Catch-and-Release: Criminal Injustice Under Aronberg

Regular readers of our crime reports have noticed so many cases where serious criminals repeatedly get breaks, leaving the public exposed to their ongoing mayhem.

I should start by noting that many think of me as “soft on crime” because I’m a defense lawyer and because of my opposition to DUI checkpoints and my criticism of DUI enforcement. This is best embodied by my book Fair DUI and the Fair DUI flyer.

That doesn’t make me soft on crime. It means I’m strong on the Constitution.

Since I moved to West Boca eight years ago I have noticed repeatedly the soft treatment criminals get from the system. Where I come from (Albany NY), first-time criminals often get breaks and that’s true in most places. But repeat offenders rarely get significant breaks. I represented a client who was arrested for home burglary and he got 19 1/2 years in state prison there. He was a repeat offender and this was not his first prison sentence. But he had nowhere near the record I see in many cases here where people get out on low bail and then get their cases dropped or get short sentences.

The system seems extremely arbitrary. This post was inspired in large part by a local attorney whose DUI case was dropped by Dave Aronberg’s office. Aronberg is the Palm Beach County prosecutor. We’ve been critical of him in the past for being soft on repeat offenders who drive while suspended. Like most politicians he does not take criticism well.

In this latest incident the attorney’s DUI case was dropped very quickly. I found this in doing my local crime report article and began investigating. I requested public records from the Boca Raton Police Department and from Aronberg’s office. Boca PD responded quickly and provided me with a lot of information including videos, and the memo from Aronberg’s office supposedly explaining why the case was dropped.

Aronberg’s office has still provided nothing.

The memo is below. Hard to read but basically one of Aronberg’s assistants said he dropped the case because the video showed the stop was not going to hold up in court.


That doesn’t fit with what we saw in the video leading up to the stop.

First of all the video only shows 30 seconds before the traffic stop commenced. We, and the prosecutor, do not know what the officer saw in the minute before the video starts. In any event the driver is clearly weaving, hitting the left lane line at the beginning of the video and going well over the right lane line. He hits his brakes for no apparent reason, and hits the right lane line again as he’s going through an intersection. He’s heading for the left lane line again as the officer starts the traffic stop.

What’s particularly odd about this from my perspective as a defense lawyer is that the ASA (assistant state attorney) reviewed the video so early in the case. I discussed this with an experienced and highly regarded local defense lawyer who agreed that prosecutors never look at evidence like this so early on.

Boca PD’s disclosures meanwhile indicate that the attorney’s defense lawyer requested the video the same morning that the prosecutor dropped the case and it was ready for them at 11:30 am. The prosecutor’s memo was written at 1:23 pm.

What prompted the ASA to look at this case so early on? What led him to review the video so quickly and thoroughly? These are questions and we’d like answers. But we’re not getting them from Aronberg.

Mike Edmondson is the media guy for Aronberg and Natalie Cruz is the person designated for public records requests.

I made a public records request to Aronberg’s office two weeks ago after seeing ASA Meshulam’s memo. Cruz responded two days later indicating that the request was received. A few days later I followed up:

Public officials are required to comply with public records requests. Failure to do so is illegal and should subject them to a fine. Wilful failure to do is a misdemeanor and can lead to jail time and removal from the job.

It is now two weeks after my request and there is still no response. How hard can it be to provide a copy of ASA Meshulam’s calendar for a single day?

That day matters because it’s the day he wrote the memo. What are they hiding and why are they hiding it?

We can only conclude that Aronberg’s office is covering up their misconduct in giving a sweetheart deal to a connected local lawyer. This is not surprising from a prosecutor with a history of unethical conduct. We saw this most recently when Aronberg used the Robert Kraft case to get public attention for himself while grossly exaggerating the circumstances. And of course his office botched its handling of the insanity defense in the Jimmy the Greek murder.

This is all just the tip of the iceberg in our county and all of South Florida. We keep seeing cases where people continue to reoffend and are never held fully accountable under Florida law. Just last week we covered a man arrested for driving while suspended for what is at least his sixth offense. He’s never done any meaningful jail time for it.

