By Carlos Miller
I’ve never found it easy to ask people for money, which is probably why I’m not a preacher or a politician.
But as I prepare my appeal to overturn my conviction for resisting arrest without violence, I realize I just have to come out and say it.
I need help.
That is why I installed the Pay Pal donation plug-in the left sidebar. The donations will not only go towards my Legal Defense Fund, but also towards maintaining this blog, which is gaining in popularity to the point where I’m being asked to upgrade my hosting plan.
I’m already several thousand dollars in debt because I chose to prove my innocence rather than accept the charges against me. And just filing the appeal is costing me more than $400. And I still don’t even have an attorney.
But there is no way I can just accept this conviction without a fight because I never resisted arrest. As soon as the cops pounced on me that night, I simply allowed them to handcuff me because I did not want my cameras to get damaged in a fruitless struggle.
As it turned out, the cameras got damaged anyway because the cops insisted on slamming me to the ground and pounding my head against the sidewalk. All because I continued to take their photo after they ordered me to leave the area.
As many of you know, I ended up spending 16 hours in the County Jail in a horrid experience that no law-abiding citizen should be forced to go through. The arrest has also cost me a significant amount in lost wages because it suddenly became much more difficult to find journalistic work.
I could have easily accepted “time served” the morning after being released from jail and have been done with it, except for the fact that I would have had nine criminal convictions on my permanent record for doing something that was completely legal. Something that is supposedly protected under the First Amendment.
But despite the hardships this arrest has caused me, not to mention the detrimental affects on my health, which I might one day write about, I have no regrets about standing up for my rights that night.The only regret I would have is if I don’t continue to fight this.
Do I have a good chance of winning the appeal?
I have an excellent chance. A jury already found me innocent of disobeying a police officer and disorderly conduct. In other words, I had every right to refuse the officers’ demands to leave the public area because it was an unlawful order.
So how could they justify convicting me with resisting arrest without violence?
Florida Statute 843.02 states that a law enforcement officer must be acting in the “lawful execution of any legal duty” for a suspect to be charged with resisting arrest without violence. It has already been determined they were not acting in the legal execution of a legal duty.
843.02 Resisting officer without violence to his or her person.–Whoever shall resist, obstruct, or oppose any officer as defined in s. 943.10(1), (2), (3), (6), (7), (8), or (9); member of the Parole Commission or any administrative aide or supervisor employed by the commission; county probation officer; parole and probation supervisor; personnel or representative of the Department of Law Enforcement; or other person legally authorized to execute process in the execution of legal process or in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
Also, Judge Jose L. Fernandez may have blundered when he displayed such deep contempt against me and scolded me for my “lack of remorse” in this case – after assuring the jury that he was impartial. I have the audio proof on a CD.
Because I refused to show remorse for crimes I did not commit, Judge Fernandez slammed me with one year probation and 100 community hours. The State Attorney was asking for only 3 months probation and 50 community hours.
According to the Citizen Media Law Project, which wrote in detail about my case, this factor alone could reverse the guilty charge.
While Judge Fernandez is welcome to his personal opinion about Miller, under Florida law, he cannot use Miller’s lack of remorse to impose a harsher sentence.
The article refers to Ritter v. State, a 2004 Florida case where a judge sentenced a child molester to 10 years in prison even though the State was asking for only eight years. The judge in this case stated the following in dishing out his extensive sentence.
“The court is terribly disturbed that I think you still maintain you did not do anything. This jury has in fact determined to the contrary and I am accepting the jury’s verdict having heard the testimony. I have not seen any indication of remorse in this matter.”
Judge Joe L. Fernandez stated the following in dishing out my extensive sentence:
“I am shocked at your lack of remorse”
Ritter appealed the sentencing and won. According to appellate court documents, it is “constitutionally impermissible” for a judge to issue a harsher sentence based on lack of remorse and insistence of innocence.
While a sentencing court has wide discretion as to the factors it may consider in imposing a sentence, it is constitutionally impermissible for it to consider the fact that a defendant continues to maintain his innocence and is unwilling to admit guilt. Although remorse and an admission of guilt may be grounds for mitigation of sentence, the opposite is not true.
.The Citizen Media Law Project believes I can win my appeal based on Ritter’s victorious appeal.
