By Carlos Miller
I fought the law and I won.
Almost nine months after filing my appeal, I received notice this weekend that I was victorious. The fact that I prepared my appeal pro se makes the victory that much sweeter.
A three-judge panel determined there were errors both in my conviction and my sentencing. The panel reversed both with directions for me to be tried again before a different judge.
In other words, they realized that Judge Jose L. Fernandez allowed his personal bias to affect my trial, including in how he allowed the prosecutor to use my blog against me – even though I did not even launch the blog until after my arrest – and how he allowed those blog postings to affect my sentencing.
Considering I’ve already served my sentence, which included a year probation, 100 hours of community service and several sessions of anger management class, the reversal might seem a tad too late.
However, the reversal is significant because I was arrested again for taking pictures of cops while I was still on probation.
Yep. You read right. I hadn’t mentioned the second arrest on my blog because I did not want it to interfere with the pending appeal. It’s completely irrelevant but once you experience a biased judge, you get pretty jaded.
Fortunately, the panel of circuit court judges stuck to the actual law when making its decision.
Here are some excerpts from the appellate decision. The decision is posted below. There apparently is a page missing because it goes from 3 of 5 to 5 of 5, but the judges’ decision is clear. I will have them mail the missing page to me this week.
At the trial, Miller testified in his own defense. During cross-examination, the Court allowed the State, over objection, to question Miller about the contents of a blog created by him several months after the incident. In the blog, Miller questioned police tactics across the country. In some postings, officers were referred to as “Gestapo” or “Nazis”. Additionally, the State was permitted to question Miller concerning an article he wrote over a year after his arrest in which he expressed negative opinions about the police and discussed police brutality in Los Angeles.
Despite bare attempts to link Miller’s comments to testimonial bias, the State placed Carlos Miller’s abstracted comments on trial. Miller’s comments, admitted for the limited purpose of impleachment, ultimately became evidence of his guilt.
It is constitutionally impermissible for a trial court to impose a sentence based upon a defendant’s assertion of innocence before, during and after trial.
As evidenced by the sentencing colloquy, the trial court’s concern, in large part, was for the “real” heroes at Arlington, for Miller’s supporters and for Miller’s “shocking” lack of remorse.
You might remember that in handing me a harsher sentence than sought by the State, Judge Fernandez stated the following, making it clear that I was being punished not just for photographing cops against their wishes but for blogging about it.
I can’t imagine why you thought this situation was worth getting arrested for. I can’t imagine for the life of me.
I don’t know if you think you’re some kind of hero or something like that, but if you want to see a hero, go visit Arlington. All right? I don’t think any of those people that are back here are those people that are giving you the — the thumbs up on your blog.
If I were to sentence you to jail, none of those people would volunteer to go in there to serve the time with you. They might say they would, but I guarantee you they wouldn’t. I’m shocked at your lack of remorse.
I’m not really sure what happens now but I’m assuming that the ball is in the hands of the State Attorney’s Office on whether or not they want to continue to pursue this matter. Unlike the first time around, it would only be a trial for resisting arrest without violence along with the obstructing traffic citation. And unlike the first time around, I will not take the witness stand, forcing them to have to prove my guilt without resorting to bringing up irrelevant evidence such as my blog.
And speaking of having to go to trial on a charge of resisting arrest without violence ….
My Second Arrest
It was Saturday night on Memorial Day Weekend 2009. Like in previous years, thousands of black people descended upon Miami Beach for hip hop weekend. And like in previous years, Miami Beach was spending up to a million dollars in paying cops to work overtime, including hiring a multitude of cops from outside agencies to work the weekend.
The result was that 548 people were arrested that weekend, mostly for minor offenses like disorderly conduct and resisting arrest without violence. I was one of them.
I had been shooting video for Miami Beach 411 that night to see what the hype was all about. Every year, hundreds of locals flee Miami Beach for the weekend because they believe the hip hop crowd to be a dangerous element. My goal was to see if this weekend was any wilder or more dangerous than any other weekend. It wasn’t.
After shooting video for several hours, I stopped into the Deuce Bar for a couple of Heinekens. Then I decided to grab a bite to eat and drive home.