Back in 2015 we covered the Brett Knowles case, a driver who hit 3 pedestrians on 441 near West Boca Medical Center. Aronberg’s office stalled on prosecuting the case, dropped a subsequent driving while suspended prosecution against Knowles, and this was amidst a history of failing to properly charge this repeat offender with the felony count and putting him in jail. Because Aronberg’s office failed to hold him accountable, Knowles was on the road and sent two of those three kids into surgery.

Political prosecutors like Aronberg use high profile cases, like Robert Kraft or Tiger Woods, to pretend they’re tough on crime. In reality they let a lot of serious criminals off easy or with no consequences at all.

Basically we have a criminal injustice system in South Florida where a few people are treated very harshly in an arbitrary manner, either because of their celebrity or just bad luck. Meanwhile our police officers and deputies do a pretty good job catching criminals only to see them released by incompetent and careless prosecutors.

It’s a catch-and-release system and the end result is more crime in our neighborhoods. More car burglaries, more residential burglaries, more robberies and so on. Not only does this make us less safe, it also drives up our insurance rates.

Tiger Woods DUI Arrest Documents

Second update: An additional set of documents was released by the Jupiter Police Department later in the day. While it adds statements from additional police officers (unusual for a routine DUI), there isn’t much new information and it still does not include anything from the “Drug Recognition Expert.” The new pdf is at bottom.
Update: We now have more documents. They show Tiger cooperated, blew 0.000 twice, and voluntarily supplied a urine sample using a comprehensive drug cup. Documents will be added soon.
The breath test showed no alcohol at all.

Woods breath test showing 0.000 twice on subject samples.
Image copyright Warren Redlich 2017 (based on added markings); media may use by crediting West Boca News or @WestBocaNews.

We have obtained initial documents from Tiger Woods’ DUI arrest. Below are the two tickets, one for “Improper parking” and the other for DUI.
The probable cause affidavit shows the circumstances leading up to the encounter, with the officers saying they found Woods sleeping his car in the right lane.
From the Tiger Woods probable cause affidavit. Image copyright Warren Redlich 2017. Media may use by crediting West Boca News or @WestBocaNews.

Woods did poorly on the “Field Sobriety Tests” but these are designed to look for alcohol impairment and the breath test shows that Woods had no alcohol in his system.
Field sobriety tests and breath results on Tiger Woods DUI arrest; image copyright Warren Redlich 2017; media may use by crediting West Boca News or @WestBocaNews.

There are a couple more key details:
1. They did urine but did not draw blood. Blood testing is generally far more reliable than urine testing.

2. An Officer Borrows “did DRE”. This refers to a “drug recognition expert” doing additional tests. They are not really experts. They typically are high school graduates with perhaps a couple weeks of training.
The affidavit does not show the results of any DRE testing and it’s unclear if it was documented at all.
We created “jpg” versions, below, and the original pdf documents are at the bottom of the page.
First, Tiger’s parking ticket, which is likely the reason police approached his vehicle in the first place.

The ticket says specifically that his vehicle was “stopped on roadway in right hand lane and right shoulder,” in violation of Florida Statute 316.1945. The ticket does not indicate a specific subsection within the statute. There’s some chance this could be a problem for the prosecution if the case is fought.
The ticket also indicates Woods was driving a black 2015 Mercedes sedan (4 door), and that the incident took place at 2999 N. Military Trail in Jupiter, at or near Indian Creek Parkway. Our best guess is that this was somewhere south of that intersection, and north of Dakota.
Military Trail in Jupiter between Dakota and Indian Creek Parkway; image and map data by Google.

Next up is the DUI ticket:

It’s also noteworthy that the tickets show no crash and no injuries. Together this suggests that Woods was stopped on the side of the road, leading to police approaching his vehicle. We are hoping to get additional documents including the probable cause affidavit and breath test results but so far they are not available. These will be much more helpful when we get them.

