign trail in 2008 and so was Ray. We got to know one another a little and have stayed in loose touch. Ray is a solid citizen and moderate in his vision. Over the course of this campaign he has begun to find his voice. I have a lot of confidence in Ray and think he would be a hard working and ethical commissioner.

http://www.rayporter2014.com

School Board Member District 1: KEN MARSH

    I used to be active in the Sarasota County Civic League, as was Ken. We would talk at lunch and I was always amazed at how many projects he was involved with. We have Ken to thank for much of the infrastructure improvements in our school district over the past decade or so. Ken also has a true understanding of budget issues. Ken Marsh is exactly the type of person we should want to serve on the school board. He has earned this election. http://kenmarshforschoolboard.com

Second DCA Judicial Retention: YES on Judges ALTENBERND, SILBERMAN and SLEET.

   In Florida, our appellate judges appear on the ballot every six years. This is an opportunity for the voters to remove judges who are corrupt or incompetent. It would be rare to recommend a No vote, even when I don’t like the judge. We really don’t want to further politicize the judiciary and it is a slippery slope to recommend a no vote against a judge because I disagree with their rulings. Judge Sleet is a new judge and has earned the opportunity to serve a full term. Judges Altenbernd and Silberman have served for a long time and I am a little more hesitant to endorse them.  I am frustrated by the fact that the judges of the Second DCA only explain their rulings in about one out of ten cases. But I can’t necessarily attribute this policy solely to these judges. For more information, you can go here: http://www.floridabar.org/TheVotesInYourCourt

Constitutional Amendments:

   In a perfect world, or in a state with a functioning legislature, the constitution should provide the framework for government and not specify policy. Unfortunately the Florida Legislature does not respond to the needs of the people nor care about the future of the state. Therefore, our constitution allows the people to pursue citizen initiatives when the legislature fails to act.

Amendment One: YES

    I was born in Florida in 1961 and have watched large portions of the state disappear to development. In recent years the pace of destruction has sped up. We are facing an imminent water crisis. The legislature's response has been to defund preservation programs and remove necessary regulations. Amendment One will make preservation a priority by dedicating a portion of the excise document tax to purchase land to put into trust. If you care at all about the future of this state, this is an easy yes vote.

Amendment Two: YES

    The main criticism of Amendment Two is that somehow the standards for medical marijuana will be too loose. Honestly I wish the Amendment went further than it does. However, I think allowing marijuana use under medical supervision seems like a good starting point. The Colorado experience has already demonstrated that the recreational use of marijuana can be taxed and successfully regulated without any major problems. I am a major proponent of criminal justice reform and don’t want to visit anyone else in jail who was using marijuana for whatever reason.

Amendment Three: NO

     This sneaky little amendment will allow the outgoing governor to make Supreme Court and other judicial appointments. This is just terrible public policy, no matter your political preference. Of course it was the legislature who put this on the ballot. Vote No.

Sarasota Charter Review Board:

  District 1: VALERIE BUCHAND – I know Valerie and she is a great voice for the people.

   District 2: VICKI NIGHSWANDER

   District 3: JENNIFER COHEN—Jennifer ran a good race for county commissioner a couple of years ago. She is hard working and trustworthy.

   District 4: SHAWNA MACHADO—I got to know Shawna through my work with the Suncoast Partnership to End Homelessness. Shawna was a homeless student at U.S.F. who overcame adversity to become a community leader. She and I have given talks on homelessness together. Quite simply, Shawna is one of the best people I know.

  District 5: BRUCE DILLON—Bruce is very active with the Nokomis Area Civic Association.

Sarasota Soil and Water Conservation District: MATT WOODALL

   I know Matt and he is a good guy and a hard worker.

Does the Crime of Attempted Driving Under the Influence (DUI) Exist in the State of Florida?

  In this recently filed brief, I argue that the crime of attempted driving under the influence exists under certain narrowly delineated conditions. The Defendant in this case had been discovered asleep behind the wheel of a parked running automobile located in a private lot. The judge refused to instruct the jury on the crime of attempted DUI and the defendant was convicted.

(FROM THE BRIEF)

            In this case, Appellant specifically requested that the jury be instructed as to the lesser-included crime of attempt. Ultimately the trial court denied this request, and refused to allow the jury the option of convicting Appellant of attempted driving under the influence.

     Florida Rule of Criminal Procedure 3.510 provides:

On an indictment or information on which the defendant is to be tried for any offense the jury may convict the defendant of:

(a) an attempt to commit the offense if such attempt is an offense and is supported by the evidence. The judge shall not instruct the jury if there is no evidence to support the attempt and the only evidence proves a completed offense; or

(b) any offense that as a matter of law is a necessarily included offense or a lesser included offense of the offense charged in the indictment or information and is supported by the evidence. The judge shall not instruct on any lesser included offense as to which there is no evidence.