On the way back to my car, I spotted a couple of officers leaning against a cop car with one of them texting on his cell phone. I thought this was a perfect photo to sum up the weekend. To show that it really wasn’t as dangerous as people hype it up to be.
I was using a 70-200 lens when I snapped the photo. I was nowhere near the cop to cause him to think I was going to assault him or anything. I continued walking. He yelled at me to stop. I did.
I told him I was not going to delete the photo. I guess he realized that he was in the wrong so he walked back to his car.
And I could have left it that and would not have gone to jail. But to me, this was part of the whole story I was writing, so I walked back and asked him for his name. I figured I would include it in the article along with the photo. Or maybe just write a blog post about it.
As soon as I walked up to him, another cop slapped the handcuffs on me.
“You’re stupid, bro. You’re stupid,” the second cop told me.
They grabbed my camera and deleted my recent images, obviously unaware that I could retrieve them, which I did. They sat me in the back of the car and told me I was drunk. I welcomed them to give me a breathalyzer. They didn’t.
They charged me with disorderly intoxication, which requires a suspect to be carrying a drink in public as well as causing a public disturbance. I was not carrying any booze and asking a cop for his name is hardly creating a public disturbance. And neither is taking his picture for that matter.
I ended up spending the night in jail with a bunch of other guys arrested on baseless charges on Miami Beach.
The State Attorney’s office apparently realized that they had no evidence to support a disorderly intoxication charge so they switched the charge to resisting arrest without violence. And now I am scheduled to go to trial in front of Judge Jose L. Fernandez next month.
It’s like deja vu all over again.
As I argued in my appeal, it doesn’t make legal sense to have a standalone resisting arrest without violence charge because there needs to be some underlying charge to base the arrest on.
I really didn’t think I would have a problem in beating the resisting arrest without violence charge in my second arrest but I was concerned because it was considered a probation violation. I was still a month away from completing my one-year probation when I was arrested.
But the appeal victory should null that little technicality.
And now that a panel of circuit court judges have ruled that Fernandez committed a judicial error in showing his bias against me, I should have no problem asking for a new judge in the second trial.
Maybe we can do a two-for-one to save the taxpayers money.
Carlos Miller’s appeal victory
Popularity: 9% [?]
Related posts:
Support Photography is Not a Crime by buying your electronics through this ad.
Fernandez, as I mentioned in a 
Congratulations.
I am so proud of you.
Congratulations!
Miller for Mayor
Fernandez should DEFINITELY recuse himself because of what the panel of circuit court judges already concluded was his personal bias towards you.
Can you ask for another judge preemptively now that it’s common knowledge that you can’t get a fair trial from him?
..or maybe you shouldn’t…After all, if- I mean when he finds you guilty(because you know he will rule that way), that predisposed bias will be your strongest argument when appealing the conviction.
Bravo, dude! As this one I friend of mine used to say, “YEAH! YEAH! YEAH!”
Maybe after watching “Dexter,” police officers in Miami think they can get away with anything!
That “standalone resisting arrest without violence charge” is so… I don’t know uh… Minority Report with Tom Cruise, and the precrime division.
Dude, I’ve been following your blog for a long time and actually praying for this day. Mazel tov.
Carlos I commend you on your successes. It is a pleasure and an honor to know you. Things will work out in your favor!
Carlos:
Congratulations. I know this has been expensive and frustrating for you, and you didn’t deserve it. I’m glad that someone in the judicial system is starting to pay attention to the law, rather than their own bias. Let’s hope that trend continues.
Congratulations Carlos, a well deserved victory.
While I was sorry to hear you have to go through it again with the other arrest, given this victory I’m sure you’ll win again.
Whenever my RSS reader shows me a new post at this site, I hoped it was this one!
Congrats!! And thank you for opening the eyes of people as to what is going on!
ALRIGHT! GOOD FOR YOU!
The moral of the story is:
Good things can happen when you do the right thing and stand up for your rights.
Congrats Carlos. Looks like there are some judges who know what they’re doing.
