Friday, March 24, 2017

Lawson Lamar's Defense of the Death Penalty Does Not Hold Water

Recently, Lawson Lamar, the former State's Attorney for Orange and Osceola Counties in Florida, wrote an editorial for the Orlando Sentinel defending the death penalty in Florida and defending Governor Scott's removal of the current State's Attorney from the Markeith Lloyd case.  See article here.  It is my opinion that neither his defense of the death penalty or of the Governor holds water.

I respect Lawson Lamar and his service, in every capacity.  I respect his experiences and can understand why he favors the death penalty.  However, I believe his reasoning for his support is specious at best, and his call for the removal of the current State's Attorney is wrong and not good for anyone.

His basic argument for the death penalty is that if we don’t impose it, or at least threaten to, people who commit crimes of all sorts will have no reason not to just kill witnesses, or the cops trying to arrest them.  This reasoning is hogwash and has no basis in fact.  The murder of witnesses is a rare occurrence, for people facing the death penalty, as well as for those who are not facing the death penalty.  And the motive for elimination of the witness may or may not have anything to do with whether the accused is facing the death penalty or not.  Most accused who are facing the death penalty are facing life imprisonment without parole as the next best option if they are convicted.  Most of the people I’ve represented facing these options do not find the life penalty option to be more favorable.

As for whether the threat of the death penalty increases the safety of cops is once again a specious argument.  It is doubtful that a person who shoots a cop considers that he or she may be punished by the death penalty.  They do it to escape or in the heat of the moment.  The penalties for the crime(s) they are committing are not running through their minds before they commit them.  Currently, and sadly, the murder of cops is on the rise.  One reason is for the motives I’ve already discussed.  The other is that we are undergoing a cultural shift in some communities where cops are felt to be an enemy and need to be eliminated.  Fortunately, few ascribe to this kind of thinking and such murders are still rare.  I would also suggest that people who commit cop killings for reasons other than escape or wanting to commit suicide by cop, are the type of thrill seekers who would do such a crime in any case, or are criminals anyway who will use any excuse to kill a cop.  Again, fortunately, there are few of these people out there.

The threat of the death penalty only keeps those who are not likely to ever be facing it honest.  Those who are facing it, who are already sitting on death row or who have committed a crime for which it is a penalty, didn’t care about the penalty for the crime when they committed it and still do not.  Some may have thought they could get away with it, but not many.  The death penalty is State retribution for a crime.  Sometimes, the prosecutors seeking it couldn’t care less what the actual victims of the crime or their family members would have wanted or want.  Some victims do not cry out for the death penalty.  The State seeks it anyway.  So, if you are going to defend it, defend it as a moral and legal State sanctioned retribution for the crime committed.  It cannot be defended as a crime reducing instrument nor as being less costly to the government.  We have seen how many times juries, prosecutors, and cops have gotten it wrong.  There is no telling how many innocent people have been murdered, excuse me, executed, in the name of the State.  So, justify it as revenge or as retribution, but not as a deterrent to crime.

Lawson Lamar also calls for governor Scott to remove Aramis Ayala as the duly and lawfully elected State’s Attorney for Orange and Osceola Counties.  It is my opinion that it would be unlawful for him to do so.  The Governor is authorized to remove a State’s Attorney from a case when such attorney is disqualified to try a particular case (the accused or victim is a relative, the attorney is a witness, etc.) or for any other good and sufficient reason.  See

27.14 Assigning state attorneys to other circuits.—
(1) If any state attorney is disqualified to represent the state in any investigation, case, or matter pending in the courts of his or her circuit or if, for any other good and sufficient reason, the Governor determines that the ends of justice would be best served, the Governor may, by executive order filed with the Department of State, either order an exchange of circuits or of courts between such state attorney and any other state attorney or order an assignment of any state attorney to discharge the duties of the state attorney with respect to one or more specified investigations, cases, or matters, specified in general in the executive order of the Governor. Any exchange or assignment of any state attorney to a particular circuit shall expire 12 months after the date of issuance, unless an extension is approved by order of the Supreme Court upon application of the Governor showing good and sufficient cause to extend such exchange or assignment.