Considering the rather stunning discrepancy between the sentence that the prosecutor sought and the sentence that Judge Fernandez gave, it sure looks like the judge let his feelings about Miller’s lack of remorse color his sentencing. In Ritter, the Florida District Court of Appeal overturned a sex offender’s sentence, which went above and beyond that the prosecutor asked for, because the trial judge took umbrage at the offender’s continued claims of innocence. Miller’s case seems directly on point with Ritter, and if so, Miller’s sentence should be vacated and remanded to a new judge.
So as you can see, I can easily win this appeal if I find a lawyer with common sense. All I need is some financial help.
This case is not just about me but about every photographer who cherishes their rights to photograph in public. Anybody who reads this blog on a regular basis knows arrests against photographers occur on a regular basis, despite the fact that several federal courts have ruled that public photography is protected under the First Amendment.
It’s no secret that the courts have recently been seeking ways to reduce our freedoms. Any legal setback against an arrested photographer is a setback for all photographers because it will become case law and be used to determine future cases.
So if you believe in preserving the First Amendment, please donate a few dollars to this worthy cause.
Because it’s not just about photography. It’s about Freedom of Expression, the most valuable freedom we have in this country.
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24 responses so far ↓
1 srcohiba // Aug 4, 2008 at 6:28 AM
Did you find an appellate lawyer yet?
2 Carlos Miller // Aug 4, 2008 at 8:23 AM
Not yet, dude, so if you have any recommendations, I would love to hear them.
3 Lawyer // Aug 4, 2008 at 9:27 AM
Have you contacted the ACLU?
4 Squathole // Aug 4, 2008 at 9:53 AM
Here’s an item I spotted over the weekend, and immediately thought about you (please excuse the clumsy citation):
Five years ago in the Georgetown section of Washington, [Dr Stephen Hatfill] approached the car of an F.B.I. agent who had been trailing him, wanting to take the agent’s picture. The agent drove off, and his car ran over Dr. Hatfill’s foot. The police later issued a ticket to Dr. Hatfill for “walking to create a hazard,” and he was fined $5. No ticket was given the agent.
Full article: http://www.nytimes.com/2008/08/02/us/02hatfill.html?_r=1&scp=1&sq=Hatfill%20FBI%20foot&st=cse&oref=slogin
That was in connection with the anthrax investigation. Hatfill won one lawsuit against the FBI and continues to pursue other remedies.
5 Momoko Sudo // Aug 4, 2008 at 10:10 AM
People! Stop mentioning the name of ACLU! ACLU doesn’t exist in Florida!
They are extremely under stuffed. They don’t even have resources to have a functioning web site. Their web site is full of broken links. Some pages works only on some days and other days they don’t work. Very unstable.
http://www.aclufl.org/
They don’t even have “know your right” brochures. I had to go to other states’ ACLU web sites to look at “Know Your Right” brochures. Laws differ in states and I believe each state should have the own “know your right” brochure. For your information, in the state of Florida, not only we don’t have “know your right” brochure but also, WE DON’T HAVE RIGHT.
That’s a price to pay for living in a beautiful place like South Florida. In exchange of not having freezing cold winter, we don’t have right.
6 Momoko Sudo // Aug 4, 2008 at 10:18 AM
This is what I got, and the only thing I got from ACLU.
————————————————————
Thank you for filling out a complaint.
If we need further information, we have your address and/or telephone number and can request any documents necessary. We dispose of our files after six months.
Unfortunately, our resources are limited. We take cases that raise significant constitutional or civil liberties issues and which impact others in the same situation. We cannot take all cases offered us. The ACLU of Florida has limited resources and must concentrate them where they are most needed. We are unable to take many cases, even those concerning real injustices. If your complaint is not pursued by our office, it does not mean it is without merit. You may wish to consult the ACLU of Florida’s Suggested Assistance Contact List for information on how to get other help.
We will try to respond to your complaint in writing within 60 days of receipt. If you do not hear from us within 60 days, please contact us.
Sincerely,
American Civil Liberties Union of Florida
7 Momoko Sudo // Aug 4, 2008 at 10:48 AM
Florida’s ACLU has 40 stuffs. When a non-profit is stuffed with 40, then I would think there are only 20 or so lawyers. The rest are administrative.
Think about it. 20 (twenty) or so lawyers for the entire state of corrupt Florida. They may have interns, so let’s make it 25 lawyers for the state of Florida. And yes, they probably have pro bono lawyers. But they are not listed in the web site.
