Sunday, August 31, 2014


I was interviewed by the Lake City Reporter the other day about “common law grand juries.” It seems that a “common law grand jury” has “indicted” our duly elected State Attorney, Jeff Siegmeister, on a charge of treason, and the Reporter wanted my opinion on what the “common law grand jury” had done. Trying to be as diplomatic as I possibly could, I used a precise legal term. I said it was “a bunch of baloney.”

In the first place, what they “charged” Siegmeister with is neither treasonous nor criminal, and it could conceivably render the “common law grand jurors” themselves subject to prosecution under Florida Statute § 836.09, which says

If any person shall state, deliver, or transmit by any means whatever, to the manager, editor, publisher or reporter of any newspaper or periodical for publication therein any false and libelous statement concerning any person, then and there known by such person to be false or libelous, and thereby secure the publication of the same he or she shall be guilty of a misdemeanor ….

I doubt that Siegmeister takes them seriously enough to prosecute them, but that does appear to be an option which is open to him.

In the second place, there is not now nor has there ever been a legally recognized “common law grand jury.” We derive our law from two sources: statutory law and common law. We can distinguish common law from statute law by its origin—common law comes from judges, statute law comes from legislatures (and historically from kings).   As I will demonstrate, grand juries were not created by common law but by statute law. We’re going to have to look at a little history for me to make myself clear.

The earliest record we have of anything like our modern grand jury goes back to the rule of the Anglo Saxon King Ethelred the Unready. In 997 Ethelred enacted his Wantage Code, which provided:

Let twelve elder freemen, and the foreman with them, retire and swear upon the holy book which is given into their hands that they will not accuse any innocent person, nor screen any criminal.

Thus the grand jury was born as an accusatory body which preferred criminal charges against those suspected of wrongdoing. It has retained this function down to the Twenty-first Century. Modern grand jurors take an oath very similar to the one sworn by Etheldred’s jurors. For example, Florida’s Grand Jurors swear they

… shall not make a presentment against a person because of envy, hatred, or malice, and … shall not fail to make a presentment against a person because of love, fear, or reward.

Florida Statute § 905.10.

Our next evidence of comes from 1166, during the rule of the Norman King Henry II. Under his rule the Assize of Clarendon was enacted. The Assize provided for an accusatory body of twelve men to prefer criminal charges against wrongdoers.

A watershed moment in the development of the grand jury came in 1681, when King Charles II sought to punish the Earl of Shaftsbury, a political enemy. Charles insisted that the London grand jury indict Shaftsbury for treason, and he further insisted that they hold their meetings in public so that he could see how each individual member of the grand jury voted. The grand jury met in secret and refused to indict Shaftsbury. Ever afterward grand juries have met in secret.

The London grand jury’s defiance of King Charles gave the institution a reputation as a protector of the innocent. Only a few years before the American Revolution, the English jurist William Blackstone described the grand jury in glowing tones, writing that

[S]o tender is the law of England of the lives of the subjects, that no man can be convicted at the suit of the king of any capital offence, unless by the unanimous voice of twenty four of his equals and neighbors. [12 grand jurors and 12 petit jurors].

Commentaries on the Laws of England, Volume 4, *301.

Our Founding Fathers agreed with Blackstone, providing in Article Seven of the Bill of Rights that

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.  

Initially, this only applied to the Federal government, but almost all states have enacted statutory provisions creating local grand juries. Depending on the jurisdiction, a grand jury can consist of as few as 18 but no more than 24 grand jurors. In Florida the prescribed number of grand jurors is 21, with 15 constituting a quorum. Harking back to the days of Etheldred, it requires a vote of at least twelve grand jurors to bring criminal charges against anyone.

Grand juries, therefore, are and always have been creatures of statute. Whether it’s the Assize of Clarendon or the Bill of Rights, either a king or a legislative body has passed a law enabling the formation of grand juries. As I previously said, common law does not look to statutes, but to previous decisions of judges. In the strictest sense, then, there can be no “common law grand jury” because no grand jury was ever created by a judge’s decision.