Many people seem to believe, Lawson Lamar included it seems, that the Governor can remove a State’s Attorney from a case, or even from office, anytime that State’s Attorney displeases the Governor, the law enforcement community, or a friend.  If that were so, our State’s Constitution would not call for and allow for the election of the various State’s Attorneys.  The Governor would just appoint them.  If we acquiesce to Lawson Lamar’s call, that could be just what we could have.  Is that what Lawson Lamar wants?  Surely, if it were he under fire, he wouldn’t think so.

If the Governor removes a State’s Attorney from one case or from office, the Governor then chooses who gets to replace him/her from among the other elected State’s Attorneys. Who do you think he’s going to choose?  Someone who may still think the death penalty should not be on the table, or someone he is assured will seek the death penalty?  The death penalty is not requested in many cases, even in many where most people think it should apply.  Whether or not the death penalty is sought is discretionary with the presiding State’s Attorney.  Just like the Governor has discretion to do or not do many things, the State’s Attorney, just like the Governor can use any lawful reason for acting or not acting.  Is what the Governor or the State’s Attorney does in a certain case always pleasing to the electorate or a certain constituency?  Certainly not.  Does that make it wrong, illegal, removable, or impeachable?  No, not if it was otherwise lawful.

What Aramis Ayala did in the Markeith Lloyd case is distasteful and is the wrong decision for the Governor, the legislature, his victims, and, probably, most of her constituents.  But, is what she did unlawful, removable, or impeachable?  No, so long as she can aggressively pursue a conviction for the crimes he is alleged to have committed.  I believe she can do this.  Was her reasoning for not pursuing the death penalty politically wrong?  Probably.  But, did she have the authority to make the decision?  I think yes.

I do not believe in the death penalty and believe it should be taken off the books.  Still, I think Ms. Ayala made the wrong decision here.  Nonetheless, she had the discretion to do so and I do not believe the Governor has, or should have, the authority to remove her from the case or from office as long as the law is what it is.  It would set a very bad precedent.  

Sunday, May 11, 2014


On April Fool’s Day, 2014, the Osceola County Sheriff set up a sting with the stated purpose of stopping and deterring thievery along a portion of the US 192 corridor in Kissimmee, Florida.  The Sheriff stated there had been a recent spike in thefts in public places along the tourist strip.  There are a number of hotels, tourist attractions, outlet stores, and bus stops along the area targeted.  The Sheriff targeted two bus stops and arrested ten persons.  I represent eight of them pro bono.

A team of deputies took a mountain bike, a purse or bag, a laptop, a tablet, and $350.00 and placed it unlocked and unattended at the bus stop.  The bus stops have a rack that holds two bikes and to which the bike may be locked.  This rack was not utilized by the deputies.  The bike appeared to be fairly new and expensive, as did the purse or bag.  The laptop and the tablet were placed in the opened purse.  $350.00 was placed in a pocket of the purse in such a manner as to be hanging out of the pocket and easily visible.  One of those arrested stated that “if a slight wind had come along, it would have blown the money all over.”  The deputies then set themselves up with a camera across the street and watched to see what happened.

The area in which this sting was set up is frequented by many homeless people, many people who may be living in a hotel but are struggling to make ends meet, and the occasional tourist.  I have no doubt that many thefts occur in this area, just like they do everywhere, and efforts by law enforcement to reduce them and catch the perpetrators should be commended.  However, stings conducted in the manner in which this one was do not solve the problem.  Stings conducted in this manner cost the people of the county more in terms of dollars spent than the operation was worth.  The sting took seven deputies from patrolling the streets for approximately ten hours, including a sergeant/supervisor.  And then there are the jail personnel needed to book, house, and feed them, and the prosecutors, public defenders, clerks, and judges needed to work them through the court system.

This sting struck at people vulnerable to temptation, people who are not “natural” thieves.  Only one of them has any prior criminal history involving theft, so it cannot be said as a matter of law that they were predisposed to the theft.  The people who were finally arrested were not out that day looking for something to steal.  They happened upon what appeared to be a miracle, something that would give them temporary respite from their hunger, their homelessness, and that would get them through a few days.  You could compare them to Jean Valjean from the book Les Misérables, who stole a loaf of bread to feed his child, not thinking it would cost him a lifetime of misery.  They saw an unattended and unlocked bicycle and a purse with $350.00 hanging out of it.  They thought it had been abandoned, just like a $5 bill one might find on the ground.  They were knocked down to the ground and handcuffed before they even had a chance to turn it in and be a good citizen. 

