Help me continue the fight for our First Amendment rights
I’ve never found it easy to ask people for money, which is probably why I’m not a preacher or a politician.
But as I prepare my appeal to overturn my conviction for resisting arrest without violence, I realize I just have to come out and say it.
I need help.
That is why I installed the Pay Pal donation plug-in the left sidebar. The donations will not only go towards my Legal Defense Fund, but also towards maintaining this blog, which is gaining in popularity to the point where I’m being asked to upgrade my hosting plan.
I’m already several thousand dollars in debt because I chose to prove my innocence rather than accept the charges against me. And just filing the appeal is costing me more than $400. And I still don’t even have an attorney.
But there is no way I can just accept this conviction without a fight because I never resisted arrest. As soon as the cops pounced on me that night, I simply allowed them to handcuff me because I did not want my cameras to get damaged in a fruitless struggle.
As it turned out, the cameras got damaged anyway because the cops insisted on slamming me to the ground and pounding my head against the sidewalk. All because I continued to take their photo after they ordered me to leave the area.
As many of you know, I ended up spending 16 hours in the County Jail in a horrid experience that no law-abiding citizen should be forced to go through. The arrest has also cost me a significant amount in lost wages because it suddenly became much more difficult to find journalistic work.
I could have easily accepted “time served” the morning after being released from jail and have been done with it, except for the fact that I would have had nine criminal convictions on my permanent record for doing something that was completely legal. Something that is supposedly protected under the First Amendment.
But despite the hardships this arrest has caused me, not to mention the detrimental affects on my health, which I might one day write about, I have no regrets about standing up for my rights that night.The only regret I would have is if I don’t continue to fight this.
Do I have a good chance of winning the appeal?
I have an excellent chance. A jury already found me innocent of disobeying a police officer and disorderly conduct. In other words, I had every right to refuse the officers’ demands to leave the public area because it was an unlawful order.
So how could they justify convicting me with resisting arrest without violence?
Florida Statute 843.02 states that a law enforcement officer must be acting in the “lawful execution of any legal duty” for a suspect to be charged with resisting arrest without violence. It has already been determined they were not acting in the legal execution of a legal duty.
843.02 Resisting officer without violence to his or her person.–Whoever shall resist, obstruct, or oppose any officer as defined in s. 943.10(1), (2), (3), (6), (7), (8), or (9); member of the Parole Commission or any administrative aide or supervisor employed by the commission; county probation officer; parole and probation supervisor; personnel or representative of the Department of Law Enforcement; or other person legally authorized to execute process in the execution of legal process or in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
Also, Judge Jose L. Fernandez may have blundered when he displayed such deep contempt against me and scolded me for my “lack of remorse” in this case – after assuring the jury that he was impartial. I have the audio proof on a CD.
Because I refused to show remorse for crimes I did not commit, Judge Fernandez slammed me with one year probation and 100 community hours. The State Attorney was asking for only 3 months probation and 50 community hours.
According to the Citizen Media Law Project, which wrote in detail about my case, this factor alone could reverse the guilty charge.
While Judge Fernandez is welcome to his personal opinion about Miller, under Florida law, he cannot use Miller’s lack of remorse to impose a harsher sentence.
The article refers to Ritter v. State, a 2004 Florida case where a judge sentenced a child molester to 10 years in prison even though the State was asking for only eight years. The judge in this case stated the following in dishing out his extensive sentence.
“The court is terribly disturbed that I think you still maintain you did not do anything. This jury has in fact determined to the contrary and I am accepting the jury’s verdict having heard the testimony. I have not seen any indication of remorse in this matter.”
Judge Joe L. Fernandez stated the following in dishing out my extensive sentence:
“I am shocked at your lack of remorse”
Ritter appealed the sentencing and won. According to appellate court documents, it is “constitutionally impermissible” for a judge to issue a harsher sentence based on lack of remorse and insistence of innocence.
While a sentencing court has wide discretion as to the factors it may consider in imposing a sentence, it is constitutionally impermissible for it to consider the fact that a defendant continues to maintain his innocence and is unwilling to admit guilt. Although remorse and an admission of guilt may be grounds for mitigation of sentence, the opposite is not true.
.The Citizen Media Law Project believes I can win my appeal based on Ritter’s victorious appeal.
Considering the rather stunning discrepancy between the sentence that the prosecutor sought and the sentence that Judge Fernandez gave, it sure looks like the judge let his feelings about Miller’s lack of remorse color his sentencing. In Ritter, the Florida District Court of Appeal overturned a sex offender’s sentence, which went above and beyond that the prosecutor asked for, because the trial judge took umbrage at the offender’s continued claims of innocence. Miller’s case seems directly on point with Ritter, and if so, Miller’s sentence should be vacated and remanded to a new judge.
So as you can see, I can easily win this appeal if I find a lawyer with common sense. All I need is some financial help.
This case is not just about me but about every photographer who cherishes their rights to photograph in public. Anybody who reads this blog on a regular basis knows arrests against photographers occur on a regular basis, despite the fact that several federal courts have ruled that public photography is protected under the First Amendment.
It’s no secret that the courts have recently been seeking ways to reduce our freedoms. Any legal setback against an arrested photographer is a setback for all photographers because it will become case law and be used to determine future cases.
So if you believe in preserving the First Amendment, please donate a few dollars to this worthy cause.
Because it’s not just about photography. It’s about Freedom of Expression, the most valuable freedom we have in this country.