Florida Justice

He is not an attractive person and neither is his history. By that, I mean a history of bipolar disease, addiction and petty crime. Mr. Thompson has been easy pickings for Florida Justice. Unfortunately, Mr. Thompson has not been as easy a mark as the State would like. He has spent the past fourteen years of a twenty-five year seeking justice by motioning the courts for redress. All that he wants is relief from an unjust and unendurable 25 year prison sentence as an habitual offender who has never harmed or threatened to harm another human being. There was no mental health court when Mr. Thompson first offended. Mr. Thompson’s latest crime? He keeps coming back to court with motions asking for sentencing relief and a way to go home to his elderly mother in New Jersey.

Mr. Thompson has never committed a crime against a person. In truth, he was charged once for assault. That crime was a typical domestic conflict that involved having shoved his angry pregnant girlfriend. Apparently, nobody actually got hurt. It just looks terrible as a criminal charge. The rest has been burglary. It is true; nobody likes to have their home or business burgled. But we don’t put people away for 25 years for simple petty burglary. Some may think we should, but we don’t…unless you happen to be bipolar, addicted and represented in court by an attorney suffering the same bipolar disease and struggling with encroaching symptoms. Yes, two months post trial, Mr. Thompson’s attorney was forced to resign from the Public Defender’s Office and enter hospitalization for his mental illness.

Mr. Thompson was arrested on January 12. 1999 on charges related to the burglary of a closed convenience store. He was apparently not very good at this business of committing burglaries, although this certainly was not his first. Of course, Mr. Thompson was apparently high at the time of his offense. In the course of this burglary, Mr. Thompson found a loaded gun, an item easily sold on the streets. He was caught exiting the convenience store with the gun in his possession. Mr. Thompson was charged with various offenses, principally related to a dominating charge of Armed Burglary with a weapon. He had prior incarcerations, once for possession and once for burglary of an unoccupied structure. Mr. Thompson was ultimately sentenced to three concurrent ten year sentences, two for the current offense and one for a prior burglary. He was sentenced to a concurrent 25 year sentence on the main charge. There is no doubt about it. Mr. Thompson was no angel. He was caught virtually with his hands in the till (just outside of the convenience store) and had a history of unarmed burglary of unoccupied structures. So, how did his incarceration go from county time to 25 years of state time?

The last time Mr. Thompson had been held in a Broward County jail, he was discharged without medications and without a referral to mental health. He has related that he was unable to get help at the county Henderson Mental Health Clinic without a referral due to a wait list. In addition, the jail had failed to notify Mr. Thompson, until his discharge, that his father had passed away while he was in the lock-up. Mr. Thompson’s options without medications, a job, secure housing or a support system were slim to none. He committed his last offense and has served 14 years of his 25 year incarceration for that.

The real question is, just how did Mr.Thompson incur so onerous a sentence as is reserved for the most dangerous of our habitual offenders? As previously mentioned, the defense attorney made a number of apparent errors, which, at least in part, reasonably appear to some to have been due to a developing mental health episode. At the time of his trial in 2000, sentencing relief was afforded individuals who committed crimes due to drug or alcohol intoxication. Despite Mr. Thompson’s long history of bipolar disease and addiction, most recently treated by the Broward County Corrections Department, the attorney did not feel confident to bring the issue forward as a defense. The attorney’s difficulties following the courtroom procedures and testimony was the subject of an affidavit lodged at the time of a subsequent motion for a new trial. Disparaging comments had apparently been made, possibly in earshot of the jury, by the defense attorney’s secretary. The Defense Attorney acknowledged that breach in appeal testimony. The Defense Attorney placed Mr. Thompson on the witness stand…a man with bipolar disease, an addiction history and frankly less than appealing appearance. He was exposed to withering cross examination by a prosecution determined to secure habitual offender sentencing for this red-handed crime.

Mr. Thompson is once again before the courts with a motion for relief. This time Thompson’s motion was accepted by the court. Unfortunately, that is only because the prosecution failed to lodge a timely response that would have allowed the court to deny the motion out of hand. Mr. Thompson’s motion is strengthened by the new state Daubert standard of evidence that had not been previously met at trial or in his subsequent appeal. When Mr. Thompson appeared in court on this new motion, the judge accepted the late response by the prosecution and gave Mr. Thompson until early January 2014 to lodge a response as to why his hearing for relief should proceed.