     Therefore, the trial court erred in refusing to instruct the jury as to attempt, if Appellant demonstrates: 1) that attempted DUI is an offense; 2) that there was evidence to support the instruction; 3) the evidence did not only prove a completed offense, and 4) attempted DUI is a lesser included offense of the crime charged in the Information.

      In Florida, there does not appear to be a conclusive answer to the question of whether the crime of attempted DUI exists. The primary case addressing this issue is Mollenberg v. State, 907 So.2d 554 (Fla. 5^th DCA 2005). In Mollenberg, the defendant did not dispute that he was driving. His breath test results were less than a .08, commonly referred to as the legal limit. His urine tested positive for prescription medications and there was other evidence of impairment. The Fifth District framed the question: “Is a defendant entitled to an instruction on attempted DUI where it is undisputed that the defendant was driving but conflicts as to whether he was impaired?” Mollenberg, 907 at 556. The Court noted: “There are no Florida opinions at the district or supreme court level discussing attempted DUI.” Id

         The Mollenberg Court rejected the argument that “where there is some, but not conclusive evidence of impairment, a jury is entitled to consider that evidence as an "act in furtherance" and find the defendant guilty of attempted DUI.” Id. The Fifth District reasoned that such a result would penalize innocent conduct. The Court also rejected his argument that the jury should have been instructed on intent under the rule of lenity. Citing to Florida Rule of Criminal Procedure 3.510(a), the Court noted that there must “be some evidence of the lesser offense before the jury could be instructed on it.” Id at 557.  The Fifth District therefore affirmed the trial court’s ruling:

 That there was no evidence of attempt because it was undisputed that Mollenberg was driving. The evidence of impairment, or partial impairment, is irrelevant because we conclude that attempt does not apply to the impairment element. Id

Notably, the Court declined “to accept the State's invitation to decide the broader question of whether the crime of attempted DUI exists at all in Florida.” Id.

          Appellant avers that the crime of attempted DUI does exist in Florida. In 1981, the Florida Supreme Court approved a “schedule of lesser included offenses” based upon the report of the Supreme Court Committee on Standard Jury Instructions in Criminal Cases. In the Matter of the Use By The Trial Courts Of The Standard Jury Instructions In Criminal Cases, 431 So.2d 594 (Fla. 1981) In 2009, the Court specifically approved “attempt” as a category two lesser included offense for the crime of Felony DUI based upon prior convictions. In Re Standard Inst. in Crim. Cases, 6 So. 3d 574 (Fla. 2009) 

     Florida Statute 777.04(1) defines the crime of attempt: “A person who attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such offense, but fails in the perpetration or is intercepted or prevented in the execution thereof, commits the offense of criminal attempt.” Nothing in this definition rules out a crime of attempted driving under the influence.

     Some crimes include the attempt as part of the definition of the completed offense. For instance, Florida Statute 812.014 defines the crime of “Theft” as follows: 

A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:

(a) Deprive the other person of a right to the property or a benefit from the property.

(b) Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property

     In Sykes v. State, 434 So.2d 325 (Fla. 1983), the Florida Supreme Court held: “By including the words, "or endeavors to obtain or use," the statutory language reveals on its face a legislative intent to define theft as including the attempt to commit theft.” Sykes, 434 So.2d at 327. The Court explained: “When one of the ways to commit the offense is to attempt, endeavor, or offer to commit the offense as otherwise defined, then the offense is fully proved by proving such attempt, and there is no separate crime of attempt.” Id. Therefore: “The jury should not have been instructed that attempt was a lesser included offense, nor should they have been given the option of finding respondent guilty of this nonexistent crime as a lesser included offense.” Id.

      Appellant notes that “actual physical control,” while an alternative method of proving “driving under the influence,” is different than attempt. The Florida Legislature has not defined “actual physical control.” The Florida Standard Jury Instructions for Criminal Cases offers this definition: “Actual physical control of a vehicle means the defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether [he] [she] is actually operating the vehicle at the time.” Fla. Std. Jury Instr. (Crim.) 28.2 Thus mere presence in a vehicle is not necessarily sufficient to establish the offense. Rather, it is a question for the jury to determine whether the evidence demonstrates that a person had “the capability to operate the vehicle.” It is reasonable and logical that a jury could find a defendant guilty of attempted driving under the influence, even when instructed on “actual physical control.” The evidence could show that a defendant had taken an act towards the commission of the crime, yet failed, because they did not have “the capability to operate the vehicle.” An example would be where a defendant was asleep behind the wheel.