As a matter of fact, the common law would not apply in the United States if it had not been enacted into law by local statutes. (Louisiana, for instance, is not a common law jurisdiction. Their legal system is based on the Napoleonic Code).  Florida Statue § 2.01 makes the common law applicable in Florida by saying

The common and statute laws of England which are of a general and not a local nature, with the exception hereinafter mentioned, down to the 4th day of July, 1776, are declared to be of force in this state; provided, the said statutes and common law be not inconsistent with the Constitution and laws of the United States and the acts of the Legislature of this state.

If our legislature had never passed any sort of law concerning grand juries, then quite possibly the Assize of Clarendon’s grand jury would be the law of Florida. But it’s not because it is inconsistent with Florida’s statutory law creating grand juries. At the risk of being redundant: when the Florida legislature enacted its laws relating to grand juries, it voided any previously existing English law on the subject, either statutory or common.

Conclusion: 1. There cannot be a “common law grand jury” because there never was a common law grand jury. English grand juries prior to July 4, 1776, were created by statute. 2. Even if there were such a thing as a common law grand jury, the Florida legislature voided it when they enacted laws governing grand juries. 3. Any group which is purporting to act as a “common law grand jury” is engaging in a legal nullity.

Thursday, August 28, 2014


A recent article entitled “An Extra Period in The Declaration of Independence Might Change Our Understanding of Government” says that we may have been interpreting the Declaration of Independence all wrong for the past 200+ years. The suggestion that we must reinterpret the Declaration comes from Danielle Allen, an eagle-eyed professor at the Institute for Advanced Study. According to Allen, the misplacement of a single period requires us to completely reinterpret the Founding Fathers’ conception of the role of government. As it has come down to us, the disputed language reads:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed ....
According to Allen, this language should actually read:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed ....
Do you see the discrepancy? You have to look close. It’s the period after “Happiness,” which Allen says shouldn’t be there. Some early copies of the Declaration don’t have the period, and some do. The original may or may not have the period. The original Declaration is so old, frail, and faded that trying to verify whether the period is there might destroy the document.
Allen contends that removing the period after “Happiness” makes "securing governments" a part of the same sentence as "pursuing happiness." She says omitting the period shifts the emphasis of the language from personal rights to government responsibilities. Instead of the people having a right to see to their own happiness, the government should be tasked with the job of making them happy. Under the revised interpretation, it seems our Founding Fathers were actually proto-postmodernists who thought big government should look after little people.
The first problem that I see with the interpretation is that the whole idea of the American Revolution was to get big government out of the people’s business.
The second problem I see with the interpretation is that whether there’s a period after “Happiness” or not, it doesn’t make any difference. Just as pronunciation and spelling of words change over time, so does punctuation. I’ve recently been reading a lot of old court documents from the early 1800’s, and I noticed a difference in punctuation from modern usage. They used to use dashes in the place of periods. The usage was not uniform; sometimes they’d use dashes and sometimes they’d use period. We don't use dashes like that any more, but how we use them now doesn't change what the Founding Fathers meant when they used them back in 1776.  What I’m saying is that whether there’s a period after Happiness” or not, the sentence ends with “Happiness,” putting the pursuit of happiness in a separate sentence from securing governments. My interpretation is reinforced by the fact that the first word after the dash, “That,” is capitalized. From what I have seen of old manuscripts, even in olden times when they over-used capitalization, they only capitalized nouns and the first word of sentences.  "That" isn't a noun, so it wouldn't have been capitalized unless it was the first word of a sentence.
In summary: 1. Don't run the risk of destroying the Declaration of Independence looking for a period. 2. Whether there’s a period there or not, it doesn’t change the meaning of the document. 3. The Founding Fathers intended to end the sentence with the word “Happiness.” 4. The Founding Fathers were trying to throw off governmental micromanagement, not endorse it.
Allen is engaging in the lawyer’s favorite pastime, “flyspecking.” Flyspecking is a process whereby lawyers try to wring out hidden meaning not readily apparent from a cursory reading of a document.

