Brad: Alright, welcome to the Bauer, Crider, and Perry criminal defense podcast. We are speaking to attorney, Mike Kenny. 

 

 

 

Mike: Hello?

 

 

 

Brad: Alright, how are you doing this morning, Mike?

 

 

 

Mike: I'm doing really well. How are you?

 

 

 

B: Good. Good, well you've had an interesting case, um, a few weeks back, um that we want to go ahead and talk about this morning, correct?

 

 

 

M: Sure. 

 

 

 

B: Tell us a little bit about that.

 

 

 

M: Well, in Florida there's this statute called a sexting statute, or the texting statute, and that statute was enacted, I'm sure when I say the word "sexting" everyone probably has an image or an idea of what we are talking about. But that statute was particularly put into place because of this, I guess ostensibly there was a lot of concern about young folks sending pictures that obviously would quite frankly end up being very regrettable pictures in the future. You know, pictures of nudity to other young people, and in certain cases they get exploited and lives get turned upside down. So, before the sexting statute was enacted, and that was around 2011,  the only crimes that would capture that type of act, which is taking a picture, a sexually related picture, or a nude sexual picture and send it to another individual, the only charge available would be an exposure of sexual organs charge or a lewd or lascivious exhibition charges, and those charges can be life changing. If someone is charged with a lewd or lascivious exhibition, it's a felony, and it's something that might require a person to spend the rest of their life being marked as someone with a sex offense, and that's just not something that folks want in this world, especially when we're talking about teenagers.  So the Florida Legislature, in an effort to try to circumvent that unfortunate result decided to make a law applicable to teens only, or teens or minors only and the idea was that anyone that was caught sending a sext message, which is a message of a sexually provocative nature, or sexually related nature to another individual, and if it is a juvenile, for a first time offense, it would almost be like a noncriminal event.  You would pay a fine and have to do some community service.  So the intent was, I would say the intent was good. The intent was not to ruin the lives of kids who probably don't always have the benefit of thinking ahead. And it was a laudable attempt. But what happened was, when they wrote the statute, what wasn't considered was where they were going to be able to prosecute those types of cases.  So in the state of Florida, juvenile cases only have two places they can be prosecuted.  There's two types of courts. There's the circuit court, and the circuit court is the top trial court in the state of Florida. Then you have the county court, and that's kind of the lower trial court in the state of Florida.  For all juvenile crimes, the only jurisdiction, no matter what the crime is whether felony or a misdemeanor, is circuit court that would actually be in juvenile court. And those cases actually start off in ray or 3:41 in the interest of and it has the child's name and all that stuff is confidential.  County court is the only other court where there is a jurisdiction on a juvenile charge, but that's involving traffic violations only.  So, for instance, if a sixteen year old is driving and he's speeding and he gets a ticket and he wants to contest that ticket, he would contest that ticket in county court like any other adult would contest their ticket. That's the only time a juvenile can be in county court is if he's dealing with a traffic offense, whether it be a civil infraction, or even a DUI charge, a criminal traffic charge. 

 

4:20 So the way this statute was written, however, it expressly tells you that a sexting first offense is not a crime.  So if it's not a crime, the problem is the circuit court, which handles all juvenile criminal matters cannot prosecute the case because it's not a criminal act.  If it's not a criminal act then the circuit court does not have jurisdiction. The other issue that comes up is the only other case it can be prosecuted in is county court, and because it is not a traffic offense, the county court does not have any jurisdiction.  And it's just the weird thing about cases in general, a court has to be granted jurisdiction by the state in order to have jurisdiction to enforce the law. And in this particular instance, although it was a well intended statute, the way it was written made it impossible to enforce. 5:21 So what I had in my particular case, a young girl was involved in a sexting charge and she received a notice to appear in county court and it was prosecuted almost as if it was like a county ordinance violation. I filed a motion to dismiss with the county court  judge explaining what the jurisdiction is of the county court and this jurisdiction is of circuit court, and how this sexting offense doesn't qualify for either.  The judge agreed and she dismissed the charge.