Way to go, Carlos. I really enjoy your blog. I’ve been reading it for quite awhile now. Keep fighting the noble cause.
Congratulations Carlos!!!!
I never had a doubt. Never.
As I mentioned to you privately a reader becomes an author when they finally read a book so bad they think “that’s rubbish, I can do better than that”! Enough experiences like what you have endured you will have the same sentiment only replacing “author” with “lawyer”.
So it is with the law. Judges are just people, with biases and disturbingly poor judgement – just like anyone else. Rothstein even bragged to his friends before going to jail that he could pay to get any judge he wanted. In Miami I’m afraid that is par for the course.
What this proves more than anything else is that you have giant brass balls my friend! Always, always in your corner brother. Cheers!
Carlos,
The Judiciaries way of Wishing you a Merry Christmas and Happy New Year. Good work, you’ve been waiting a long time for this to happen.
dk
I’d say “Three thumbs up,” but I’ve only got two. What the heck, lets photoshop a third one. “Three thumbs up!”
And what a great title: Photography is Not a Crime
Please, Carlos, write the book.
mike
Congratulations! Sad however that you had to fight so hard, it should’ve been an open and shut case.
Very glad for you. On the second charge, you should should go after that cop — by that I mean file a theft complaint — who stole your photos by deleting them.
It’s willful destruction of property. And until someone recognizes that, it will continue.
Congrats, man! I’ve been waiting for the news for what seems like forever.
Carlos, I am very sorry to be compelled to congratulate you and say “well done”! It’s just sad for me to think that the act of standing up to an injustice and prevailing is noteworthy and deserves praise. Something, in this country, that should be so commonplace that it is not news, or a reason to start a blog.
Congratulations! At least you found some justice in the appeals system.
That’s awesome, Carlos.
Way to go dude. You’d make a good lawyer someday!
Congrats Carlos! Hopefully word will get out and people will start to realize that they have rights too!
Congrats, Carlos. It’s been a long time coming. Hope the second case blows over so you can leave all this behind you.
GRATS GRATS GRATS
This is great news unfortunatly you have to do it all again with the next bogus charge the hit you with
GOOD LUCK and may God be with you on this fight as well
Victories like that slowly restore my faith in America. Pity it took so long to get the case resolved. Good luck with the change of judge amigo
I hope your lawyer makes that lying cop squirm on the stand about that disorderly intoxication charge, and nails him if he perjures himself to justify it.
Good for you Carlos. I hope they don’t try to nail you on the probation violation. Good luck with the second arrest.
Congrats man!!
Good job, man. You deserve this vindication.
I hope it sticks in Judge Jose L. Fernandez’s craw that you’ve come out on top, and more than likely will again.
Congrats on the victory!
Yay!! WooHoo!! Everybody do the Snoopy Dance!!
Wonderful news! Congratulations!
You are my hero
Now to get that clown Jose Fernandez removed from the bench…
Keep fighting, Carlos. There are plenty more arrogant imbeciles out there like that robed dunce who invoked Arlington while simultaneously wiping his ass with the Bill of Rights. Fight like hell. And thanks.
Fantastic news, Carlos. Maybe there’s hope after all….
Now, if only we could put a stop to these baseless arrests which are done for the sole purpose of harassing those found guilty of “contempt of cop.”
Congratulations. Too bad they’re still up to the same shenanigans.
you fought the law … and the law didn’t win
So let me get this straight, the cop told you to delete it. You refused and walked away and the cop walked back to his car. Then you decided that wasn’t enough drama and you went back and confronted him?
Sounds to me like you were trying to stir something up and you succeeded. Why go back and bother the officer? You got your pictures and he didn’t stop you so what was the problem?
Hey Johnny Law, you mean a "stop and talk" only works one way? WTF?
It’s about time someone fought back and won. I’ve been following your blog for quite some time now and I must say that I’m glad you never gave up. Congrats!
Congrats on the win. Sucks about the second arrest, though.
Congratulations, Carlos. I hope your good fortune continues into the future!
Oh, and Johnny “Law”, it’s quite convenient that you ignored that the cops blatantly lied about Carlos and pressed false charges against him. Talking to the police is not a crime in America, you statist thug.