        As the trial judge below repeatedly noted, there was some evidence to support Appellant’s request for a jury instruction as to the crime of attempted driving under the influence. (V. 4 pp. 491, 494, 497) Unlike the defendant in Mollenberg, supra, there was no direct evidence that Appellant drove his vehicle while impaired. He was discovered inside the driver’s seat of a running vehicle, which was parked in the lot of an open private business. The jury should have been allowed to decide whether he was in actual physical control, or whether he had attempted to commit the crime.

        In Mollenberg, the court rejected the argument that the rule of lenity required giving an attempt instruction where there was undisputed evidence of driving. In this case, however, the rule of lenity applies. Florida Statute 775.021(1) establishes the rule of statutory construction: “The provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.” Actual physical control is an alternative method to proving an element of the crime of driving under the influence, yet does not include  “attempt” in its definition. Construing the statute most favorably to the accused means that attempt should be offered to the jury as a lesser included offense.

      Under the facts of this case, the jury should have been allowed the option of exercising its pardon power. This is "the jury's inherent power to pardon a defendant by convicting the defendant of a lesser offense." State v. Estevez, 753 So.2d 1, 4 (Fla. 1999) (internal quotation marks omitted)  “This "pardon power" allows the jury to acquit a defendant of a greater offense and convict him or her of a lesser one even though the evidence supports both crimes.” Sanders v. State, 946 So.2d 953, 957 (Fla. 2006) “The jury pardon checks the severity of the consequences required by law.” Id.  

      The rule of lenity and option of the jury exercising its pardon power were of particular significance to Appellant. As a result of his conviction in this case he became a convicted felon and was sentenced to serve eighteen months in the Department of Corrections. Had he been convicted instead of “attempted DUI” he would have faced misdemeanor consequences. 

       Should this Court find that the trial court erred in refusing to instruct the jury on attempted DUI, the decision would have limited impact. Mollenberg would rightfully control the question of whether attempted DUI applied to the issue of impairment. An attempt instruction should only be given in those cases where there is no direct evidence of driving. Appellant was asleep in a car in a parking lot. The jury should have been allowed to consider the lesser-included offense of attempt.

Lecture: Ethically Defending Forensic Science Cases: Daubert, DNA and Beyond

Powerpoint presentation for my lecture on "Ethically Defending Forensic Science Cases: Daubert, DNA and Beyond" delivered May 23rd, 2014 to the Sarasota Chapter of the Florida Association of Criminal Defense Lawyers.

Seminar: Ethically Litigating Forensic Science Cases: Daubert, DNA and Beyond

Making Mitigation Work at Every Stage of the Case

My powerpoint presentation delivered at "Death is Different" in Orlando, Florida on March 7th, 2014, can be found here.

A Texas law allows defendants to fight bad forensic science.

Scientific evidence can be the most convincing element of a criminal trial. But sometimes it's wrong—and for the first time, a state's justice system has recognized that and adjusted accordingly.

Important decision on impact of flawed forensic science and ineffective assistance of counsel

This United States Supreme Court decision is rather straight forward but the overall discussion provides
insights into the development of flawed forensic science claims during post-conviction relief focused on ineffective assistance of counsel.

Forensic Science Training in Florida

    I was fortunate to attend the “Daubert Litigation Training for Florida Criminal Defense Attorneys” held January 31, 2014 in Orlando. The seminar was sponsored by the Innocence Project of Florida, the Florida Association of Criminal Defense Lawyers, and the Florida Public Defender Association.

   Seth Miller put together this seminar in a creative manner. First speaker Joe Sanders is a Plaintiff’s consumer attorney who has litigated Daubert issues in a variety of contexts. His presentation contained a wealth of useful material. Keith Findley, Director of the Wisconsin Innocence Project, gave a comprehensive history of the rise and fall of the “Shaken Baby Syndrome.”  Carrie Sperling from Wisconsin had many helpful pointers about what should be included in a Daubert motion and hearing. And Ernie Chang knocked ballistics and firearms evidence out of the park. The litigation that he described sets the new standard for effective assistance of counsel in any case where firearm or tool mark identification is at issue.

    When we think about the three sponsoring organizations we tend to focus on the day to day defense of individual clients. This conference showed how influential our work is to overall criminal justice reform. So called experts have been testifying to made up “facts” and unproven theories for too long. I really appreciate that we now have an opportunity to meaningfully challenge false forensic science evidence.