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The picture I took before Miami Beach cops arrested me last Memorial Day weekend. They deleted the image not realizing I would be able to retrieve it.

Any lawyer will tell you that the odds of winning a criminal appeal are almost impossible. This is why most lawyers don’t

This is the picture I took before Miami Beach cops arrested me last Memorial Day weekend. They deleted the image not realizing I would be able to retrieve it.

The picture I took before Miami Beach cops arrested me last Memorial Day weekend. They deleted the image not realizing I would be able to retrieve it.


Any lawyer will tell you that the odds of winning a criminal appeal are almost impossible. This is why most lawyers don’t even do appeals. And the ones that do charge a fortune.

In fact, the odds of having the appellate judges even read your appeal without throwing it out on a lack of merit are against you.

According to Ruggero Aldisert, a federal appellate judge who wrote the book, Winning on Appeal, which he describes as a “book for lawyers”, the figures are winning an appeal are sobering.

ALL APPEALS……………………. 9.5%
Criminal………………………….5.6
U.S. Prisoner Petitions…………..9.5
Other U.S. Civil Cases…………..11.0
Private Prisoner Petitions……….9.9
Other Private Civil Cases……….12.2

From this, we conclude that the reversal rates from 1998 to 2002 for all appeals averaged 9.54 percent. Expressed otherwise, here are your odds of reversing the district court:

All appeals: 1 in 10
Criminal cases: 1 in 18

Private civil actions: 1 in 9

But those figures refer to the federal appellate court system. The figures for the circuit court system, which is where I filed my appeal, are even harsher.

According to the U.S. Court of Appeals judicial case load profile, in 2007 there were 58,410 new Appeals filled in the U.S. added to the overflow cases of previous years, the total was 62,846 cases waiting to be heard. Out of those 31,717 were terminated on merits alone and 28, 755 were terminated on procedural applications, meaning roughly 96% of appeals cases were not fully heard.

That is probably why a lawyer I met at the Abbey Bar earlier this year bet me a $100 that I would lose. He couldn’t stand the fact that a non-lawyer would have the gall to even pretend he had a chance in pulling this off. Much less speak about it with such braggado to the point where I was guaranteeing my victory.

Who did I think I was, Joe Namath?

I have that lawyer’s business card somewhere. Maybe I’ll send him an email and remind him of our wager. Or maybe I’ll just let it go because I’ve already proven my point. Besides, I can already see him denying ever making that bet (and yes, I do have witnesses, but whatever, I’ll bring it up if I ever see him again).

On Monday, I ventured down to the courthouse to get a copy of the entire opinion because the one they sent me was missing a page. The missing page, page 4, highlighted just how out of bounds the judge was in allowing my blog posts to be admitted as evidence (the entire opinion is posted below).

We see no reasonable basis that the inflammatory issues of Nazism and Gestapo, or the actions of the Los Angeles Police Officers, should have been injected into this, a misdemeanor trial involving the City of Miami Police. We reject the State’s contention that Defense counsel has a reasonable opportunity to rehabilitate the witness.

To do so would have required introducing and explaining the article, screening the referenced videos and other material taken of the Los Angeles melee, and including the contrite responses of the senior Los Angeles Police officials.

It would, in essence, have turned Miller’s misdemeanor trial into an examination of a violent, cross-continental incident. In that this evidence is more prejudicial than probative under these circumstances, we find the trial court abused its discretion and reverse the conviction.

The fact that a panel of circuit court judges determined that the lower court abused its discretion should be an embarrassment to Judge Jose L. Fernandez. After all, judges are given a great amount of leeway in interpreting the law. But that’s only because they are trusted to remain within the realms of the law. When they don’t, it is considered an abuse of discretion.