Monday, August 25, 2014


When I first started working with the Public Defender’s Office back in the early 70’s, I once heard an old-time sheriff lamenting that law enforcement had been ruined by that Miranda decision. I immediately thought “What a fossil!” It seems that our elders are forever lamenting how things were back in the day when they had to walk to school uphill barefooted in the snow. When I heard the sheriff's lament, I immediately made a vow that I would never act like him. I am afraid that I am about to break that vow, because I am going to talk about how things used to be. I will qualify my remarks (and try to avoid sounding like a fossil) by stating emphatically that the good old days weren’t all that good, and that law enforcement is light years ahead of what it was when I was a young whippersnapper. But I also think that looking to the past can help us learn lessons that are applicable to the present day.

Neil Kirkman, one of the first [if not the first] directors of the Florida Highway Patrol, is supposed to have had a hiring policy for troopers which required recruits to be over six feet tall and not encumbered by excess body fat. I don’t know if Kirkman truly had such a policy, but I do know that when I was a boy, FHP troopers were all tall and athletic. When I first started working as an assistant public defender, there was a trooper in our circuit who supposedly was ordered to lose weight or be fired. The trouble was, he wasn’t fat. He lifted weights, and he had massive muscles. He saved his job without having to lose weight by getting his doctor to write a letter to Tallahassee certifying that he was not fat, he was just extremely muscular.

It seems that back in the 50’s, 60’s, and early 70’s almost all law enforcement officers were big men who carried barbaric weapons such as nightsticks and slapjacks. Arrestees usually cooperated. Those who didn’t were subdued without being shot, Tasered, or peppersprayed. A big, muscular officer who is obviously armed with a non-lethal impact weapon commands compliance.

In the mid-70’s officers began to shrink as hiring practices were made less discriminatory.  I’m in favor of non-discrimination, but I think sometimes you can have too much of a good thing, as when you hire a 5’2” 120 pound applicant because you don’t want to discriminate. I never did a scientific study of police shootings during my career, but I recall a number which I felt could have been avoided if the officer involved had been a little larger and more muscular. I do vividly recall one shooting in which the officer, a small man, said he had no choice but to fire his weapon at his physically much larger assailant. I tended to agree that if he hadn’t fired, he would have gotten a severe beating at the least and may very well have suffered death or great bodily harm. I also thought that the situation might well have been avoided and the arrestee might still be alive if the officer had only been a bigger, more muscular man.

It is improper for arrestees to factor in the size and fitness of an officer when deciding whether to violently resist, but they do. I recall a rather small officer telling me about an arrest he made in a murder case. He said that the suspect’s brothers, all big men, became so belligerent that he feared they were going to attack him. Just in the nick of time, a huge officer (who coincidentally had a reputation for being able to handle himself in a scuffle) arrived on the scene. The brothers immediately lost all their fight when he got out of his patrol car and told them that they’d better settle down.

The pictures I have seen from Ferguson suggest that Michael Brown was huge (6’+, 250+ lbs.), while Darren Wilson was rather small. I haven’t seen any vital statistics on Wilson, but from the photos I estimate his size to be around 5’9”, 160 lbs. Let’s perform a thought experiment. What might have happened if Michael Brown had been confronted by an officer with the proportions of one of Neil Kirkman’s FHP troopers? What if the officer had been armed with a slapjack? Might Brown still be alive if he had confronted a more physically formidable officer?

