DENIS M. devlaming Turner Street Clearwater, Florida Phone: (727) Fax: (727)

Transcription

1 DENIS M. devlaming 1101 Turner Street Clearwater, Florida Phone: (727) Fax: (727) Mr. devlaming was educated at the Ohio State University where he received a B.A. in Psychology (1969). He graduated from Stetson University College of Law in 1972 with a Juris doctor degree. He accepted an appointment as a Florida Assistant State Attorney where he prosecuted in the Sixth Judicial Circuit from 1972 through Thereafter, he started his own law practice and has specialized in criminal defense ever since. Mr. devlaming is the past president of the Pinellas County Criminal Defense Lawyers Association (1987), the Pinellas County Trial Lawyers Association (1991) and the Clearwater Bar Association ( ). He also served as Chairman of the Criminal Law Section of the Clearwater Bar. He was elected statewide President of the Florida Association of Criminal Defense Lawyers ( ) and is a member of the National Association of Criminal Defense Lawyers. In 2001 he was named senior counsel in The College of Master Advocates And Barristers and in 2010 he was inducted in to the American College of Trial Lawyers. He currently serves as president of First Step, Inc., a non-profit organization dedicated to helping needy men and women who are on probation. He is Board Certified in criminal law (1988-present) and has been approved by the Florida Bar to give Continuing Legal Education seminars on every aspect of the criminal trial. For over twenty years he has been asked to lecture at the Board Certification Seminar for criminal trial law. He has authored numerous articles touching upon matters involving criminal law in both state-wide and national periodicals. Mr. devlaming is an adjunct professor at Stetson College of Law in St. Petersburg, Florida teaching Advanced Criminal Trial Advocacy and is a past adjunct professor at the University of South Florida. He has also been a guest lecturer for the St. Petersburg College, the Peoples Law School in Pinellas County and been asked to speak at the statewide Florida Judicial Conference on criminal law and ethics (Circuit and County), the Florida Public Defender s Association (trial tactics), the Gerald T. Bennett prosecutor/public defender trial training program at the University of Florida, the National College of DUI defense held at Harvard law school and Masters of DUI held in Miami, Florida (2006). He has also travelled around the state giving a three hour interactive ethics seminar to the combined offices of the state attorney and public defender. And has coordinated, produced, directed and acted in several mock trials for cable television. Mr. devlaming has been inducted into Who s Who In American Law (1989-present) and has been included in the book Best Lawyers In America (Naifeh and Smith, 1995-present). He was selected as one of the best criminal defense lawyers in Florida by the Florida Trend magazine (July ), Florida Monthly magazine (Sept. 2003), the Tampa Bay magazine (1997-present), the Tampa Metro magazine (2003-4) and Florida Super Lawyers magazine (2006-present). The Tampa edition of the Business Review newspaper included him as one of the Gulf Coast s most influential lawyers (Oct. 2003). The national rating service of attorneys (Martindale-Hubbell) has given him an A rating since He is also listed in that publication s Bar Register of Preeminent Lawyers. His peers have presented him with awards for professionalism and excellence in the field of criminal law by awarding him The Barney award (Inns of Court, 1997), The Hindman award (Pinellas County Criminal Defense Lawyers, 1998), The Richard T. Earle award (voted on by all Pinellas County Florida judges,1998), The William Reece Smith award for professionalism(stetson College of Law, 2008) and the Jack Edmund award (The Herbert G. Goldburg Inn of Court, Tampa 2011). In 2012 he was inducted in to the Stetson Law School Hall of Fame (Florida).

