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Where There's Smoke, There's Fire

Where There’s Smoke, There’s FireI had an argument recently with a prosecutor (shocking, I know), and much of her reasoning centered around her repetition of the cliche “where there’s smoke, there’s fire”. The problem with such clichés is that the other side is basically acknowledging that they cannot respond to your position with any sort of intellectual vigor. Cliché’s avoid substantive arguments–and I’m in the business of making such arguments.

Our case for today is A.B. v. State, 141 So. 3d 647 (Fla. 4th DCA 2014). Here’s the scene: kids playing basketball at a city park, having a good time. Some kids are watching the game, some are on the court playing. The kids playing have left their cell phones and wallets off to the side of the court. At some point, the players noticed a couple of kids running from the area where they left their wallets and cell phones. Sure, enough, their stuff was gone. A.B. was one of the kids running away.

I know what you’re thinking, why run away if you’ve done nothing wrong, right? Well, remember, its kids we’re dealing with, that’s why we can’t use the defendant’s actual name, we have to use initials. Somehow, the cops caught up with A.B. about two weeks after the incident, and he told the officer “I can’t believe I am going down for this alone”. Id. at 648. Now, even if you believe what the officer says A.B. said (I often don’t, unless it’s recorded–every officer carries a recorder/cell phone), this statement isn’t quite a confession. It may be admission that he knows who did it, but it’s not quite a confession. The juvenile further explained that his friend issued the following command: “When I run, you run”. Assuming A.B’s friend is not some sort of pyrotechnical engineer about to launch a 4th of July Jubilee, this sort of statement is the universe’s way of telling you “some shit is about to go down”. Again, we’re dealing with kids here, and this statement probably resulted in a response like “uh, ok, huh” (think Beavis & Butthead).

A.B. was arrested for grand theft, and convicted of petit theft because the State failed to prove the value of the goods stolen (a whole separate issue, and you would think prosecutors have figured this out by now, but they haven’t, so see my article on this issue here). The conviction was appealed, as A.B. was never seen taking anything, and never caught with any of the stolen items. Now, let me rant about the fact that the requirements of Florida law are not the same as the evidentiary requirements of clichés like “where there’s smoke, there’s fire”. In legal terms, we describe A.B.’s case as a circumstantial case. Here’s the law, in black and white, that totally contradicts what most cops and prosecutors think: “mere knowledge that an offense is being committed, mere presence at the scene, and even a display of questionable behavior after the fact, are not, alone, sufficient to establish participation” in a crime. Id, quoting Theophile v. State, 78 So. 3d 574 (Fla. 4th DCA 2011).

And what about A.B’s disbelief that he was “going down for this alone?” The court held that the comment “did not amount to an admission”, and cited Friske v. State for the proposition that statements to the police that are “ambiguous and susceptible of innocent explanation as well as being indicative of criminal knowledge must be resolved in favor of the accused.” 366 So. 2d 423 (Fla. 1978).

The appeals court threw out A.B.’s conviction, reasoning that “the State’s evidence simply fell short,” as the State could not prove that “the juvenile committed, or assisted in committing, a crime.” id. Sadly, this is the type of case that most prosecutors will not drop. This is exactly the type of case that most judges will not throw out. But, it’s the law of circumstantial evidence. For those of you out there paying taxes, please note that this case was a waste of your taxpayer dollars; all over a grand theft charge that never should have been filed to begin with. Prosecutors have the power to save taxpayers money, but they have to know the law of circumstantial evidence first.

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