The DUI charge is indicated as 316.193(1). Unlike the parking ticket this does indicate a subsection but there is not enough detail to say whether it involves alcohol or drugs.
It appears that the parking ticket was issued by an Officer Palladino of Jupiter PD, and the DUI ticket was issued by an Officer Fandrey, both assigned to the road patrol unit.
Update: Full pdfs of the probable cause affidavit and breath test report are below, then the tickets follow.
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Full pdfs of the tickets are below, DUI ticket first.
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The most recent set of papers is below:
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Sandalfoot Woman Arrested in Fatal Crash

Laura Haggerty; image by PBSO
Laura Haggerty; image by PBSO

The Broward Sheriff’s Office issued a press release regarding the arrest of a Sandalfoot woman from a fatal crash that occurred on Loxahatchee Road in Parkland back in May:

Broward Sheriff’s Office traffic homicide investigators have arrested a Boca Raton woman who killed her passenger in a single-vehicle crash on Mother’s Day in Parkland.
Laura Haggerty, 47, was taken into custody Sept. 30 with the help of the Palm Beach Sheriff’s Office. She faces two DUI/Manslaughter charges and one charge of vehicular homicide.
Around 4 p.m. May 8, Kelly Rider, 35, was a passenger in a Ford Explorer that was heading eastbound on Loxahatchee Road. Laura Haggerty was behind the wheel. Haggerty lost control of the vehicle near the 12200 block when her SUV drifted off the road. Haggerty overcorrected, causing the vehicle to veer across the roadway and collide with the guardrail on the north side of the street. The SUV then began to spin in a counterclockwise motion, before rolling over.
Rider, who wasn’t wearing a seatbelt, was ejected. Coral Springs Fire Department pronounced him dead at the scene. BSO Air Rescue transported Haggerty to Broward Health North.
According to BSO detectives, she was speeding and driving with a blood alcohol content of 0.25.

The BSO report indicates that both Haggery and Rider lived at the same address on Sailfish Road in Watergate Estates, just north of the west stretch of Sandalfoot Blvd.

Photo of Rider and Haggerty from Rider's Facebook page.
Photo of Rider and Haggerty from Rider’s Facebook page.

West Boca News Founder Arrested in Coral Gables Checkpoint

Yes, I was arrested last week in Coral Gables. A few hours later I was “unarrested.” The video of my arrest is near the bottom of this article, but first there’s a back story. Scroll way down if you just want to see the arrest.
As many of our readers know, I am a criminal defense (and personal injury) lawyer. I’m also a civil rights activist. Earlier this year I received national attention for my approach to handling checkpoints and traffic stops.
I had published a book in 2013 called Fair DUI.

The book has sold fairly well on Amazon and has excellent reviews.

After writing the book people asked a lot of questions about how to handle encounters with police in traffic stops. One of the big questions was how to remain silent. It sounds simple, but it’s not so easy to do. In response to that I came up with the Fair DUI Flyer.

Some of my activist friends started using them in checkpoints. I did one myself in Miami last year and it went well. This video has been viewed over 100,000 times.

The story got bigger when my activist friends used it in a checkpoint on New Year’s Eve west of Gainesville. This video has now been viewed over 3.2 million times on YouTube alone.

It blew up, leading to national news coverage starting with eventually leading to Fox News, CBS News, The Washington Post, etc.
I even became the #1 trending story on Facebook:

In the heat of the moment we received some threats of arrest by local sheriffs but their comments were vague and often just plain stupid. Some said drivers have to talk to police, rejecting the right to remain silent. After the publicity died down we learned that police departments and prosecutors were discussing how to respond, and this led to my arrest in Coral Gables.
One key feature of my approach is that you do not roll down your window. Florida law requires you to “exhibit” (or show) your license to police. It does not require you to hand it over. I recommend people keep the window closed and press the license up against the window. Some prosecutors and police legal advisors decided to fudge that law (§322.15 of the Florida Statutes) and claim that you are required to hand it over. The Coral Gables legal advisor, attorney Israel Reyes, went further and recommended that anyone who refuses to physically hand over their license be arrested for a misdemeanor – resisting without violence. The City Attorney adopted this recommendation and it became formal policy. That document is below.
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Mr. Reyes and his friends missed a key point from law school. We are trained to read the whole statute. Subsection 4 of 322.15 says that a violation of it “is a noncriminal traffic infraction, punishable as a nonmoving violation.” You can’t arrest someone for that. You can’t charge someone for a misdemeanor (a crime) when the legislature defines it as noncriminal.
I talked about this in a video I made about 322.15:

So, as an activist, when I heard that Coral Gables was doing a checkpoint, I had to go and test them to see if the police officers would follow this unlawful order from their bosses. You can see my arrest in the video below:

