Florida Criminal Defense and DUI Defense Blog

5Apr, 21

criminal defense attorney

People ask me, “Do you limit your practice to the courthouses in your neighborhood? Do you stay in Fort Pierce or do you go all over?”

I have briefcase, will travel. I love taking my show on the road.

Early in my career, I traveled all the way to Dayton, Ohio to protect a family court client of mine, and he’s been my friend ever since.

The first time I took a significant criminal case on the road, the first time I remember, is when I was in Cambridge, Massachusetts attending a seminar at Harvard Law School and I got a phone call from the office.

It seemed that a client of mine whom I had recently beaten charges on a DUI had gone down to Key West on his motorcycle and he got arrested for DUI down there.

He dropped by the office and asked, “Did I know anybody down there that I could refer the case to?”

Although I do now, I didn’t then, so I told my secretary, “Give him these two names. These are good lawyers in Miami, good DUI lawyers. I’m sure they go to Key West.” And I hung up.

I thought about it for almost two seconds, and I called back and I said, “Listen, tell him for this much money, I’ll do it myself.”

And he hired me.

As it turned out, he worked at the St. Lucie County airport, and he arranged for me and my associate attorney to fly down to handle pre-trial motions. We got to fly to Key West in a go-cart with wings, the smallest plane I’d ever been on in my life.

It was an entertaining flight, too, as we were approaching the Everglades, we noticed that they were on fire. You could see the heat plumes coming off them.

I mentioned that to the pilot and he said, “Ah, it’s a forest. It’s always on fire.”

That didn’t bother me too much. When we got below the Everglades and the pilot took out a map, that bothered me. I thought, “Oh, my God, he doesn’t know where we’re going. We’re going to end up in South America or Cuba.”

Well, it turns out that he knew exactly where he was going, but Key West has a major military base and you’re not allowed to fly over it. So, he wanted to be very, very careful to fly where he was allowed to fly.

We won that case, and I had so much fun handling criminal court in Key West that I actually opened an office there and I’ve had my office there ever since.

A few years ago, a good friend of mine in Pittsburgh reached out to me and said, “Mike, I’m about to be hired on my first ever private pay murder case. It’s a capital murder case, and I know I’m going to need some help, but I don’t want to bring in anybody local because they’ll try to steal the case away from me.”

I guess things are a little more cutthroat in Pittsburgh than what I’m used to, but I told her, “Of course, I’d be happy to come and help you.”

This particular lawyer has a significant other who, at the time, was a star with the Pittsburgh Steelers, and I said, “I’m going to need some football tickets.” We made our deal, and I scheduled my appearances in court up there for when there were Steeler home games. It wasn’t that hard to do.

I flew up there one time when we were supposed to have the preliminary hearing. The rules of procedure in Pennsylvania are much different than Florida. They have an adversary preliminary hearing, but the prosecutor doesn’t have to turn over any discovery until after the preliminary hearing. I got up there and the prosecutor told my co-counsel and me that he was going to try and postpone the prelim again so that our guy would have to continue to sit in jail and he wouldn’t have to turn over discovery unless we waived the prelim.

We ended up negotiating an agreement. The judge told us that he was inclined to grant their continuance. If I would withdraw our objection, he would get us a hearing in front of the trial court judge the middle of the following week.

That was fine. We agreed to that. We got a couple of other concessions. I got to read the autopsy report, which confirmed what we thought. I also was able to learn from the detectives, as we had this meeting in the judge’s chambers, that the prosecution’s star witness was missing. This was a guy who had been shot but not killed. He’d gone missing. The police had interviewed him three different times in his hospital bed, but only recorded two of them.

Anyway, with what we were able to get out of them, we agreed to waive the prelim in exchange for a discovery hearing.

I called into the judge’s chambers a few days later because I’d come by to Florida, and I said, “Good morning, Judge. How are you?”

And the judge who still hadn’t laid eyes on me said, “Well, son, I’ve got a whole bunch of people in my chambers this morning and I don’t really like that. Can you tell me why everybody’s here?”

