Forensic Computing and E Discovery Walks Hacking Suspect

A charge of planting a trojan horse was dropped because of "lack of sufficient evidence." A hacking suspect had been charged with computer tampering, a Class D felony that carries a penalty of six months to three years in prison and a maximum fine of $10,000, upon conviction.

The case started when a system operator reported a system crash of its servers and its backup systems. It was allecged that suspects had remote access to the computer network through personal computers The suspect denied any responsibility for the transmission and maintained his innocence.The alleged victim "concluded we lacked sufficient evidence," The victim admitted it could not prove that the suspect was "the person who used the computer at the time the . . . system was infected by the virus." South Bend Tribune

E Discovery Computer Forensics Attorney Lawyer Tampa Bay Florida

The Smoking Gun

For several years now, I have been asserting that there is a definitive link between mental illness and crime. To recap, repeat offender crime is caused by one of two factors:

1) A small number of repeat offenders have a personality disorder. Think of this as a willful desire to break the law due to bad character.

2) A large number of repeat offenders have mental illnesses that do not qualify for an insanity defense under Florida law, yet affect their behavior and cause criminal behavior.

This second view is very controversial: If criminals are simply “bad characters,” it would justify increasingly harsh punishment. Incarceration would then serve the dual purposes of protection of the public and retribution However, if some criminal are bad characters and others are not, we have a problem: Harsh punishments will not deter the mentally ill, and retribution becomes and act of cruelty.

The Bureau of Justice Statistics Special Report published in September of 2006 exposes the level of cruelty - and ignorance – prevalent in our society. While most of the public thinks that harsher punishment is the solution to the social problem of crime – to “teach them a lesson” and other such nonsense, the reality is that we are behaving like prisoners who hurt others without remorse: Our society is quite bluntly put, cruel.

• 45% of federal prisoners have mental health problems.
• 56% of state prisoners have mental health problems.
• 64% of local jail inmates have mental health problems.

This stunning document was produced by the United States government’s own Bureau of Justice, not some “bleeding heart” group. They used professionally accepted definitions and standards:

“Symptoms of a mental disorder were based on criteria specified in the Diagnostic and Statistical Manual of Mental Disorders, fourth edition (DSM-IV).” - Bureau of Justice Statistics Special Report, page 1, September 2006.

One final thought: The incidence of mental illness was probably understated because many facilities and many inmates refused to participate.

Strange Days at the Second

The second this week affirmed the rejection of a Mother's petition to modify support, which was filed stating that the current payor was not the father and should be released from his obligation…then they make clear that he is not prohibited from seeking any such relief…and cite to chapter 742…seems like paternity's already determined, and of course this is intrinsic fraud…so I guess they're telling him to set aside the original judgment and hope he's timely? See Hukill v. Shelton…

4th DCA Addresses Premarital Business, Tax Obligations

The Fourth District this week released Pereboom v. Pereboom, in which it reversed a final judgment of divorce on two grounds: First, the husband's premarital business wasn't shown to have increased in value since the marriage (and it was the Wife's burden to show it had…) so it was error to distribute it as an asset…second, it was found error to cut off tax liability at time of temporary relief where the husband continued to pay the parties' expenses for the remainder of the year…

Florida Bar Board Certified Criminal Trial Specialist versus "Super Lawyers" and the Martindale-Hubble “AV Rating”

Florida criminal law is a competitive business just like any other professional service. If someone is the greatest lawyer in their field, yet have no clients, economically they lose. Yet if a mediocre lawyer is profitable, they win. Money isn’t the most important thing in the world, but for many, it ranks up there with oxygen. This is not ideal; it’s just how it is.

Lawyer rating systems marketed by law firm vendors are affected by the necessity to market legal services. Always remember this critical fact when selecting a lawyer in any field. There have been what I consider to be bogus attempts to pad lawyer resumes with labels such as "Super Lawyer" and an even older scam such as the Martindale-Hubble "AV Rating."