While I’d like to think of myself as the hero of this story, the real hero is Sergeant Alejandro Escobar. He followed orders when he arrested me. About three hours later he “unarrested” me and gave me a ticket:

In a good story the hero learns from experience and grows. I don’t know what happened for sure but I think Sgt. Escobar figured out something was going on and made an effort to understand what I was doing and why. In the end he went against his department’s policy, against his orders, and only issued me a ticket.
Coming soon I will be suing Coral Gables in federal court over this incident. This is not about money. While there will be monetary claims they are small. No one was shot. I did suffer nerve damage to my thumb from the handcuffs but it is minor and has nearly healed already. The goal is to get a federal judge to make sure that police follow the law, including 322.15 as well as Supreme Court cases on checkpoints.
Those who are considering using the Fair DUI Flyer should be aware that I went further in this incident than I recommend for others. Most people should obey orders from police even if they are unlawful orders.

Why is Joanne Luu Innocent?

Joanne Luu mugshot (PBSO)
Joanne Luu mugshot (PBSO)

Yesterday on our Facebook page we posted a link to a well-written article in the Sun-Sentinel about the Joanne Luu not guilty verdict. This comes from a fatal accident at 441 and Sandalfoot Blvd. Our Facebook post received a lot of “engagement” from readers, with 15 shares and a total of 68 comments (including on the shared posts). Most of the comments were angry.
Accident victims Ferrarella and D'Angelo
Accident victims Ferrarella and D’Angelo

This was a horrible accident. The families and friends of the victims are understandably upset, and like anyone else who reads about this, we are deeply sympathetic to their suffering. But I’ve been a trial lawyer for 20 years now and have handled many DUI cases. In my continuing quest for unpopularity, I have to say what our readers apparently don’t want to hear: The jury got it right.
Over a year ago we explained the Angela Stracar decision, a similar case. Both Stracar and Luu were accused of causing an accident that killed people, of being impaired by drugs, and of driving recklessly. Stracar was convicted at trial after an accident in front of Boca Isles (on Cain Blvd.). Her conviction was reversed on appeal and the charges were dismissed.
Here’s some key language from the Sun-Sentinel article:

Sheriff’s … toxicologist … Yeatman testified the blood sample showed traces of a chemical produced by the metabolization of cocaine. But there was no actual cocaine detected in Luu’s blood, and Yeatman said on cross-examination that the chemical alone would not have caused her to be impaired behind the wheel.

The DUI homicide charge she faced applies when someone is impaired by drugs. You would have to have such a drug in your system in order for it to impair you. There was no cocaine in Luu’s blood.
This doesn’t mean that Luu is a good person, or that the victims deserved to die. It just means Luu was not driving under the influence of drugs. She is genuinely innocent of the DUI charge.
What was found in her system was a metabolite. When you take a drug (legal or illegal), your body processes (or metabolizes) it. The results of that process are metabolites. The most common metabolite of cocaine is benzoylecgonine. You can read about how cocaine is metabolized in a scientific journal.
Our best guess is that the drug test showed benzoylecgonine. It only showed “traces” of it according to the article. Usually “trace” in a blood test means an amount that is so low as to be almost undetectable. That means if Luu had used cocaine it would have been long before the accident.
The prosecutor argued that Luu’s “behavior is completely abnormal because she’s crashing from cocaine use.” To be polite, that’s a creative theory. The statute requires that someone be impaired by drugs, not by the absence of drugs. You wouldn’t have to take this argument much further to argue that an alcoholic or addict who is clean at the time of an accident is impaired by the cravings from their addiction.

Warren Redlich is the author of
Fair DUI: Stay Safe & Sane in a World Gone MADD

Even if she had actual cocaine in her system it would be tough for prosecutors to prove guilt. As the NHTSA puts it:

The presence of cocaine at a given blood concentration cannot usually be associated with a degree of impairment or a specific effect for a given individual without additional information.

The very notion that cocaine impairs driving is itself dubious:

Single low doses of cocaine may improve mental and motor performance in persons who are fatigued or sleep deprived, however, cocaine does not necessarily enhance the performance of otherwise normal individuals. Cocaine may enhance performance of simple tasks but not complex, divided-attention tasks such as driving. Most laboratory studies have been limited by the low single doses of cocaine administered to subjects. At these low doses, most studies showed performance enhancement in attentional abilities but no effect on cognitive abilities. Significant deleterious effects are expected after higher doses, chronic ingestion, and during the crash or withdrawal phase.