Saturday, August 16, 2014


It must be more than twenty years ago that I was returning home from work and saw three or four police cars parked in front of a house. Naturally, I couldn’t just drive by the place. I pulled in and spoke to the ranking officer on the scene, a huge, muscular sergeant who stood half a head taller than my 6’2”. He told me that there was a knife-wielding lady barricaded in the house. The lady, who had a history of mental illness, had used the knife to chase her family members out of the house. The family called the police, the police responded, and the standoff ensued.

When I arrived, the officers were preparing to storm the house.  The SWAT team had not been summoned for the very good reason that they didn’t have a SWAT team at that point in history. What they had was four officers wearing regulation uniforms and armed with service revolvers. The officers  had no ninja suits, no camouflage, no helmets, no Tasers, no flash-bangs, and no ballistic shields.

After a brief conference, the officers decided that the best thing to do would be to charge through the front door. I didn’t think that was a very good idea myself, but that’s what they decided to do. They kicked the door open and entered fast, hoping to grab her and overpower her before she stabbed anyone. She reacted by attacking them, holding the butcher knife over her head like an icepick and stabbing at them repeatedly. The way she stabbed with the knife reminded me of the needle on a sewing machine. The officers retreated from the house, she slammed the door shut, and the siege continued. I would later jokingly describe round one by saying that the officers went through the front door single file and came back out four abreast.

Round two began with a planning session. The officers decided that they needed to attack on two fronts rather than one, and that they needed some way to keep her out of stabbing range as they subdued her. One officer armed himself with a mop, and one armed himself with a bedspread. I watched through a window as the officers made a simultaneous advance through both the front and back doors. They moved slowly this time, repeatedly commanding the lady to put the knife down. Instead she attacked the officer who had come through the front door with the mop. Using the mop as though it were a pugil stick, the officer poked her in the face with the rag end of the mop. She decided to attack the officers who had come through the back door. Using the bedspread like a whip, the back-door officer slapped her in the face as the front-door officer advanced and poked her with the mop again. She dropped the knife, and they were able to grab her and subdue her. They dabbed at her bloody nose and immediately transported her to the local mental health facility by way of the emergency room. The lady was black.

The objective observer might characterize this action as a Keystone Kops or Mayberry RFD operation, but consider one undeniable fact—the lady survived the confrontation with only a bloody nose. Here is another undeniable fact—the officers willingly risked serious personal injury to avoid using deadly force against her. When she attacked with the knife, they would have been justified to shoot her, but I never saw any officer make any move to draw his sidearm. I tell this story to make a point which runs counter to conventional wisdom. Justifiable homicide is often avoidable homicide. The officers would have been justified in shooting her dead, but they worked hard to find a way to avoid killing her. It was admittedly unorthodox but it was definitely non-lethal.

I have handled a number of cases where officers would have been justified in using deadly force, but opted to risk injury by using non-deadly force. Almost all of those cases were handled years ago before the advent of SWAT teams, Tasers, camouflage gear, and military style body armor. Most of them occurred after nightsticks went out of general use.

One of the earliest cases involved a black gentleman who was an expert martial artist, having a black belt in karate and a short temper. He engaged in three epic fights with the police, each of which involved several officers attempting to subdue him. In all three cases, the officers were eventually able to get him under control at the expense of black eyes, bloody noses, and assorted lumps and bruises. Apparently this gentleman liked to fight, because he also engaged in numerous scuffles with people who were not law enforcement officers. Finally, he attacked the wrong civilian and was shot dead. The police were understandably reluctant to bring charges against the killer.

Another early case involved a black man about my age whom I defended multiple times on various charges. He didn’t know martial arts, but he knew how to fight, and he was as strong as a bull elephant. One evening he got a little too much alcohol in his system and engaged in a melee with a number of patrons in a bar. He was prevailing in his battle with the bar patrons when the police arrived. It took six officers to subdue him, and one of them suffered a broken arm. My client survived the encounter with bumps and bruises but no bullet wounds.