Congratulations Carlos. I’m sadly a cynic who doesn’t believe that justice exists in America anymore, but you’ve proven me wrong.
Johnny Law
Sucks that Carlos is innocent, right and your boss, huh?
Did the cop lie? How do you know? Sounds like you are jumping to conclusions there.
Did they find Carlos not guilty? I thought the appeal just meant he gets a new trial. Good for him. That just proves that if you feel you are unfairly arrested, the place to prove your point is in court and not on the street.
Johnny Law, he didn’t do anything wrong in asking that cop for his name. You make it sound like he was stupid for doing so. Any reasonable person would want to know the name of someone trying to intimidate you, and I’d consider being approached by a LEO and TOLD to do something they had no legal right to make me do, intimidation.
Congrats. Stick it to the man. They deserve it.
Johnny “law” is falling back on the classic “jumping to conclusions” technique, wherin whenever something improper is done by a cop, it’s not true unless the court says it’s true. But of course, no such leeway is granted for people accused of a crime by the state. In those circumstances, the state proudly broadcasts its accusation against such people without regard for whether they are jumping to conclusions before a court rules on things.
Reasonable people, of course, are allowed to make up their own mind. And given what is known about cops and cameras, it is highly likely that Carlos’ account of the incident is exactly what happened.
@Johnny Law
You are right, court is the place to prove your point. However, a central point here is that in cases where someone is simply taking a picture in a public place (without breaking other laws), asserting their rights on the street or asking an officer questions, even in a disrespectful manner, is not by itself justification for law enforcement to assert their authority, under color of law, to search, seizure or arrest.
I don’t condone disrespectful behavior, from anyone, but especially law enforcement. Charging someone with crimes they did not commit because they have been entrusted with the authority or are in the position to do so, is not only a breach of trust, it is the ultimate disrespect.
Good news Carlos!
Johnny Law
Since when has “Protect and Serve” been replaced with “Shaddup and Mind Your Own Business”?
I just think there has to be more to this story. I don’t buy the “I was arrested for no reason” claim because I hear people say it all the time. I’ve watched folks do some stupid crazy stuff and then listened to them claim the same thing after they got arrested.
Pardon me for being skeptical but people tend to minimize their actions when relaying why they got the cuffs put on. Hell, maybe it happened exactly like Carlos said but I have my doubts.
Either way, good for him for using the court system to defend himself.
Johnny, Johnny, Johnny…
Give it up! You’re in the wrong. You just keep backpedaling, hoping eventually to find a stable place on which to stand.
That. Will. Not. Happen.
You are wrong. Carlos is right. And innocent.
You are delving into the logical fallacy known as No True Scotsman. Look it up, and see why, in the vernacular, you are full of fail.
Thanks for proving my point, Johnny:
I don’t buy the “police properly arrested him for disorderly intoxication… er… resisting arrest without violence” because I see police making fake charges up all the time. I’ve seen police do some stupid crazy stuff and them listen to them claim the same fake charges after they’ve decided to arrest someone for no reason.
Pardon me for being skeptical, but cops tend to illegaly increase their authority when relaying why they’re putting the cuffs on. Hell, maybe it happened exactly like the Police said, but I have my doubts.
this is awesome news. congrats Carlos!!!
get a vievu carlos. it will help protect you against things like this
Did they find Carlos not guilty? I thought the appeal just meant he gets a new trial. Good for him. That just proves that if you feel you are unfairly arrested, the place to prove your point is in court and not on the street.
…after countless hours and money spent. Carlos has already been punished for a crime that he has now been cleared of.
This just proves that cops are free to punish you by making your day, weeks or months miserable fighting off charges conjured out of thin air. Even if they’re dismissed, the cop has already taught you a lesson based on his own whims.
Try to put yourself in the shoes of the innocent dealing with overzealous cops. As this blog has documented, innocent photographers are harassed by cops all the time. At some point, you’ve gotta stand up for yourself and assert your right to do things that are legal, even if an officer doesn’t like it.
Ha! I should have known Johnny Law would show up and have something to say in a desperate attempt at justifying the cop’s actions.