Indeed another NHTSA study (pdf) showed little if any evidence that illegal drugs such as cocaine and marijuana increase the risk of driving:

[A]nalyses incorporating adjustments for age, gender, ethnicity, and alcohol concentration level did not show a significant increase in levels of crash risk associated with the presence of drugs.

That’s in stark contrast to the findings about alcohol:

Findings from this study indicate that crash risk grows exponentially with increasing BrAC. The study shows that at low levels of alcohol (e.g., 0.03 BrAC) the risk of crashing is increased by 20 per- cent, at moderate alcohol levels (0.05 BrAC) risk increases to double that of sober drivers, and at a higher level (0.10 BrAC) the risk increases to five and a half times.

If you believe this government science, just one or two drinks significantly impairs driving and is far more dangerous for a driver than any amount of cocaine or marijuana.
The comments on our Facebook post clearly misunderstand what happened. For example, one commenter wrote: “She had a great attorney. The payoff worked well. I mean he “worked” well. That’s all folks. So sad for the family.”
Ms. Luu was represented by the public defender’s office. There was no payoff. While many people have a negative view of public defenders, we have some very good ones in Palm Beach County. They did a great job in this case, and in the Stracar case as well.
Another commenter wrote:

It is called the criminal justice system because the criminals are the only ones to receive any justice, the victims sure don’t and it is not called the victim justice system.

This comment has both truth and error in it. The commenter is correct that the system is generally not about victims. We already have civil courts for that where victims can sue the people who hurt them. One of the harder parts about this case is that the Luu vehicle may have had very limited insurance, leaving little money to compensate the families of the victims.
In some cases the system does work to get some kind of compensation for victims. There is an entirely different approach to crimes called restorative justice that focuses more on victims, but it’s not widely used and is probably not what the bloodthirsty commenters want.
The commenter is completely wrong if he believes that the system is favorable to people accused of crimes. In my experience the deck is stacked against defendants, including innocent ones. With that said it does seem like the prosecutors in South Florida drop a lot of cases involving real crime.
Another commenter wrote: “Sloppy police work and lousy prosecutors.”
There was no sloppy police work here. The police did what they’re trained to do and they did their jobs well. The only thing the prosecutors did wrong was continue to pursue a case without evidence of guilt.
“The fact that two people died meant nothing to this case??”
No it did mean something. The case was prosecuted at the very serious level of a DUI homicide rather than as a lesser DUI or reckless driving case. Had there been no death there’s a good chance the case would not have been prosecuted at all. When there is public outrage over an incident like this, some prosecutors will go ahead with a prosecution to satisfy the public’s blood lust.
“It’s a sad day when all the evidence is present and a criminal is set free. The judge should be incarcerated.”
I’m at a loss to understand why this commenter blames the judge. A jury found Luu not guilty. If anything the judge should have dismissed the case without letting it get to the jury at all.
One of our regular readers posted this:
This is her picture. I think it’s obvious how she was acquitted and it wasn’t lack of evidence.
Another reader suggested that the male jurors didn’t want to convict her. This is nonsense. If you take a look at the comments in total, you’ll see that the overwhelming majority think she’s guilty. The jury pool consists of people with similar attitudes. But when they get into a courtroom and have the law and the facts explained to them, they take their responsibility seriously and in this case they got it right.
One last thing deserves mention. The victims were not wearing their seatbelts. Some, including the county medical examiner, assert that they would have died even if they had been wearing them. That’s an irresponsible thing to say. Seatbelts save lives. Dr. Bell may be a competent physician, but he’s not a biomechanical engineer and so he’s not qualified to make such a statement.

In response to an additional comment, which assumed that Luu ran a red light, we don’t know that.
“During her closing argument, Arco (the prosecutor) acknowledged it was unclear whether Liborio Ferrarella turned on a green arrow or a red arrow.”
Fault in the accident is irrelevant to a DUI homicide charge. If you’re impaired by a drug or alcohol, you’re on the hook in Florida even if it’s the other driver’s fault.