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.
“Delete that photo! Delete that photo!” he yelled at me as he approached me.
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.
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