Carlos Miller Wins His Appeal

Photographer Carlos Miller of Miami, and a blogger I really enjoy reading, won his appeal of his criminal conviction (here and here).  Some of the details are important to bloggers:

A three-judge panel determined there were errors both in my conviction and my sentencing. The panel reversed both with directions for me to be tried again before a different judge.

In other words, they realized that Judge Jose L. Fernandez allowed his personal bias to affect my trial, including in how he allowed the prosecutor to use my blog against me "“ even though I did not even launch the blog until after my arrest "“ and how he allowed those blog postings to affect my sentencing.

The charge was effectively one of taking pictures of police in public, a perfectly legal and Constitutionally-protected activity that many police have none-the-less convinced themselves should be illegal, so they treat it as such.  The actual charge was "resisting arrest without violence," perhaps the most abusable statute on record.   Especially when there is no underlying illegal activity for the arrest in the first place.  In effect, if a police officer hassles someone for no reason, the citizen responds verbally that the officer is out of line - boom, "resisting arrest without violence." It's amazing one can be convicted of this without there being any underlying crime justifying the arrest, but I guess Martha Stewart went to jail for lying to the police about something that turned out not to be a crime as well.

In this particular  case, the Judge made this outrageous statement to Miller during sentencing:

I can't imagine why you thought this situation was worth getting arrested for. I can't imagine for the life of me.

I don't know if you think you're some kind of hero or something like that, but if you want to see a hero, go visit Arlington. All right? I don't think any of those people that are back here are those people that are giving you the "” the thumbs up on your blog.

If I were to sentence you to jail, none of those people would volunteer to go in there to serve the time with you. They might say they would, but I guarantee you they wouldn't. I'm shocked at your lack of remorse.

Miller gets double extra style points for defending himself through this whole process, and managing to win a victory at appeals when fewer than 1 in 15 trained attorneys are able to do so.


  1. Mark:

    'In effect, if a police officer hassles someone for no reason, the citizen responds verbally that the officer is out of line – boom, “resisting arrest without violence.” '

    But if you are of the right ethnicity you can yell at the top of your lungs at the cops, and make a big scene, then get invited for a beer at the Whitehouse.

  2. Steve Jean:

    I'm imagining what would happen if there was an organized "Photograph a Cop Day" where as many participants as possible would take pictures of police as a matter of demonstrating the principle that it is legal. Perhaps a list of recommendations would include something along the lines of:

    1. try to find instances of cops acting illegally, if possible, or just lazy or wasting taxpayer money (like sitting with their cars side by side playing Chatty Cathy for 20 minutes),
    2. take pictures from a distance, so your proximity cannot reasonably be taken as threatening,
    3. stand in a location where you're not "obstructing traffic" or "trespassing" by any reasonable definition,
    4. find friends to accompany you, to act as witnesses,
    5. if approached, speak as little as possible (Justice Robert H. Jackson advised, "...any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstances."), realizing that there may be legal requirements to identify yourself, for example,
    6. resist the temptation to be confrontational in your language, speak respectfully.

  3. Dr. T:

    We have a obvious violation of a man's constitutional rights by a police officer, followed by an unconstitutional arrest by the police department, an unconstitutional prosection by the district attorney, and an unconstitutional ruling by the judge. Are any of these jackasses going to be disciplined in any way? Almost certainly not.

    Our country is not going to hell in a handbasket: we're in the express elevator.

  4. Dr. T:

    In my previous comment I inadvertently used the word "prosection" instead of "prosecution." I'm a pathologist, so that can be classified as a freudian slip. A prosection is a dissection used to demonstrate a point, something that the DA did to Mr. Miller.

  5. Roy:

    If Miller's appeal did not succeed (iow, if Miller were guilty), then he'd have to pay for the whole schmere.

    What about those who (as far as this non legal trained person would put it) have now been found guilty of violating at least the 1st Amendment? I've not finished reading all the links. But so far it appears that Miller put in a LOT of what would normally be high dollar hours to make the not insignificantly cheap paperwork costs associated with his case succeed. In short, he put in a lot of capital to defend himself. Who pays for it?

  6. Roy:

    Spent a lot of time looking around in Miller's blog. Found that at one time earlier in 2009 he intended eventual civil lawsuit. But haven't yet mastered navigating the blog well enough to know what current status of that intent is. He still has hurdles to face. His reversal on appeal sent his case back for retrial.