And the system, including the court, is set in the ways that cops get away with a lot of things.
8 genewitch // Aug 4, 2008 at 3:03 PM
I know three lawyers, but they’re all in new york. you want me to ask them if they know of anyone that would take the case pro bono since you’re already down a couple thousand? they’re family, so if they know someone they’ll help me out.
I have to contact them anyhow, i need to find a lawyer to have on call for when i go out and take pictures, too, you know?
the email address i submit is the correct one, and I’m still hoping you can give me the bandwidth statistics for this blog when you have a chance!
–genewitch
9 Carlos Miller // Aug 4, 2008 at 4:17 PM
I have to agree with Momoko about the local ACLU chapter.
I contacted them after my arrest and they said they could not help me because I was being charged with criminal counts and they said they only dealt with civil matters.
But I didn’t do anything criminal. All I was doing was photographing cops which is protected under the First Amendment.
I was even a dues-paying member of the ACLU at the time.
I later found out from other ACLU reps from around the country that there is no such policy in place.
Needless to say, I did not renew my ACLU membership.
10 Carlos Miller // Aug 4, 2008 at 4:22 PM
genewitch,
It can’t hurt to ask them, so go ahead.
As far as the bandwidth statistics from this site, would that be the figures mentioned in the email Lunar Pages sent me, which I posted in a previous post?
CPU: 4.76 % Memory: 1.16 % Mysql: 0.3 % magiccitymedia.com 4.76 1.16 0.3 Top Process %CPU 103 /usr/bin/php Top Process %CPU 66.0 /usr/bin/php Top Process %CPU 62.0 [php]
11 Momoko Sudo // Aug 4, 2008 at 7:19 PM
Carlos, I sent you a face book message with a contact info for civil rights law firm. I didn’t give any description of your case to anyone, so you’d have to do the talking.
12 Momoko Sudo // Aug 4, 2008 at 7:24 PM
In South Florida, cops make the laws. And the laws don’t include the First Amendment.
13 Momoko Sudo // Aug 5, 2008 at 5:24 AM
CARLOS, THEY TAKE CRIMINAL DEFENSE CASES TOO. JUST DON’T THINK ANYTHING AND CALL THE NUMBER I GAVE YOU. JUST TALK TO THEM. YOU HAVE NOTHING TO LOSE BY TALKING TO THEM. I ALREADY BRIEFED ABOUT YOUR CASE. THEY ARE EXPECTING YOU TO CALL. THEY CANNOT HELP YOU IF YOU DON’T CALL. JUST CALL.
14 Silver // Aug 5, 2008 at 6:53 PM
Was the state’s offer before or after trial? I ask, because generally speaking, the offer of the state that you mentioned was 3 mnths and 50 hrs. is part of the plea negotiations. If you don’t accept and go to trial, the judge’s penalty can be harsher than what the state was seeking.
Also, to me, when you keep harping on the judge for his penalty, you lose me. This charge is a first degree misdemeanor with possible penalties of a year jail time and $1000 fine.
People in our system get sentenced to jail time for a lot less than what you were found guilty of. I’m not saying that’s right either, but you keeping harping on this ‘harsh’ penalty and it seems like probation and comm. serv. is the least that the judge could’ve done to you. The fact that you were found guilty should remain your strong objection. Put your time and energy in community service hours to work with project innocence where people have been on death row for 25 years for crimes they didn’t commit.
15 ok corral // Aug 18, 2008 at 2:09 PM
1. You will lose your appeal.
2. You got off easy.
3. You still haven’t posted the entire transcript that shows you lied about what the judge said at the end of the trial.
AND
4. You still haven’t told everyone how and why you didn’t qualify for a free lawyer!
16 Carlos Miller // Aug 18, 2008 at 10:50 PM
ok corral // Aug 18, 2008 at 2:09 pm
1. You will lose your appeal.
Wanna bet on it
2. You got off easy.
For photographing cops against their wishes?
3. You still haven’t posted the entire transcript that shows you lied about what the judge said at the end of the trial.
Would you be so kind to pay the $1,500 it would cost to type it up? I’m already several thousand dollars in debt.
AND
4. You still haven’t told everyone how and why you didn’t qualify for a free lawyer!
Unless you are dirt poor with absolutely no assets, you don’t qualify for a public defender.
Especially now that the public defender’s office is so underfunded that they only want to take felony cases that involve the death penalty. Fortunately, I “got off easy”, so they were not seeking the death penalty.