2 From the Pits By Denis devlaming Trials: a search for the truth? Trials are a search for the truth is the standard line. But are they? The more trials that I am involved in the more I am of the opinion that trials involve the perception of truth but not necessarily the truth itself. By that I mean the witnesses who testify at trial may be perceived by the jury as telling the truth or not telling the truth when, in fact, the truth is not found or is mistaken. Who is better at testifying may lead a jury to think that they are more reliable or telling the truth when in fact they are neither. The witness that shows emotion is deemed credible whereas the stoic witness has no sincerity and is hiding something. It is difficult to tell a client getting ready for a trial that the truth is secondary to the way in which witnesses and evidence are presented. And in those cases that turn on the one-on-one, he said, she said it is even more tough to advise a client that the victim comes off more believable and the truth will be hard to expose. Maybe some day there will be a machine that hooks up to the victim and defendant s heads that reads the truth in every case. Until then, we have our jobs cut out for us Dolphins in the Net The new Jessica Lunsford Act increasing penalties for sex crimes against children is well intended. I don't know a soul alive who is in favor of such crimes, save the pedophile. The problem, as I see it, does not lie in the prosecution of those individuals against whom the act was intended, but rather with those individuals whose case facts were never intended to be covered by the new law. Let me give you an example. A 7-year-old granddaughter is visiting Grandma and Grandpa one Sunday afternoon. The son and daughter-in-law were not getting along and were headed for divorce. Grandpa is watching cartoons with his granddaughter on his lap. His right hand is in the vicinity of her rear end, steadying her. The daughter-in-law walks in and sees this sight. Believing that it is an opportunity to gain the upper hand in divorce and child custody proceedings, she reports the incident to the division of family services (she adds that Grandpa appeared to have been rubbing her there ). The police are called. The daughter-in-law swears to the allegation and an arrest is made. The assigned prosecutor, feeling somewhat sympathetic, offers to amend the charge of child molestation to another sex related offense so long as standard sex offender conditions are imposed. If that is agreed, then no jail will be imposed. But when Grandpa learns that he will be featured on the Internet, have to move from his house where he and his wife have lived for 40 years because it is too close to the neighborhood bus stop (what house isn t?) and be required to abide by a curfew and maintain a driving log (etc., etc., etc.), he balks and insists on a trial, because, after all, he s done nothing wrong. The prosecutor, annoyed that Grandpa turned down the deal, sets the original charge for trial. Everyone has their day in court and, you got it, the old man goes down. The sentence he receives amounts to a life sentence because of his age (the Act makes it a life felony for someone over 18 to molest a child under 12). Just down the hall, a pedophile, whose case is shaky because there are no witnesses and the child victim is only five, cuts a deal outside of the Lunsford Act. He skates with probation. There is something drastically wrong here. It is yet another example of how the Legislature has an inherent distrust for judges in handing out appropriate sentences. Everyone believes that the sentence must fit the crime as well as the offender. By making these mandatory sentencing laws, all discretion is removed and situations such as this will continue to happen.

3 Don't get me wrong, I am not opposed to fishing for tuna with a net. I just have a problem with catching dolphin in the net at the same time. When the Innocent Comes Calling Defending individuals who share some responsibility in the accusations placed against him or her goes with the territory. Almost every criminal defense lawyer I have ever spoken to has told me that they would much rather defend someone that they know is guilty than someone who may be innocent. The pressure to defend someone who is not responsible for the crime they are charged with committing is enormous. The accompanying guilt, should a guilty verdict be returned, is similarly untenable. It is the fear that an innocent person will walk into your office for representation that should keep us all on our toes. A number of years ago, a girl in her 20s who lived in a local apartment complex was doing her laundry around midnight. She was using the apartment s laundry room and was alone at the time that a man came in and saw her. Not thinking he would be detected, he took a knife from his pocket, walked up to her, and told her he was going to rape her there and then. She fought back. In the ensuing struggle, she reached for his neck and later told the police that she believed that she had gotten a hold of his neck chain and that it had broken and fell down his shirt. She screamed. He ran. The police were called and responded almost immediately. She gave a description of the suspect and, on a hunch, they walked across the street where there was a bar. When the police walked in, they saw a man (my client) sitting at the bar, alone, generally fitting the description of the assailant. The girl was brought to the scene in a police cruiser and waited in the parking lot. The suspect was asked to step outside. When the police asked the girl if that is the guy who tried to rape you? she responded that he was. He was arrested. When asked where he lived, he pointed to the same apartment complex where the attempted rape had occurred. The police then asked for his consent to search his apartment. He gave it. When the police entered and walked into his bedroom, they saw a broken neck chain on the dresser. Along with the positive identification, they knew that they had their man. My client was placed in the County Jail under a high bond. While in custody, he called a girl that he used to date and asked her to provide a phony alibi. Because she no longer cared for him, she called the police and advised them of what he had asked her to do. The case got stronger. I remember having to call his parents in a northern state and tell them the facts as I knew them. It did not look good. I told them that, if convicted, a long prison sentence was likely. They responded that they were sure he did not do it. (How many times have we heard that?) I told them I would look into the case and get back to them. When I visited my client in jail, I disclosed the evidence to him and told him that one of his options was for me to try and negotiate a disposition. He refused. He protested the charge and insisted to me that he was innocent. I tried to explain the facts of life to him. The evidence, in my opinion, was enough to convict him. If he was convicted at trial, he would assuredly be sentenced to a lengthy prison term. Before the case went to trial, I received a call from the assigned Assistant State Attorney. He informed me that the charges were being dropped and that he was preparing an order releasing my client immediately. I was stunned. It appears as if the man who actually committed the crime was caught in the act of committing an identical crime in a laundry room at another apartment complex down the street. When questioned, he confessed to the incident that my client was about to stand trial for. He gave details that assured both the police and the prosecution that he was, indeed, the one responsible. I must have had the same look on my face that Johnny Cochran did when the verdict came back in the O. J. Simpson case. Utter shock and disbelief. Even I was so sure that the evidence pointed to guilt that I was urging my client to enter a plea for a reduced sentence. I did not believe that, under the facts, he would be acquitted.