I said, “Judge, my co-counsel and I are just trying to do our job. We’ve got a man in jail without bond on a first degree murder charge and we need to get our case ready for trial and we don’t have any discovery. I think it would help all of us on both sides if you’d put us on a deadline. We’d like you to enter a discovery order that directs the prosecutor to turn over discovery by a specific date.”

As an aside, I will tell you that our client in this case was arrested a full year after the homicide had been committed. The people in the prosecutor’s office knew darn well that, if he ever got arrested and they were going to prosecute the case, they were going to have to turn over discovery.

By the time of the meeting in the judge’s chambers, it was several months after our guy had been arrested. I am absolutely certain that the prosecutors had all their discovery materials together and could’ve disclosed them any time they wanted.

In any event, the judge that morning asked the prosecutor, “How much time do you need to get the discovery materials together to disclose to Mr. Kessler and Ms. [I’m not going to mention her name because she might not want me to]?”

The prosecutor asked for thirty days, so the judge gave him sixty. I looked at the calendar, and just coincidentally the sixtieth day was a Friday, and it was a Friday in December. It was two days before the Steelers’ last home game of the year.

I don’t know if I’ve mentioned this earlier, but I’ve been a Pittsburgh Steelers’ fan for over fifty years now.

Anyway, days turn into weeks, and we’re now at the week we’re supposed to get discovery, and I get a call from my co-counsel on Monday of that week saying, “I just heard from the district attorney and he says they’re not turning over discovery.”

I said, “Well, is that a fact? Tell you what I’m going to do. I’m going to draft a motion. I’m not going to file it, but I’m going to send it to you.”

I prepared a motion for contempt, asking the trial judge to hold the district attorney in contempt for willfully refusing to comply with a discovery order. And I asked for sanctions against the district attorney, including a jail sentence. I put in our motion that, if our client has to wait in jail without bond, than the prosecutor should have to wait in jail without bond until he turns over discovery.

That rattled their cage. I sent it to my co-counsel and I said, “You can walk this over. You can share this with them, because you’ve got to deal with these people all the time and I don’t, but I’m not going to take this without action.”

She talked to the prosecutor and the next thing I know, I get a phone call from the prosecutor and he said, “Listen, we’re not turning over discovery.”

I said, “Alright, I’ll file my motion and I’ll get a hearing. I’m coming up Friday. I plan to spend all day Saturday going over the discovery with my co-counsel, going to the Steelers on Sunday and being ready to go.”

He said, “We’re not going to turn over any discovery, but I’ll tell you what we’re going to do. We’re going to dismiss the indictment, because we still haven’t found so-and-so, and we’re going to wait to turn over discovery. Someday, we’ll find him and we’ll re-indict your guy and the we’ll turn over discovery.”

Now, my suspicion, then and now, is that their star witness who was deeply involved in the drug trade and had apparently double-crossed somebody, probably was no longer breathing oxygen, but I have no evidence to support that. that’s just my belief.

In any event, I too this murder case to help out my colleague, and we ended up getting a first degree murder indictment dismissed. And we all lived happily ever after.

So, yes, my home is here in Fort Pierce, and I’m in court in Fort Pierce a few days a week, each and every week, and I’m a regular in Okeechobee and Stuart, and Vero Beach, as well.

If you need my help and you’re not here in Fort Pierce, the pearl of the Treasure Coast, know well that I’m happy to take my show on the road. In fact, we counted the other day, and I have appeared in court as lead counsel for the defense in twenty-nine of Florida’s sixty-seven counties.

You can connect with me easily by clicking on the CONTACT tab above, or call the Kessler Law Firm at 772-466-4900.

 

Attorney Mike Kessler
Written by: Attorney Mike Kessler

Attorney Kessler has been practicing criminal law in Florida for 30 years. He is recognized as is a leading authority on drunk-driving defense as well as a founding member of the Saint Lucie County Association of Criminal Defense Lawyers and co-author of The DUI Book: Florida Edition, the definitive resource on DUI in Florida.

To speak with Mike, call 772-466-4900 or click here for a free consultation.

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