17 ok corral // Aug 19, 2008 at 9:30 PM
1. LMAO
2. Yes
3. see #4
4. Liar
18 Carlos Miller // Aug 19, 2008 at 10:27 PM
ok corral,
Prove it.
19 Scott // Aug 20, 2008 at 5:16 PM
Or shall I prove it? I have no opinion for or against #’s 1,2, or 3, but # 4 I know about, and I am against you ok corral, read.
he Sixth Amendment, guarantees the Right to counsel of defendants to procure the assistance of counsel. The defendant has the right to not only be heard through such attorneys as he pleases but furthermore, the defendant may represent himself. The court may, however, deny the defendant such a right when it is deemed that the defendant is incompetent to waive the right to counsel.
Originally, the clause was not interpreted as requiring the state to appoint counsel where the defendant could not afford to do so. The Supreme Court began to expand the interpretation of the clause in Powell v. Alabama, 287 U.S. 45 (1932), in which it held, “in a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him.” In Johnson v. Zerbst, 304 U.S. 458 (1938), the Supreme Court ruled that in all federal cases, counsel would have to be appointed for defendants who were too poor to hire their own. When deciding Betts v. Brady, 316 U.S. 455 (1942), the Court declined to extend this requirement to the state courts under the Fourteenth Amendment unless the defendant demonstrated “special circumstances” requiring the assistance of counsel.
Now this means that getting an attorney from the state or federal government is only applicable when it is a “capital crime” (i.e. felony) or if special circumstances take effect, (i.e. mental handicap) and also when questioned you are allowed a lawyer. Not for every case. And this is constitutional law and I know what I’m talking about.
And to Carlos Miller:
At the beginning I would have told you to submit to the police and leave and would still say that if you could do it over. But in light of the wrongful judgment against you I am forced to agree that In The Court you have been treated unfairly.
20 ok corral // Sep 2, 2008 at 7:20 PM
Scott: You have to be legally INDIGENT to get a free lawyer. Carlos the crybaby is not, according to the law.
Carlos: You don’t have to transcribe the ENTIRE trial to prove me wrong. If you are so sure of what was said at the end of your trial, just transcribe that portion…it certainly won’t cost you $1500.
Finally, for now, photography is not a crime. For some it’s a job. You must not be very good if you can’t maintain a steady photography job. You are just a mooch that lives off others–evidenced by your attempt to collect money for your appeal. Get a job flipping burgers, crybaby. Or sell something and pay for it yourself!
21 Carlos Miller // Sep 3, 2008 at 1:19 PM
OKC,
To prove you wrong? Weren’t you one who is supposed to prove me wrong? You’re the one accusing me of lying. Usually when people do that, they have facts to back up their accusations.
I actually have a CD of the trial (which cost only $25) and I plan on posting the important parts of the trial, including the judge’s words, but I probably won’t do that until after my appeal.
And as far as me getting a job, I operate my own business with clients who pay for my photography.
If you are so concerned about my personal finances, I’ll be happy to meet with you to discuss the matter further, face to face. But we both know, you are too much of a pussy for that.
22 Scott // Sep 3, 2008 at 6:18 PM
Carlos, calm down. There is really no way to reason with somebody who doesn’t have any sense.
And by the way ok corral, weren’t you the one who called Carlos a liar for saying he couldn’t get a public defender? So it’s looking like to me you changed your position anyway.
23 danny // Jan 10, 2010 at 11:51 PM
u said, “if you find a lawyer with common sense” i sure have never found one ~
best of Luck
24 Sara // Jan 11, 2010 at 4:32 PM
Silver~
I agree that in the grand scheme of things what happened to Carlos might not seem like that big of a deal. A quick glance at that feed to your left proves that cops can do much worse. However, if we don’t fight the little things we are essentially saying that abuse is acceptable.
***If you give them an inch they will take a mile***
I believe there is a connection between minor police abuse and outright criminal behavior from police. If cops get really comfortable pushing people around over stupid stuff, it’s not that much more of a stretch for them to really cross the line. It’s a slippery slope with them. This is why it’s important for people to stand up to them no matter how minor the issue; that’s if you consider our civil rights a “minor issue”.
Given the economy, I’m hoping that even those with “financial issues” themselves will at least support Carlos with a $5 or so donation. Keeping bully cops in check can only help all of us.
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