4 I told him that the jury would find it a stretch to believe that the broken neck chain on his dresser had actually been there for two days and occurred in an entirely innocent way. I also told him that, along with the positive identification, the attempt to manufacture a phony alibi was damning. He never stopped protesting guilt and I never stopped doubting that he was being less than truthful. That incident has stayed with me for twenty years and is a constant reminder that we must fight each and every case as if an innocent person may be punished for something they didn t do. As an epilogue to this story, I asked the prosecutor to show me a picture of the man responsible. Curiosity turned to shock when I looked at the photograph. He bore almost no resemblance to my client. The show-up outside of the bar was suggestive and, had the real perpetrator not been caught, would have paved the way for a positive in-court identification and conviction of an innocent man. Frightening, isn t it? Why so much? I went to see another lawyer and his (her) fees are less than half of yours! Why do you charge so much? Ever hear that? When I do, I usually respond to the prospective client by saying something to the effect If you were in the market for buying a new Sony TV, then I would recommend that you check every store that sells the model you are interested in and purchase the one that is the least expensive. They are all made in the same place, the same way. Because they are identical, you can t go wrong buying the one on sale. Unfortunately, lawyers are not the same. Choosing a lawyer that deals in freedom is an entirely different matter. Like the brain or heart surgeon, choosing the cheapest may not be the best way to go. Experience, talent, reputation and skill all come in differing levels and at different prices. If you have ever walked in to an art gallery you might see what appears to be two similar paintings on the wall. Maybe they are both of the same mountain range. One is being sold for $300, the other $30,000. You might ask yourself why there is so much price difference between the two. The answer is the same as it is for your question about lawyers. The skill and talent that went into the more expensive painting is obvious if you look at them side-by-side. The reputations of the artists are also such that the higher priced painting is worth more. It s just a fact of life. When I finish explaining the reasons why my fees may be more than others, I usually say But if you would like to tell me how much you can afford, I would be glad to refer you to a lawyer in that price range. Some take me up on that offer. Most just simply take out their checkbook. How much justice can you afford? I m just going to say it. If trials are a search for the truth then the search party is going to cost money. Countless clients believe that because they are innocent, that the system will work and they will be acquitted in short order. Justice will prevail, because it has to. No other choice. Period. When conversations in my office like that take place, I often have to advise the client that their case will be very time consuming and the costs expensive. Being innocent is not enough. I have to explain, for example, that in their DUI manslaughter case that experts are needed. Perhaps an accident reconstruction expert to deal with causation or a toxicologist to testify about blood alcohol levels. Add to that private investigators and court reporter fees. How much will this all cost? they ask. A lot.