A Florida criminal lawyer is an expert (a specialist) or is not. There is no middle ground:

Florida Bar Certified Trial Specialist

* Must take an advanced written test created by other certified experts

* Must have a minimum number of legal cases tried to completion

* Must have a certain number of cases of a “serious and complex nature” tried to completion

* Must complete Continuing Legal Education (CLE)

* Peer Review requirements

* “Certified attorneys are the only lawyers allowed to identify or advertise themselves as Florida Bar Board Certified, specialists or experts.” – The Florida Bar

* Board Certification is recognized by the Florida Bar for a lawyer’s expertise and competence.


Martindale-Hubble “AV Rating”

* No testing

* No trial requirement

* No complexity requirement

* No CLE requirement

* Peer Review requirements

* Any lawyer meeting the legal vendor’s criteria can identify themselves as “AV
rated.”

* An AV Rating is not recognized by the Florida Bar – for anything.

Peer Review Requirements

Check out this gem straight from the Martindale-Hubble website:

"What is the role of the Martindale-Hubbell Ratings Specialist in the rating process?
Peer Review Ratings Specialists work closely with Martindale-Hubbell's larger law firm clients to educate, engage and assist their lawyers in the Peer Review Process and the marketing opportunities surrounding the Peer Review Ratings."

Let me tranlate that one for the general public - have all of your friends in the legal profession scratch your back and you will scratch theirs. There are no exams, no CLE requirements, and best of all, Martidale-Hubble has sold this pap to large law firms for so long, that many lawyers actually believe it!

I am not a "Super Lawyer" nor am I "AV Rated" by some marketing division of a vendor of legal publications. I never will be, either: Like many of my colleagues, I am a Board Certified Expert in Florida Criminal Trial Law. None of us can promise you a "win."

That may not be what our "pratice advisors" want us to tell you, but the public needs the truth, not a slick advetising campaign. "Super Lawyer" designations and "AV Ratings" are not even recognized by the Bar. They are little more than slick marketing to make you feel better. These "rating systems" imply a golden results in a legal field where we cannot promise a particular result.

Actually, experience has prove that telling it like it is consitutes the best marketing strategy.

Respectfully submitted,

Stephen G. Cobb
CobbLawFirm.com

Second District Looks at Zold

Zold v. Zold was reviewed and followed, albeit by a case with a final hearing predating the opinion, in the first portion of the Wamsley v. Wamsley decision out of the Second. While Zold, however, would squarely place the burden on the party claiming a lack of income passing through an S Corp, Wamsley seems to identify where the burden shifts to the other party to disprove the allegations…

Third DCA Looks At Divisible Divorce Jurisdiction

Interesting opinion released from the Third on the 30^th dealt with a divisible divorce, in which the Court initially granted divorce but lacked in personam jurisdiction over the Wife to resolve remaining issues. As such, the Final Judgment comes out without child support, and there was no mention made of future jurisdiction to award it. On modification by the DOR, the Court grants the support, and on appeal, the Third finds that child support is essential enough to a divorce that no reservation of jurisdiction was required and no mention of the issue in the Final Judgment was required to preserve subject matter jurisdiction. See Beroes v. DOR.

Fourth District Requires Counsel be Appointed for Criminal Contempt Proceedings

Gordon v. State, from the Fourth District on May 23^rd, proves yet again the difficulty family law judges can have in making criminal contempt sanctions stick—this time no public defender was appointed, as required…

Fourth Has First Impression of ICWA Issue

Seminole Tribe v. DCF is a case released on Wednesday from the 4^th DCA, and dealing with an issue of first impression in this state. In a nutshell, the Seminole Tribe of Florida brought suit against DCF on the basis that, by placing a child taken from his mother with a family other than the one suggested by the Tribe, DCF ignored the mandates of the Indian Child Welfare Act. The Fourth District relied on a similar Alaskan decision and on the child's medical needs to find a legitimate departure from a presumption in favor of the Tribe.

1st District Disallows Prospective Self-Modifying Alimony Award

Bacon v. Bacon, released on May 21^st, reviewed a Final Judgment that awarded alimony and contained a prospective, automatic increase for the future. The Court reiterated that modification of alimony can only be granted based on an increase in need, and without some certainty as to such an increase, there could be no built-in increase of this type.