A prison inmate with limited resources is clearly not likely to be capable of a compelling legal response, pro se, to a professional prosecutor’s argument. In fact, not to make a legal point here, but to highlight Florida justice, the law does provide for appointment of legal counsel in order to level the legal playing field. Here, the Florida Rule of Criminal Procedure 3.850(f)(7) requires the appointment of legal counsel for an indigent facing prosecution or a legal challenge. And there is even a ruling that supports the Rule: “…. doubts should be resolved in favor of the indigent motioner when a question of the need for counsel is presented.” Russo v. Akers, 724 So. 2d 1151 (Fla. 1998), quoting Graham v. State. The judge hearing Mr. Thompson’s motion before the court denied his motion for appointment of legal counsel out of hand in court without a reading of the motion.

The response to Mr. Thompson’s motion for relief by the prosecutor is voluminous and detailed with legal references, but clearly asserts that Mr. Thompson ought to be enjoined from making any motions in future unless represented by legal counsel and that his burdening of the courts ought to be subject to Department of Corrections disciplinary action including loss of 5 ½ years of gain time. There is a price to be paid in Florida for standing up and refusing to knuckle under.

Mr. Thompson has pointed out that he has been clean and sober and maintained on medications for his bipolar disease for 14 years. He has had no “incidents” while incarcerated and now works at a minimum security facility. Although Mr. Thompson has previously motioned for a new trial, at this point, all that he seeks is enough relief in reduced sentencing to allow him to qualify for work release and an opportunity to earn money needed for his return home to New Jersey and a decent sober life. Now, is that too much to ask?

An Alternative for Syria

It is not that I disagree or lack a sentiment for peace. Suddenly, America is a pacifist nation. In fact, we are war-weary. My own background includes an education by Quackers.

I truly regret that President Obama made his statements regarding a “red line. I regret that Russia has chosen to ally itself with the regime and that China has chosen to take a position of simple obstruction to help Assad. I regret that the Assad regime has chosen not to participate in the peace talks. I also regret that the rebels have not formed a coalition that could participate in peace talks.

That leaves all of the alternatives mentioned in every discussion moot. Our President has taken a position that may be regrettable, but that nevertheless was a foreign policy statement representing the position of our nation. Nobody objected when he made that clear statement of a “red line”. At this point we have only two real alternatives: support the President, who showed at least moral leadership regarding chemical attacks on defenseless civilians; or humiliate the President and our nation in the eyes of the world and Syria in particular.  There is a price to be paid for isolationism and appeasement that has been demonstrated throughout history.

We are committed to a course of action and have an obligation to stand behind our President. We can then do what is necessary to ensure greater caution in foreign policy assertions and threat of force for the future.

Alice Jay of Avaaz.org on 09/06/13 wrote in an e-mail blast: 

"Iran’s new moderate president condemned the gassing and Obama signalled he'd work with anybody" to resolve the conflict. Let's urgently call on both leaders to sit down to talks and bring the warring parties together before any more lives are lost.

Right now, the global drums of war are beating over Syria, but if enough of us make sure Rouhani and Obama know the world wants bold diplomacy, we could end the nightmare for thousands of terrified Syrian children under threat of new gas attacks. We have no time to lose."

http://www.avaaz.org/en/solution_for_syria_loc/?buuJZbb&v=28859

Nice of President Obama to Ask Congress...