Judge Jose L. Fernandez

Judge Jose L. Fernandez committed an abuse of discretion

As defined by ‘Lectric Law Library’s Legal Lexicon:

The exercise of judicial discretion is difficult to attack on appeal, because the decision, by law, was left to the judge in the first place. Nevertheless, judicial discretion must be exercised fairly and impartially, and a showing to the contrary may result in the ruling being reversed as an abuse of discretion.

In my argument, I also brought up the fact that Fernandez issued a harsher sentence against me because he did not like what I had written on my blog. However, I was taking a chance on this argument because I had not made an objection during my trial over the sentencing, meaning the issue was technically not “preserved for appellate review.”

Although the appellate judges acknowledged that I did not preserve the record, they decided the issue was significant enough to address it in their opinion, dedicating more than a page in describing how Fernandez blundered.

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.

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. The trial court’s comments were not so much passing references, but, instead, grounds for sentencing.

REVERSED with directions that defendant be tried and, if necessary, sentenced before a different judge.

I’ve said it before and I will say it again. I will not show remorse for doing something that is 100 percent legal. And any judge worth his cloak should not expect a defendant to show remorse, especially when he had just been acquitted of most of the charges against him.

I was not remorseful after my first arrest and I am not remorseful after my second arrest. So we might have some problems considering I’m supposed to face Fernandez again for my second arrest of photographing cops against their wishes.

And let’s be honest, if he was upset at my blog before and during my trial, you can imagine how he feels about it now. Especially considering my blog pops up at number three and four after conducting a Google search on “Judge Jose L. Fernandez.”

One of the issues I raised in my appeal that was not discussed by the appellate judges was that of the resisting arrest without violence charge. I argued that by being acquitted of refusing a lawful order and disorderly conduct, a resisting arrest without violence conviction resulted in inconsistent verdicts. I further argued that it was legally impossible to be arrested for resisting arrest without violence when there was no underlying charge to base the arrest on.

And I also pointed out that it is legally permissible to resist an unlawful arrest in a non-violent manner in Florida.

So perhaps I will save that argument for my next trial where I am facing a single charge of resisting arrest without violence. I will eventually post the arrest report but I need to get a new copy because all I have is a carbon copy that is barely legible.

However, as you can read below, it almost reads like the report from my first arrest.

On the above date and time, officers were engaged in placing and safeguarding a prisoner and personal property when the def (me) began taking photographs of the area, officers and prisoner without consent, in close proximity of officers. I approached the def and def had a strong odor of alcohol emitting from his breath and def was told to move on. Def refused officer’s order and then came within a foot of this officer after this officer gave him several orders to not come near me while I was safeguarding prisoner property and a police issued bicycle which was stolen.

Def was using the flash which was diverting my attention towards him and the flash going off causing my visibility (illegible). Then after being told to leave for the final time, def approached this officer and attempted to flash the camera in the direction of my face, which would have caused my sight to be impaired.

First of all, as you can see in the picture, they were not “engaged in placing and safeguarding” anything except leaning against the car and bullshitting with each other. There was no prisoner being safeguarded. He was already in custody in the back of the car. An old man who allegedly attempted to steal a cop’s bicycle.

You can also see that I was not within “close proximity” of the officer. Contrary to what I said in my previous post, I was using a 50 mm f/1.4 lens. Not a 70-200 mm lens. It’s been a while.

They initially charged me with disorderly intoxication, but the State Attorney’s Office switched it to resisting arrest without violence.

I hate to be overconfident, but after finally beating all nine charges I was initially slapped with in my first arrest, this one should be a cakewalk.

Carlos Miller’s appeal victory

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I am a multimedia journalist who has been fighting a lengthy legal battle after having photographed Miami police against their wishes in Feb. 2007. Now I am preparing to go to trial for a second arrest where I was jailed for photographing Miami Beach cops against their wishes.

Please help the fight by donating to my Legal Defense Fund in the top left sidebar, which helps pay for the thousands of dollars I’ve acrued in debt since my arrest. To keep updated on the latest articles, join my networks at Facebook, Twitter and Friendfeed.

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