 

5:56 B: I've got kind of a quick question on the sexting.  Is there a difference on if it's text only or image only?

 

M: It doesn't differentiate between a text or an image.  ...The statute basically says sexting occurs is when someone shares nude or sexually explicit images with others through the use of cell phones, the internet, or any other device capable of transferring data.  It's always going to be an image but there might be some statements along with that or something that makes it sexually explicit.

 

B: And it doesn't have to be just a text message, it could be social media, email?

 

M: Correct. In this particular instance that I was involved in, I don't want to get into the details too much, but it actually involved the internet.

 

B: So the first offense is not a crime?

 

M: The first offense is not a crime.

 

B: The second one is?

 

M: The second one would be. And again, it's designed and is prosecuted not the same way as the serious felony of exposure of sexual organ charge or lewd or lascivious exhibition.  It's a little bit less serious and obviously the intent behind that is to not throw a bunch of kids in this monicker of being sexual offenders.  That was the purpose behind the statute.

 

7:38 B: And just to be clear, a minor is 18 or under correct?  Or under 18?

 

M:  Under 18.

 

B: Well, good. Anything else on that, Mike?

 

M: No, I think that the, quite frankly it was almost unfortunate. As a lawyer, you have a duty to represent your client and protect your client no matter what.  So, when you do the research and say, "well, that was a good intent and I appreciate where the legislature is coming from, but I've got to protect my client and there's just no jurisdiction to prosecute so it was dismissed. The unfortunate outcome of that is that leaves law enforcement with no other tools but the old tools that they had that this statute was enacted to prevent or go around. So it's kind of unfortunate and I'm hoping the legislature takes some effort to amend that statute to make it at least enforceable so we don't have 15 and 16 year olds who make some silly mistakes in their lives being prosecuted as sexual offenders.

 

B: Right, for the rest of their lives, right?

 

M: There are certain things that can happen that even though it's a juvenile crime, unfortunately.

 

8:57 (Lead out by Brad...)

 

1327 total words

 

 

 

Part 2

 

B: Michael you are a partner in the firm, is that correct?

 

M: That is correct.

 

B: Tell us a little about Bauer, Crider & Parry

 

M: Well, it's hard for me to talk about Bauer, Crider & Parry without kind of getting a little excited about it, to be quite honest with you.  I was first introduced to that firm when I was a prosecutor. I was a prosecutor for 5 1/2 years and I met one of the partners of the firm and we tried quite a few cases together. One of the things that you learn really quickly as a prosecutor is who the good lawyers are.

 

B: So you were on the other side of the table.

 

M: I was on the other side and you learn quickly who the good lawyers are and you begin to wonder about what makes a good lawyer and what makes it a good firm. I did some research in looking into the firm and eventually I was lucky enough to start working here. Bauer, Crider, & Perry is a firm that consists of five lawyers. We have Ronny Cryder and Robert Bauer, those two gentlemen are the founding partners of the firm. Then we have Curtis Crider and David Perry. And then finally you have me, Michael Kenny.  This firm has been around since 1989. They prosecute every single type of criminal matter that is prosecutable in the state of Florida. And that is the most unique thing about it is it's the only thing that we do. Meaning, you might go to other firms and other firms maybe do personal injury law, maybe other firms do some type of divorce law or family law. And that's good, but what we have learned, and what these other folks have learned before I started working here is that you do one thing great in life.  if you do one thing great, then stick to what you do great, and that's all we do.  All we do is criminal defense.  The unique thing about the firm is that each lawyer has his own pretty much area of practice.  When I say area of practice, we all cover the entire state of Florida, but there are some areas that we are more keen on practicing in.  So Curtis Cryer has a good presence in a certain area of the state, David Perry has a good presence in another area, and Ronny has a presence, Robert has a presence, and I have a presence in different areas. And that helps us work together to collectively handle criminal defense for the entire state.

 

2:48 B:Ok So you are more geographically than actual practice area wise?