Has anyone read the United States Constitution lately? Whether one chooses to support the President and his foreign policy decision or not, there are two Constitutional considerations to bear in mind. Article II; section 2 of the United States Constitution provides that “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;…”.
The second consideration is less directly asserted. That is, Article II begins by establishing that “The executive Power shall be vested in a President of the United States of America…”. By tradition, the President of the United States, as the Chief Executive of our government, establishes the foreign policies of this nation. There is nothing that constrains an action by the President in his role as the Commander in Chief of the Armed Forces to enforce those policies, other than to the extent that the President must secure the ratification by Congress for any treaties that he may have negotiated according to Article II; section 2: “He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur;…”. In fact, the Constitution never addresses an obligation for a “declaration of war” before undertaking any military action.
The powers of a United States President go further in the same section that addresses the obligation of the President to seek the advice of Congress in Article II; section 3: “He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper;…”
In short, President Obama has chosen to consult Congress regarding an action of enforcement of his foreign policy position that Sarin gas may not be used in the Syrian Civil War and that this would draw a red line to would incur consequences. Whether you liked that bravura moral policy stance then or now makes little difference. The President asserted a position and has an obligation to ensure a strong and believable foreign policy position. Our nation’s word must have credibility in the community of nations, particularly with those likely to violate international standards of humane conduct.
The debate in Congress, as reported in the public media, may lead some to believe that Congress has the authority to determine the President’s actions in this matter. In truth, our Congress may support the President’s foreign policy stance that Syrian President Bashar al-Assad cannot use Sarin gas to cause the deaths of thousands of non-combatant of his own nation, including hundreds of children. Or they may choose to undermine the credibility of our President, his foreign policy and our nation by voting down a punitive strike against Syria.
Interestingly Senator John McCain, a political foe of President Obama seems to get it. He does not like the idea of a limited strike against Syria. He asserted in a September 1, 2013 Face the Nation interview that President Obama has that power to act and should have done so without hesitation.
Prime Minister David Cameron of Great Britain has already made the same mistake that President Obama has embarked upon. In some idealistic impulse to favor the chaos of democracy, he put the matter of participation in a punitive action against the Syrian regime to a vote and lost. Like President Obama, he had no legal or Constitutional obligation to do so. This places foreign policy principles in the hands of the war-weary vagaries of isolationists, oppositional politicians and libertarians who believe in leaving the world to its own devices unless self-interest is directly at stake. If Winston Churchill had taken that posture when Hitler’s Blitzkrieg invaded Poland, we would have a very different world today; a world of genocide and oppression. National leadership, where are you?

Murder is legal in florida

No, the Florida Legislature did not pass a law legalizing murder, at least not intentionally…we hope. The Florida Legislature creates and enacts statutes. But the Florida Legislature does not make law. That is done in the courts. That may seem a fine distinction, but it is an accurate distinction. The trial of George Zimmerman accused of the murder, or at least manslaughter, of Trayvon Martin has amply demonstrated how a statute is frequently interpreted into law through the judicial process in Florida.

There has been extensive discussion in the print and broadcast media as to the absence of instruction by the judge regarding “Stand Your Ground”, the statute section that initially protected Mr. Zimmerman from arrest at the time of the incident. In fact, instructions to a jury or “charging the jury” by a judge can be critical to the determination of guilt or innocence. Judge Debra S. Nelson ruled that the “Stand your Ground” defense, as well as any discussion of first aggressor could not be considered by the jury. But then, in the consideration of the charge of Manslaughter, there is no need to specifically proscribe a “Stand your Ground” defense, it is written in as a section of the statutory definition of Manslaughter. Where are the investigative reporters? Have they all failed to simply read the law?

Florida Statute 782.07 defines ”Manslaughter; aggravated manslaughter of an elderly person or disabled adult; aggravated manslaughter of a child; aggravated manslaughter of an officer, a firefighter, an emergency medical technician, or a paramedic.—

(1) The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder, according to the provisions of this chapter, is manslaughter, a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.”

So, what is this chapter 776 referring to “lawful justification”? This statute contains the provisions of the so called “Stand Your Ground Statute: Paragraph 3 of that statute chapter reads: “(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.” Judge Nelson, by her charge to the jury has essentially eliminated Manslaughter as a Florida crime. As for the manslaughter of a child, why the jury did not consider 17 year old Trayvon Martin a child is anyone’s guess. For all of the rest of us, it may be a good idea to bring a gun to a fistfight.

This leaves us with questions about the determination of innocence. The motivation ascribed to Mr. Zimmerman by his defense team used the term “imminent harm”. However, the statutes considered by the jury refer to “prevent death or great bodily harm”. Trayvon Martin was armed with a bottle of iced tea and a bag of skittles. Where was that chunk of concrete in evidence or evidence that anything was happening other than that George Zimmerman was on the bottom in a street fight? He had apparently recovered sufficiently to get at his gun and chose to save himself from the humiliation of defeat by an unarmed Black-American boy by firing center mass into his chest at close range.

