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Marsy’s Law confidentiality rule proposed, debated at RJAC

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Florida’s clerks of courts have presented a plan and associated procedural rule change to implement the Marsy’s Law victims’ rights constitutional amendment approved by voters last November, that, among other things, protects identifying information about crime victims.

Polk County Clerk of Court Stacy ButterfieldFlorida Court Clerks & Comptrollers President and Polk County Clerk of Court Stacy Butterfield and Volusia County Clerk of Court Laura Roth unveiled the plan October 18 at a public hearing held by the Rules of Judicial Administration Committee at the Bar’s Fall Meeting.

RJAC Chair Judge Josephine Gagliardi assigned the clerks’ proposed rule to a subcommittee, which is scheduled to report at the full committee’s February 7 meeting. A recommendation to the Supreme Court is due 10 days later.

Testimony ranged from whether Marsy’s Law would impede defendant rights to how it would affect appeals,and whether the clerks’ proposed rules are too vague.

Roth headed the FCCC task force on carrying out Marsy’s Law. She said the proposal, to be incorporated in Rules of Judicial Administration 2.420 and 2.425, is to have all law enforcement agencies or state attorneys when filing initial charges with the clerk include a form indicating if victims have opted to keep certain information confidential. That would include anything that could identify the victim or where they live.

The proposed form, she said, is one already used by many sheriffs and police departments.

“Currently, most law enforcement agencies are providing victims in the field with the option of completing an opt-in form protecting their identity,” Roth said. “The [rule change] requires that law enforcement agencies or state attorneys file those forms with the case initiation document, or as soon as possible.. . .

“Once the right to protection has been invoked. . . we recommend that filers [under Rule of Judicial Administration 2.425] be required to minimize the appearance of victim identifiers using generic terms. . . . The filing of notice of confidential information puts the clerk on notice that redaction of information in a case is required.”

Victims also would be able to file a notice later in the case if they decided then to invoke their rights under Marsy’s law, she said.

“We believe the proposed rule language and draft opt-in form provide a workable path forward for this committee to formalize a process that honors the intent of the constitutional amendment and in a way it’s manageable for crime victims, clerks, and justice agency partners while also facilitating case access,” Roth said.

Tampa attorney Carol LoCicero, representing a consortium of media interests, said the clerks’ proposal was a good start, but needed more work, including definitions of what information could lead to identifying a victim and hence could be redacted.

There are also instances in which a victim will opt for redaction and then reveal their identity through social media or another venue, or their identity becomes known in some other way.

“Under historical precedents, once protected information becomes public, it is no longer kept secret,” she said.

Issues on closing hearings, sealing records, and involving the Sixth Amendment rights of defendants to confront accusers also must be addressed, LoCicero said.

“We would like the committee to keep in mind that we are not an anonymous justice system and there are potential outstanding issues that are very complicated with handling Marsy’s Law,” she said. “We are happy to continue working with the committee and the clerks with a rule that does not provide for sort of automatic open-ended closure of that information.”

Tallahassee attorney Paul Hawkes, representing Marsy’s Law for Florida, said the issue is as much victim privacy as victim protection. His organization surveyed local law enforcement agencies and found some are automatically withholding all information about victims while others are giving victims the option to have identifying information withheld.

“We support an opt-in, for sure,” Hawkes said. “We support the clerks’ effort. We think this is a workable solution. We support that there’s something in the court file that lets the judge know, the state attorney know, lets the public defender know, and lets anyone else who might become involved in the case know. It’s a good way to proceed if we’re going to try to put any meaning behind this important constitutional right.”

Tallahassee attorney Tom Hall, chair of the Appellate Court Rules Committee and a member of RJAC, said more detail is needed for how Marsy’s Law will affect criminal appeals.

“The clerks’ opt-in provision seems like a very good one to the Appellate Court Rules Committee. We have very large concerns about how that information is going to be transferred from the trial court to the appellate court when an appeal takes place,” Hall said. “Sometimes there are multiple appeals, sometimes you get multiple post-conviction motions being filed. By the time you get around to the third post-conviction motion. . . how is that Marsy’s Law information. . . going to be made available to the clerk of the appellate court so the court can keep that information confidential?”

Aside from the confidentiality concerns, when victims opt-in to Marsy’s Law they have the right to be educated about and participate in the appellate process.

“We’re concerned about how that will really work,” Hall said. “How are we going to allow Marsy’s Law victims to participate in that process?”

A separate issue is a Marsy’s Law mandate that all non-capital appeals be completed in two years and all capital appeals in five years. The Supreme Court has referred that to its District Court of Appeal Performance and Accountability Commission and Hall said the Appellate Court Rules Committee would like to be involved, too, if the commission’s recommendations are forwarded to RJAC.

Marsy’s Law is providing new complexities for his operation, according to Ninth Circuit Public Defender Robert Wesley. He said there are cases where the victim’s attorney has sought to remove defense counsel and where the defendant was accused of killing a family member, and the family did not want the defendant to go to jail.

“Under Marsy’s Law, are they empowered to make that decision, to make that call?” he asked. “We don’t know.”

Sarasota attorney Varinia Van Ness, also representing FACDL, said some state attorneys are not listing any victim information in discovery, require that defense counsel contact with witnesses be done through the state attorneys’ offices, and that defense counsel also guarantee they will not disclose victim information they receive.