 

M: Sure because I mean to be quite honest with you, when you have a firm that has different office locations, you're certainly not going to be wanting to drive or handle matters that are 10 hours away on a regular basis for two reasons.  One, it's a costly endeavor and two, you might not be as familiar in a far off area as you might be in where you frequently travel.

 

B: What all locations do you have?

 

3:26 M: Our main office is in Clearwater, Florida.  And then we have an office Paso County, in Port Richey. We have an office in Trinity, which is also in Paso County, which is where I was a prosecutor. We have an office in Hillsborough County which is directly across the street from the criminal courthouse there.  And we travel to other areas as well. Brooksville is very close to where our Paso County office is so I do a lot of work in Brooksville. 

 

B: But you cover the entire state of Florida?

 

M: We do.  There are some moments where it makes sense between the client and the firm to take on a case maybe in an area that is a lot further away from where we normally would practice.  But those come on a case by case basis.  For the most part, the counties that we cover on a regular and consistent basis are Hillsborough County, Pasco County, Pinellas County, and Hernando County.

 

B: OK. 4:29 The website's Floridadefense.com correct?

 

M: Correct.

 

B: And how long have you been with the firm, Mike?

 

M: I've been since I left the State's Attorney's Office in 2009, I've been with the firm ever since then. So we're going on seven years almost.

 

B: Who was the first attorney that you met from the firm?

 

M: Curtis Cryder

 

B: ok so when you left as a prosecutor you ended up somewhat interviewing with them and hitting it off with those guys, huh?

 

M: You got it. I was a prosecutor for 5 1/2 years and there comes a point when some prosecutors have an idea that they might want to move out of the state attorney's office and there was really only one place that I would consider working and that was here.

 

B: Tell me Mike, why criminal defense? What pulls you in that direction?

 

M: That's a pretty good question. You kind of learn when you're going to law school what subjects you like, what subject matters you like, and I think I learned early on in law school that I enjoyed trails, I enjoyed trying cases. While I was in law school, I was on the trial team at Stetson University.  That's a school that's pretty well known for preparing litigators - the people that try cases. The one thing that gets tried, the one type of law that gets tried probably more often than any other is criminal law. Those cases are more likely to go to trial than probably any other type of law. So when I graduated law school, I became a prosecutor. The reason why I became a prosecutor is those guys are always in trial and I began to learn very quickly that for me it was a comfortable fit. I picked it up pretty well. Criminal law is something that I know generally well and I was able to succeed in trying cases.  The unique thing is that when I left, a person would ask me why did you like criminal law as a prosecutor and well, I liked it because I liked trying cases. It was an enjoyable experience. I thought I was serving the people very well. I thought I was doing what I thought was being the good guy all the time.  And it's funny, because when you leave and you kind of get on the other side and you do criminal defense, you're sort of like occasionally you have an eye opening experience. And the eye opening experience that I had leaving and doing criminal defense is that these people that I would see that would come in to hire me to represent them on criminal matters weren't just names on a file. As a prosecutor you kind of see names on a file. You see names on a file, rap sheets, and police reports.  You don't get that experience of the person.  As a defense attorney, you see this gentleman walk in and he may walk in with his wife, he may walk in with his family. But you begin to know the person and you learn very quickly that sometimes people find themselves in situations whether through faults of their own or not. We make mistakes and we try not to make these mistakes these permanent life altering mistakes. And you get a chance now as a defense attorney to help a person remove themselves from this bad life choice and you get to help them succeed as a human being.  So now I can tell you that I like criminal law because I really believe it helps the folks that come to this firm.  I believe it changes lives.  

 

B: In working on the defense side, there's a more personal element, like you said. 

 

M: No doubt about it. No doubt about it.

 

B: I think two unique things I wanted to mention, and one is you, specifically, Mike.  You worked both sides. You were a prosecutor, right? You went up against Bauer Crider & Parry.  And now you're on the other side. So can you maybe discuss a little bit on the difference in those two and which one you like better? I'm guessing it's the defense side.