It is now accepted into Florida law as precedent that there is no need to define “imminent bodily harm”, “great bodily harm” or the factors that may contribute to believe that there is a reasonable threat of death. Nor is it relevant by this precedent to consider the antagonist or first aggressor when a death by deliberate deadly action results in the course of a confrontation. Further, although the statute specifically includes “aggravated manslaughter of a child” in the definition of Manslaughter, it is apparently no longer necessary to consider an unarmed juvenile as a child if they present as a cause for a reasonable belief that there is a threat of “great bodily harm” or “death”. Although untested, why would any other special group defined under this manslaughter statute be protected if their killer can assert belief that deadly force was “necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.”

While it is true that no judge is forced to adhere to the precedents set by Judge Nelson, any good defense attorney would assert these precedents in the defense of a client facing similar charges as George Zimmerman. That defense is essentially the “Coward’s Defense” meaning that anyone losing in a physical or emotional confrontation can “bring a gun to a fistfight” and use it. Murder is legal in Florida whether a racial confrontation, a bar fight or the aftermath of road rage, the resulting manslaughter is moot.  

AFL-CIO is requesting survival strategies

The AFL-CIO has scheduled their annual convention for September 8-11, 2013 in Los Angeles, California. they have asked for feedback and ideas for further discussion to strategize the recovery of the American Union movement. I have written the following in their comment blog page:

 

The economy of the United States grew in strength with the growth of unions. the United States Post-world War II economy peaked with the period of greatest union strength in our history. Unfortunately, unions became overly self-protective, failed to learn the economics and politics of business and failed to meet the challenge of "right to work" states.

If unions are to recover their strength, they must become a relevant voice for labor that seeks partnership with business and government from a position of competitive power. Conservatives tout the value of a competitive marketplace, but powerful business interests always seek market monopoly (ask Monsanto about that). They also seek operational monopoly vilifying the voice of labor. It is up to the union movement to provide labor that marketplace voice and ability to compete.

This can be done through the promotion of training, high standards of worker skills, safety and efficient cost effective delivery of product, that neither foreign or non-union labor cannot provide or compete with. Strategies to bring production home to domestic union shops that guarantee the quality and consistency needed to contain costs.

Unions ought to be most aggressive in the right to work states promoting labor protective legislation, working relationships with state's infrastructure projects and vocational training programs. They should also be seeking worker support to form unions that will provide a voice for some, if not all workers in a plant or business operation to speak and work with management to ensure a healthy productive environment that promotes stability for both the worker and the company, which is needed for a company to flourish.

This is happening at Walmart. that labor movement ought to be a model for the future of the union movement.

Tea party has it wrong

It must be clear by now that by whatever name, Tea Party, Libertarian or just plain old Conservative Republican, there is an ideological foundation to this movement. Those beliefs about small government, government intrusion, unfettered free enterprise, entitlement programs, "the nanny state", they come from somewhere. That somewhere is most clearly the thinking and writing of Dr. Milton Friedman, the Nobel Laureate, who reigned as the American economic guru through the second half of the 20th century. And yet, why is his name never mentioned by those espousing these ideas as fact about the natural law of small government, "unfettered free enterprise", the need to protect the "job creators", and the economic drag of ensuring the general welfare of the people? Could it be that we are watching a huge self-serving movement that very simply gets it wrong on purpose?

Just about every plank of the conservative ideology today was written by Dr. Friedman. Its in his book Capitalism and Freedom that he wrote and revised for a fortieth Anniversary Edition in 2009. Yes, that means that the politics of today have roots going back to 1969. A lot of time to plan and create a political movement out of theory and opinion.

Citizens Insurance Crisis: Is it even real?

The press has been having a field day. There is real controversy in the mismanagement of Citizens Insurance. The issue came to a kind of news fruition worthy of daylight with Citizens’ ham-handed re-inspection program that typically resulted in a doubling or more of rates that had been reduced based upon mitigation discounts determined by licensed independent inspectors working at the expense of the home owner.