Not one of them touched the laptop or tablet, nor did any one of them take the bike or the purse.  If the goal of the Sheriff was to stop thefts in the area, particularly of property, how did this sting help?  Anyone who leaves a relatively new mountain bike unattended and unchained at a bus stop, or an open purse with a laptop, tablet, and $350.00 hanging out of it, is inviting a thief to steal it.  I am not saying such a victim of theft deserves it, or that a person should take property the person knows doesn’t belong to him or her, but an owner has a duty to secure the property and take away the open invitation. 

The persons arrested by the deputies in this sting are victims, too.  All of them are poor, some are homeless, and most are without jobs.  When the deputies arrested them, they had to spend money to bond out, a few lost the places they were living in, they had to take time and find transportation to see attorneys and appear in court, and now they may have criminal records, for which no one will ever forgive them.  If convicted, they could lose their jobs or not be able to get one, they could lose the right to vote, own a firearm, or have certain licenses, and their chances of moving forward and becoming successful are diminished.  They will have to pay fines, court costs, probation costs, and do community service, all of which puts them in a worse place than they were before and makes them more dependent on government services.  If they are not convicted, and the charges are dropped, the matter still remains on their history and anyone who looks at it (potential employers and apartment managers) won’t care that the charges were dropped.  In addition, their mug shots are out there on the internet.  They will never get this part of their lives back.

Actions of this type that are created by law enforcement, even if later found to be lawful, need to be challenged.  The accused of this sting do not have the means to hire representation.  They needed someone to help them exercise their rights in court.  They came to me and asked me to help them and I decided I could and would.  I like challenges like this.  These people do not deserve to be branded for life for an indiscretion that they were led into committing by law enforcement.   Although this case has attracted some media attention, the accused are not the type of people who elicit much sympathy.  I fear we let too many cases such as this slip through and the government wins when it should not.  

Sunday, March 1, 2009

Is making new laws to even more particularize criminal conduct the right way to go? Is incarcerating as many non-violent offenders as we currently do the most cost effective and productive thing we can do?

As the new Florida legislature convenes next week, rest assured, high on their agenda will be criminalizing conduct not already criminalized and strengthening the severity of the possible punishment for conduct already criminalized. Is this really our best option in these tight budget years.

There are a number of places the legislature could loosen up. There is lots of conduct out there that is not really criminal in the traditional sense of what "criminal" means. Take for instance returning a rental vehicle late, a felony if the company complains. How many of you have kept rental vehicles past their due dates? Did you ever think it could make you a felon? Let the rental company use the civil courts, as it has always been intended. What about not returning the furniture you rented on time? Why is that a felony? let the rental company repossess and sue. In either case, if a true theft situation occurs, then fine, go ahead and charge it. But, most of the time this is bullshit.

Drugs! can't they lighten up? Why criminalize a user? Get them help. Educate them. Get them off drugs. Throwing them in jail is not going to do that.

Quit letting the cops steal property from citizens, uneless is is a material and necessary instrument for the crime. taking cars from people who pick up prostitutes and buy drugs is not healping solve the problem. Quit making law enforcement a profit making orginazation.

That's all for now. More next time.

Wednesday, February 11, 2009

What's Wrong With Judges?

What's with judges? Why does their power always have to be used to hurt someone? Why can't they do the right thing just because it's the right thing to do? See These Pennsylvania judges were caught sending juveniles off to camps they personally made money from.

I started paying attention to the law and government when I was very young. I had some knowledge of the Constitution and the Bill of Rights. And I had an idea about what I thought the jobs of judges were.

I thought, and still think, that judges are supposed to be fair and impartial. They are supposed to protect the people from the government. Why is it that when people get power and can do good, they abuse the power? When I was growing up in Texas, judges were sending people to prison for 99 years just for having a joint. How did they sleep at night?

Who cares if a judge has to face re-election or was appointed by some politician. They've got power. They've reached the peak of their profession. Use it to do right. Don't abuse it.