“The presumption of innocence seems to be forgotten with this amendment,” she said. “Because until someone is adjudicated guilty of the offense, the victims are alleged victims and it’s interfering with the exchange of information with the state attorney’s office.”

A different perspective came from Rachel Sines, a victim years ago of a home invasion and sexual assault. The defendant for a time acted as his own counsel and used personal information in the case file to call and harass her and witnesses, and a roommate of the defendant used that information to steal her identity.

Marsy’s Law came too late for her, but Sines argued, “Right now, discovery goes right to the defendant without any review of what information is personal. This doesn’t mean public defenders and defense attorneys can’t have access to information needed to defend their clients, but that unnecessary information wouldn’t be exposed.”

Amira FoxTwentieth Circuit State Attorney Amira Fox said her office already follows the procedures suggested in the clerks’ proposal and has spent hundreds, if not thousands, of hours working on Marsy’s Law compliance.

She said her office files a notice of confidentiality with the initial case information and while the defendant must be given the victim’s name, other information, such as address, where they go to school, and the like, is not shared unless the defendant already knows it.

“It’s a very difficult balancing act. I will share with you that we have struggled with it,” said Fox, adding it’s unclear to many law enforcement agencies whether Marsy’s Law is mandatory or opt-in.

Palm City attorney Paul Regensdorf, a former long-time member of RJAC, said the lack of specificity about what is covered by identifying information in the clerks’ proposed rule is concerning.

“Anyone of us in this room could sit and list very quickly 10 or 15 factors that should be included in that list of materials that should not be disclosed, but no one has done that,” he said. “The clerks should not be called upon to do that on their own. Each clerk should follow a standard rule and not apply some general feeling on their own. The clerks on this point are ministerial authorities, their actions are directed by the Supreme Court. At this point, based only on the language in this provision, they need help.”

But during discussion after the public hearing segment, Clerk Roth said clerks have experience with identifying protected information. She noted that Rule 2.420 currently provides confidentiality for victims of child abuse, sexual assault, and other categories and clerks have been able to deal with that.

“This is not new, really. It’s a new category,” she said. “I feel confident we are relatively good at it.”

LoCicero said she was concerned about arguments that Marsy’s Law should be given a broad reading. Case law in Florida, she said, has traditionally favored open courts and records with only narrow, specific exceptions allowed.

“To have the broadest reading of Marsy’s Law is contrary to that,” LoCicero said. “With the situation you’re handed and with no case law yet or additional legislative guidance, from a practical standpoint what you’ve been handed [from the clerks]. . . is the best initial step you can take.”

Committee member Michael Schmid asked if protecting confidential information was an automatic rather than opt-in right since opt-in provisions are in subsection 6 of Marsy’s Law while the privacy rights are in subsection 5. That section says victims have “[t]he right to prevent disclosure of information or records” that could identify the victim or reveal the victim’s address or be used to harass the victim or the victim’s family or reveal other confidential or privileged information.

That was not discussed by the Constitution Revision Commission, which proposed the amendment, Schmid said.

Hawkes replied that the intent of the amendment is to put the victim in charge.

“If the victim wants to become public, they have that right,” he said, adding the opt-in form was the best way to address that, especially when victims are immediately given the form.

Hawkes also said Marsy’s Law does change the practice of prohibiting a victim who would testify from being in the courtroom for other parts of the trial. The victim, under the amendment, would be allowed to be present for jury selection, opening statements, and other witnesses’ testimony, he said.

The clerks’ proposal would amend Rule of Judicial Administration 2.420, which governs the filing and handling of confidential information. One change would define a crime victim as “any person who has invoked the protection of Art. 1, Sec. 16(b)(5) of the Florida Constitution,” which is the Marsy’s Law amendment section addressing confidentiality.

It would also add this language as section (d)(3) of the rule titled, Rights of Crime Victims:

“(A) Any law enforcement agency or state attorney initiating criminal proceedings shall, at the request of any victim of the crime involved in the proceeding, file with the clerk, along with the initiating documents or upon receipt if not available at case initiation, a copy of a victim confidential information opt in form for each victim requesting confidentiality. The opt in form shall be treated like a Notice of Confidential Information and processed the same way by the clerk.

“(B) In any criminal case in which rights have been invoked by the filing of a victim confidential information opt in form, filers of subsequent documents shall minimize the presence of victim identifying information in accordance with Rule 2.425(3), or file a Notice of Confidential Information with each subsequent court document that contains victim identifying information pursuant to (d)(1)(b)(2).

“(C) A victim may file a Rights of Crime Victims ‘Marsy’s Law’ Confidential Information in Court Records Opt in Form at any time in a criminal case. Such form shall be treated like a Notice of Confidential Information and processed as such by the Clerk.. . . ”

Another part of the proposal adds a new section to Rule 2.425(a) that provides, “The name of a crime victim shall be referred to using generic indicators such as ‘Victim’ or ‘Victim 1,’ ‘Victim 2.’”

Rule 2.425 seeks to minimize the amount of sensitive and personal information lawyers put in court files.

The clerks’ Marsy’s Law proposal will continue to be studied.

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