One last non-lethal story. We were taking the deposition of the arresting officer in a resisting arrest case, and he was describing how the altercation occurred. “I could tell by the way that he jumped out of his car that he was going to fight me, so I took off my gun belt and put it in my patrol car before approaching him.”  Naturally, we wanted to know why he did that. “I wasn’t going to shoot him, and I didn’t want him to have a chance to get my gun and shoot me in the scuffle.”

When I worked with the State Attorney’s Office, I investigated numerous police shootings. In my experience, the vast majority of people who got shot by the police were white. Usually, when the police shot someone, that person was presenting a threat of death or great bodily harm. Few of the people shot by the police were unarmed. Most of the shootings I investigated occurred after the proliferation of SWAT teams, and a significant percentage of the shootings were done either by SWAT teams or officers with SWAT training. Most were ruled justified, but I believe that many of them were avoidable.

I handled one case which resulted in rioting. An officer stopped a drug suspect after a high speed chase and had him put his hands against the roof of the patrol car in order to search him. The young man spun around and elbowed the officer in the head, knocking him to the ground. The officer had his service revolver in his hand and his finger on the trigger as he searched the young man. The gun had a hair trigger. When the officer hit the pavement, the gun went off sending the bullet on an upward trajectory which grazed the man’s back from bottom to top and hit him in the back of the head, killing him.
The officer did a number of things wrong. He had backup at the scene and could have safely holstered his weapon while he searched the man. He should not have modified his firearm to give it a hair trigger. He should have kept his finger off the trigger and outside the trigger guard. Doing any one of these three things would most likely have resulted in the young man spending the night in jail rather than being killed.

In addition to investigating police shootings, I handled countless resisting arrest with violence cases. In handling such cases, I noted a trend. Some officers regularly made resisting cases while others almost never did. The officers who almost never made resisting cases had two things in common—they were imposing physical specimens and they were polite to suspects. Smaller officers and officers of all sizes who would not or could not be polite to suspects seemed to make a disproportionate number of resisting cases. To paraphrase Al Capone, you can get farther with a kind word and a giant physique than you can with a giant physique alone.

As the years went by, it seemed to me that officers were becoming more and more prone to making resisting arrest cases. Here are a couple of cases from the end of my career which I refused to prosecute: In one case the report read “He backed up aggressively, so I Tasered him.” In another case, a young man was walking in the middle of the road when an officer pulled up to him and told him to get out of the road. The young man obeyed, but as he was leaving the road, he couldn’t resist “dropping the F bomb” on the officer. The officer ordered the young man to come back, but he continued walking to the side of the street. The officer Tasered him.  
It seemed to me that, at the end of my career officers were not as polite to suspects as they were at the beginning. There’s no metric by which I could measure such a thing, it was just an impression. I think the numbers would show that police shootings were more prevalent at the end of my career than at the beginning. Here’s my armchair hypothesis of why this is so (It may very well be that I am completely wrong): With more and more SWAT training, officers become more and more willing to use more and more force and less and less diplomacy to deal with situations. Dressing up in camouflage or like ninjas promotes a mindset in officers that is more prone to violence. As populations grow and officers become more distant from the people they serve, they act less like police officers and more like soldiers in an army of occupation, treating every citizen they encounter as a potential enemy. I also think that this is an equal-opportunity attitude—they’re just as likely to be impolite to and violent toward people from all walks of life.

I know next to nothing about the police shooting in Ferguson, Missouri, and I don’t like to speak when ignorant on a subject. I will, however, make a few observations. The officer may or may not have been justified. If his action was justified, it still may have been unnecessary or avoidable. If the officer is shown to have acted improperly, it may be that his actions were driven by a militarized attitude towards policing rather than by bigotry. Let's wait and see what the evidence shows before coming to conclusions.

Sunday, August 10, 2014


ABRAHAM LINCOLN'S ALMANAC TRIAL: LINCOLN ON THE CIRCUIT: For my entire career as a trial lawyer, I practiced in the Third Judicial Circuit, which covers seven counties in North Central Florida....