The new program, launched about a year ago, meant mandatory re-inspections at the expense of Citizens, or loss of all mitigation discounts. The inspector who came to my home told be straight out that if he allowed previous mitigation certifications, such as for roof strapping, that he declined to inspect due to lack of easy access, he would never get another inspection assignment. Now there’s an independent inspection program.

Interestingly, this inspector recognized that I had the proper roof attachment in the front part of the attic but disallowed it all because he could not see the other two-thirds of the roof without crawling through an existing access hole. This problem has apparently been so prevalent in the process of re-inspections that Citizens sent out letters offering to suspend increases due to loss of mitigation at the time of re-inspection for one year to allow time to create access to uninspected portions of the home. Now that would mean cutting into roof supports in order to create access to gabled roof sections. Not a realistic option. But no matter; the rate increases were implemented regardless. In the meantime, notices went out providing notification of reduced coverages on renewals across the board.

So what is this all about? Why does Citizens, with a huge insurance reserve following years of low claims due to the absence of recent hurricanes, need to increase its war chest of reserves? Guess what? This politically created insurer-of-last-resort is the focus of political disaster planning. Much of it seems to derive from the political belief of Senator Joe Negron, recent State Legislature Senate President, who believes that those in the cone of destruction ought to pay for the destruction without bothering the rest of the people of Florida. In short, Senator Negron believes that it is every man for himself, and let private enterprise step up to protect the best interests of the people. Isn’t it nice to know that in the event of another Hurricane Andrew, Wilma or Sandy, we shouldn’t have to depend upon our government or the people of Florida to step up to ensure disaster relief?

Citizens Insurance has reported cash reserves in excess of $6.8 billion against a worst possible case projection of a $14 billion storm catastrophe. To be sure, that now seems a modest estimate in light of the anticipated insurance claims from Super Storm Sandy that may amount to as much as $25 billion spread across a number of insurers. But then, this is a storm that hit the most densely populated and developed region of the United States. Doesn’t the Sandy experience beg the question as to why a high exposure region, like the Mid-Atlantic States region, can attract private insurance carriers and Florida cannot. Is there anything that Florida can do about that?

The debate over insurance reform and reform of the Citizens Insurer-of-last-resort role tends to look only at whether those in the exposed coastal regions should bear all of the costs or should the entire state, as a large risk pool, bear some exposure in order to keep rates reasonable. As it stands, after Citizens has paid out its reserves, after any re-insurance has been paid out and after any available state excess exposure funds have been paid out, all insurance premiums in Florida will be taxed as a fee to cover the additional losses. There is no such tax to build a state catastrophe fund ahead of the predicted catastrophe, which would reduce the exposure for a higher post-catastrophe tax. Common sense has nothing to do with the apparent expectation that a devastated coastal region ought to remain devastated if it cannot pay for its own recovery. It is not exactly what you might call a good neighbor disaster plan.

The value of the exposed coastal regions of the state as a whole is never considered in the debate over how Citizen’s Insurance costs will be managed. This is really about some people who just don’t want to help their neighbors in times of crisis. Those in the less exposed, non-coastal regions of the State dislike discussion that they will benefit economically in the short-run as staging areas for coastal disaster relief. Consider how Miramar and Pembroke Pines benefitted by rapid growth in the aftermath of Hurricane Andrew. Nor do they consider that, with the changing weather patterns, all of Florida is at risk. Remember that Hurricane Wilma cut across the entire peninsula before churning up the Atlantic and dying off the coast of Nova Scotia. The hurricane season of 2012 was notable for the pattern of storms missing South Florida, including the late season storm Sandy that skirted our coasts before hitting New York and New Jersey.

Like good squirrels perhaps we should be thinking about the development of a state, regional and/or national disaster fund that will ensure that private insurance exposure is manageable and that there are adequate well enforced standards to ensure that insurance risk is well distributed and properly funded. Any one of us, regardless of geographic locale, ought to be assured of financially manageable insurance premiums and effective coverage that will provide a foundation for the costs of regional recovery from a disaster that will surely have economic costs double or triple the cost of actual insured losses.