5 And then the subject of money comes up. It always does. I can t afford all that. No way. Where do you want to cut? I ask. I guess the experts. Dangerous. The criminal defense lawyer is getting hit like everyone else in this economy. People still have the same problems, they just don t have the money. There is an old adage that when stocks are up, bonds are down and vice versa. Problem is now BOTH are down. Getting a home equity loan is no longer a viable option to pay for junior s defense. Going to the 401k is also out as it has tanked. A call to grandma or that rich uncle is also fruitless as they are hurting too and holding on to what they have. We suffer, they suffer and justice takes a back seat to an economy that no longer allows a fair search for that allusive truth. Many of my constituents are afraid to admit or say it so I will. My business is down a good 30-40%. I m happy now to keep everyone employed and the salaries the same. Profit? What profit? It s a waiting game for me as it probably is for you. Waiting for it to all to turn around. Next year? The year after that? Who knows. And the overhead? No, that hasn t gone down one dime. Only receivables. So where do we stand in 2010? In the same boat. Let s watch out for each other or the vessel that we share together will turn in to a life boat. How and when to settle a criminal case All those who try more criminal cases than settle them, raise your hand. Seeing no hands, I'll continue. Let's face it, we settle far more cases than we take to court. It's a fact of life. If for no other reason, the sheer number of cases we handle cause us to have to choose our fights. How and when to settle a criminal case is constantly asked of us. Many factors go into the equation. Everyone knows that the best negotiations are arrived upon by bargaining from a position of strength. The process begins when you receive the first phone call. THE ARREST Every once in awhile, you are lucky enough to have a client call for an appointment before being arrested. They know they are being investigated and want legal advice before being charged. If you are fortunate enough to speak with a prospective client at that stage, there is much you can do. If the client discusses a viable defense, an immediate investigation may produce evidence to support that defense. A private investigator can be worth his or her weight in gold by producing evidence that later persuades the prosecution (or the investigating police officer) not to bring charges. Talking someone out of an arrest is far more beneficial than trying to talk a jury out of a conviction. As such, all the guns should come out in the pre-arrest stage. If there is no defense, but there are co-defendants, then a well-placed call to the investigating officer or prosecutor s office may result in your client being labeled a cooperating witness as opposed to a defendant. No defense lawyer likes his client to snitch on another represented defendant. In fact, the defense bar is divided on the practice. However when the client s best interests are at stake, the option may be available only early on in the proceedings. As such, the immediate response or investigation during the pre-arrest stage can produce immeasurable results. WITNESS STATEMENTS AND EVIDENCE Witnesses can be uncooperative, forgetful or missing as time goes by. A tape-recorded statement by a stranger who witnessed something critical in the client's behalf, is almost priceless. They come to the table with no bias or prejudice. Finding them and taking a witness statement can make the difference between charges being filed, a beneficial settlement or an acquittal. The statement is also permanent.

6 That is, should the witness be questioned by someone else and give a different version, the tape recording of their own voice played to a prosecutor (or the jury), brings credibility. Similarly, a photograph taken of an alleged crime scene or a well-placed video surveillance can also cast doubt on the strength of those who are accusing your client of having committed a crime. If this evidence is not obtained quickly, it is in all likelihood lost forever. You can explain what would have been shown in a photograph or surveillance but without that tangible evidence, you are left with only words. When you are in settlement negotiations, sliding documents, photographs or other hard evidence across a prosecutor s desk in support of your position is the most effective way to gain their attention. POLYGRAPHS I swear I didn't do it! Now how many times have you heard that? Sometimes it's true. If you explain all the pitfalls and problems of a polygraph examination, but the client still wants to take one, then such an examination should be considered. If the police call you to ask if your client is willing to take one, I usually respond by telling them that I will discuss the prospect with (the client). I typically ask for a few days to get back to them. In the meantime, if the client is prone to take the test, I set up a private examination with someone whom I trust. In other words, if they can pass my polygraph then I will either allow them to take law enforcement's test or I will provide my report to them of the examination that he passed. Although polygraphs are not admissible in evidence (absent a stipulation) nor the end all to stopping charges from being filed or to get them dismissed, they may help in the negotiation process if the prosecution's case is otherwise weak or constitutes nothing more than a one-on-one accusation. TREASURE CHESTS Every mother collects and holds on to her children's memorabilia and awards. You can count on it. Somewhere, there is a treasure chest filled with documents that once occupied the front of the family refrigerator. Whether they got straight A s or won a school award, the document still exists. If their name made it into the paper for athletic excellence, there is a yellowing newspaper somewhere to prove it. In short, everyone has a mother who has collected and refuses to throw out their child s life accomplishments. If you are going to make a pitch for leniency with the prosecutor or the judge, a portfolio demonstrating the past achievements of your client can be of some benefit. Don't underestimate the pack rat capabilities of your client's mother. Make use of it. WHEN TO MAKE AN OFFER Each case is different as to when to make an offer to settle. Sometimes, an offer to settle is made even before an arrest. There may be some concern about limiting the number of charges and so an offer to plead to one charge in return for not filing others, may be the best course of action. There are other times when an offer to settle is appropriate before, for example, holding a hearing to dismiss or suppress evidence. If the motion is not particularly strong, settlement discussions before the motion is heard may prove more beneficial to the client. Should he lose the motion, his bargaining power may drop dramatically. And sometimes, the best negotiations are obtained on the morning of trial. The prosecution may have witness problems, time restraints, evidence concerns or any number of contingencies that cause an acceptable negotiation to be offered to your client. Settlements, negotiations or plea bargaining, what ever you want to call it, are a fact of life to the criminal defense practitioner. The sure winner rarely walks into your office. Even when you think that you have a good case to take to court, it often unravels and you are left with a risk not worth taking. To prepare for and receive a fair and proper settlement, many factors have to be considered and weighed. Timing is also crucial. We all know that the uncertainty of a jury's verdict is a reality that only a guaranteed settlement negotiation can cure.