“Why go back and bother the officer?”
Just another fine example of Johnny living in a world where only cops have rights and regular people are in the wrong to even dare speak to an officer, even after the officer has tried intimidation himself.
Oh, and http://bit.ly/johnnylaw
Congrats Dude!
Kudos Carlos. I’ll down a Sam Adams with dinner in honor of your courage and righteous vindication, keep up the fight bro, I hardly ever agree with your political opinions, but, when you’re right, you’re right, you have been if anything inspirational, I thank you for that. God bless man.
A.G.
Congratulations. I would be careful, however, in relying on your appeal in your second hearing. The appellate court threw out your first conviction because the judge allowed into evidence very prejudicial and irrelevant material. As long as the judge doesnt do that again, he can make life difficult for you. I would get a good lawyer.
Johnny Law,
If I were making any part of the story up about my second arrest, then I would have just said the cop arrested me as soon as I refused to delete the photo.
That would make for a better story, don’t you think?
But I explained it just as it happened, including pointing out that I could have walked off without getting arrested, if only I had not dared asked his name.
I am trying to dig up the arrest report so I can post it, but I’m not the most organized person so it may take a while.
However, in the report, the cop made it seem as if I was going to assault him with my camera by moving in close and using my flash in his eyes.
There was no flash used in the above photo and I was nowhere near him for him to feel threatened.
I wouldn’t ask for the judge to recuse himself. I’d say “Hi” at the hearing and make him recuse himself… or the prosecutor to request it.
You have the Right to have access to all evidence against you BEFORE the trial. You have the Right to depose any witnesses including the accuser(s) BEFORE the trial. Enjoy!
Be sure to read criminal procedures to see how the hearings and trial should proceed, and I would sit in on a few trials held by whatever judge you ultimately get to get a feel for their courtroom before your trial or hearings. Have fun or you are doing something wrong.
PS: Hopefully you filed or can still file a civil rights suit both in Florida Court and 42USC1983 in federal court on false arrest in BOTH arrests. No mercy. No fear!
Nice!
So, now that you won a new trial (on just resisting arrest) then… Will it survive a motion to dismiss? If I recall correctly (that resisting arrest without violence requires that there be some basis for the arrest) then it shouldn’t survive such a motion because there was no basis for the arrest.
Of course, you already served the sentence, so I’m not sure how much help it’d be now. What sort of compensation/back wages can you get for the 100 hours?
Best news of the year. I would have gone to jail with you. I won’t say what I think of Fernandez.
Great news! Congratulations on the appellate victory.
It’s a good thing you can use the photo’s EXIF metadata to prove how far away you were AND that the flash didn’t fire.
It’s also a good thing he can point out the cop attempted to delete that EXIF evidence by deleting the photos.
Wow, those are some comments from the presiding judge.
CONGRATS, what a huge and deserving victory!!
@Johnny Law
How do you know when a cop is lying?
When his lips are moving or when he’s writing an arrest report.
“At some point, you’ve gotta stand up for yourself and assert your right to do things that are legal, even if an officer doesn’t like it.”
I second that! And in doing so, in a small way you are standing up for all of us. So THANK YOU for what you’ve done! I also agree with the advice of “SJE”, better to be safe then sorry.
Wishing You a Merry Christmas and a GREAT New Year!
How many iterations of this behavior will it take until the law enforcement realizes that with each iteration it reduces police credibility?
Carlos, Way to Go!!
Congratulations on your victory. You’re every bit as much a hero as those buried in Arlington and I could make a case that you’re even more of hero than many there. Fernandez needs a lesson in what his responsibility is as a judge and you just gave him a first installment.
I agree with Fascist Nation. You really should file a civil rights lawsuit. Easy for me to say on the sidelines? Sure.
If your Heinekens were purchased with a credit card then there is a paper trail somewhere. If you only had two beers you wouldn’t be legally intoxicated thereby strengthening your case.
P.S.- What kind of a bullshit charge is “resisting arrest without violence” anyway? How does the state define it?
congratulations on winning your appeal !