 

8:34 M:Yeah, well, I thought being a prosecutor was one of the most rewarding jobs that I ever had. So I definitely enjoyed it. The difference between the two? It's really not different so much in the fact that the law is exactly the same. I know that any good lawyer, whether it be a prosecutor or defense lawyer, always envisions the other side's case.  Always worries about the argument that the other side is going to present, or the objection the other side is going to make when you're trying to get certain evidence admitted. So, I think it was very easy to make that transition from being a prosecutor to being a defense attorney. But I would say the differences that you typically experience are as a prosecutor it was very easy to wear the white hat and say, " I'm out there saving the day." and sometimes you overlook things. As a criminal defense attorney, it's now a decision you make has an impact on one individual. His good name may be destroyed, his liberty being taken from him, or the ultimate penalty if we have a first degree murder case. And that sits on your shoulders, I would say, more as a defense attorney than anything sat  as a prosecutor.  As a prosecutor, if things didn't go your way, you'd say, " well, I'll get him next time." As  a defense attorney, if things don't go the way you'd like for your client,  it has a very personal impact.

 

B: It's a heavier weight.

 

M: Absolutely.

 

B: I don't want to really pick on your competitors, but one thing that also makes you guys unique is that you say you're trial lawyers - that you're not afraid to go to trial.  Are there a lot of other criminal defense attorneys that never go to trial?

 

M: I think that, speaking from the perspective of a prosecutor, prosecutors begin to learn what lawyers are good trial lawyers, and what lawyers are willing to go bat for their client and fight.  And I think that does have an impact on how cases are prosecuted.  I think it does have an impact on how cases are resolved.  So there are some lawyers who probably don't like to try cases as much, and don't get me wrong, I can certainly understand how the known quantity, meaning if a prosecutor makes an offer, how that known quantity is a lot easier to get your head around than the unknown, which is what happens if you go to trial and lose. But there are defense lawyers who probably have a reputation for not trying cases as much or not wanting to try cases as much, and I believe that does have an impact on the outcome.  People learn that. People know about that. People being the ones that you're up against. It's important that they recognize that while you want to work with them to get the best result for your client, if things don't tend to work out, you want them to recognize that you are still a lawyer, and that you'll try the case.

 

B: I think that's good. Do you think that sometimes it might scare the client when you tell them you're a trial lawyer?  They're going, "you mean we've got to go to trial?" 

 

M: I think there's a lot of folks who come in and when they speak to you and say, " hey i just want this thing resolved. I want to put this thing behind me. I want the best result." And you learn early on which cases are ones that are likely headed down the path of trial or not. But yeah, there are some clients that are definitely afraid of it and they should be. There are certain things about a trial that are just completely beyond your control. So that's understandable, but our job is to recognize, when you look at a case what is the best way to handle that case? When a person hires a lawyer, they're hiring a lawyer for two reasons; one, for him to defend them in court, but the other reason is for the advice.  A lawyer is not just an advocate, he's an advisor and he explains what some options might be and maybe what some of the best options might be.

 

B:Alright, well anything else that you want to add?

 

M: Well, the unique thing about our firm is that four out of the five lawyers in our firm are board certified criminal trial lawyers. I'd say that's unique because there's very few criminal trial lawyers in the entire state of Florida - there's less than 400. We're talking 380 some odd lawyers out of nearly 100,000 total lawyers and to have four of them under one roof is I would venture to say we might be the only firm that has that. That's a rare occurrence and to give you an idea, a board certified criminal trial lawyer are the only lawyers who can advertise themselves or introduce themselves as experts. The Florida Bar has very strict rules on how a lawyer is to describe himself and in order to be an expert in criminal trial, you have to have tried so many cases, you have to pass a peer review by both lawyers and judges. Lawyers that you may have had trials with. You have to pass a specific examination beyond just the entry bar examination. You have to possess the requisite amount of hours of continuing legal education. And you have to demonstrate your competence in the area that shows that you are an expert in the field. So it's a rare and distinguishing trait that lawyers work very hard to attain and I'm always amazed that we've got four under the same roof! 

 

B: You said 380 in Florida out of 100,000  total lawyers and then 4 out of 5 of the attorneys that are partners there at the firm are board certified. Wow, that's great!