“You’re every bit as much a hero as those buried in Arlington and I could make a case that you’re even more of hero than many there. ”
Jesus walks huh?
Key paragraph: It is constitutionally impermissible for a trial court to impose a sentence based upon a defendant’s assertion of innocence before, during, and after trial.
The State contends this did not occur, stating”. . . the court reviewed the total trial evidence and entered its sentence with a mere passing remark on remorse in the context of a comment on the Appellant’s misbehavior and demeanor.”
On the assumption that we have reviewed the same transcript, we reject the State’s interpretation of the record.
Carlos,
Congrats on the appeal. I am glad to see that it all worked out. If I were in your situation, I would file a motion to disqualify. This judge has already proven his bias against you and it would also be preserved for appeal.
Also, there is an ace in the hole because you already have a decision which more or less confirms that.
I have one that I drew up that worked for someone on my end. Feel free to contact me and I can send it to you.
Congratulations on your pro se win! Been there, done that. I know how tough it is.
I think you should proceed to the next step: Consult a lawyer about suing the hell out of the officers for wrongful arrest, the State for malicious prosecution, and the judge for malicious violation of your civil rights.
Thugs will continue to be thugs as long as no one slaps them down and makes it expensive.
Good luck with it.
Excellent News! Congratulations!!
Congratulations on asserting your rights, and standing up to The Man. Also, shame on both the Florida press corps, and Bar Association for not championing your cause.
Carlos,
You should file a notice for change of judge, or whatever the equivalent is in Florida, which would require a different judge to hear it. In Arizona, you can do that without cause, and it’s automatic, once. You should also be able to request a change of judge for cause, as many times as needed, as long as you can articulate a reason why a judge might be biased or there might be an appearance of bias.
Better yet, see if you can get an attorney to help you, and then file a 42 U.S.C. 1983 suit for the police officers’ violations of your civil rights — they were violating clearly established civil rights, and should have known better. They may be individually liable.
I admire your resilience and perseverance. I’ve been following your blog since you were arrested and have seen the influence you have. I’ve seen people who were against you eventually agree with you. I’ve seen that happen on more than one occasion. I’ve watched this blog grow from a rarely updated documentation of your case to the national watchdog of first amendment abuses. I think you have found your calling, young man!
What Don Cline said in post 83.
Just came to this Carlos’ conflict yesterday via link from Coyoteblog. After extensive reading of lots of months’ blogs and comments, reached that conclusion. Some elaboration follows:
I greatly respect the self discipline Carlos has exhibited in the discussions. I respect, too, the professional, courteous elaboration of some of the paid staff “on the other side”, ie, several police officers and a few prosecutor lawyers. The interactions have, among other results, shown that sometimes deciding exactly what the law says does not happen easily. (Side trail: I suggest the idea that if not a lawyer one cannot figure out the law makes for monstrously serious unpredictability.)
That is why I think Carlos needs to take money from the personal accounts of the perps that have attacked him. No matter their professionalism, no matter their defense of having to make instant, snap judgements, etc, etc (all of which reduce to some technical legal verbage such as “acting under color of law” or similar), they did wrong. I understand (and agree with) the idea that if it becomes too hard for an officer or judge or lawyer to know whether they might suffer personal loss from an error, they will tend to not make hard decisions. But the perps working over Carlos did wrong they should have recognized. Neither situation photographed allows for another interpretation.
The only way to make those with power honest is to make them personally pay for dishonesty. That’s the “send them a message” bit. Take them for enough money that they will recognize that continuing to defy the Constitution will create a cottage industry where ‘pro se’ folks will make a living out of fighting them in courts. That will utterly squash the “we can outlast you” tactic behind which so many Constitution defying acts hide.
Congrats on the appeal.
A bit late, but congratulations on your successful appeal. Good luck with the next.
Allow me to add to the long list…
Congratulations
P.S. Happy Holidays to everyone except JL (u can diaf, lol)
Carlos–Happy for your appellate outcome. Please consider an attorney for the next charge. If you can get another win, and a dismissal on the first charges, I would seriously recommend filing a malicious prosecution suit.
The only way to make them learn is to make them pay.
Great job!