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Self-implementing Marsy’s Law needs some implementing help

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With or without legislative action, litigation over the new amendment is expected

Complying with the new “Marsy’s Law” constitutional amendment protecting victims’ rights “is not going to be easy,” and “the logistics are going to be difficult and potentially expensive.”

Eighth Circuit State Attorney Bill Cervone Bill Cervone offered that opinion toward the end of the Senate Criminal Justice Committee’s January 7 meeting, which looked exclusively at the amendment approved by voters last November and which went into effect the next day.

The committee heard from a wide range of speakers, and not all were as pessimistic as Cervone. But there was wide agreement that although the amendment specifically says it is self executing, some guidance from the Legislature would be helpful, and even then many issues will probably wind up in litigation.

“I don’t know if we need to do that today or not,” committee Chair Sen. Keith Perry, R-Gainesville, said of working on implementing legislation. “The goal today is to have a discussion and open that up.”

He said Sen. Lauren Book, D-Plantation, who was not at the meeting, was drafting and planning to file an implementing bill.

Former First District Court of Appeal Judge Paul Hawkes, who works with Marsy’s Law for Florida which advocated for the amendment, praised the amendment as a comprehensive protection of victims’ rights, but added that legislative guidance is needed.

For example, he said the bill gives victims the option of requesting notification about and to be involved in all significant steps of the legal process, including pretrial release hearings, sentencing hearings, receiving any presentencing reports, and being notified when a defendant is released from prison. It also guarantees victim privacy, including any information that could identify the victim and reveal his or her address, and says that the victim’s rights are no less important than the rights of the accused.

Legislation can provide uniformity and improve the procedures necessary to carry out those mandates, Hawkes said.

“I think there’s lots of areas where we can take steps so these rights are applied uniformly across the state of Florida and it’s not done on an ad hoc basis,” he said.

He also said most of what is in the amendment already existed in statute.

David Marsey, general counsel of the Florida Police Chiefs Association, said law enforcement is concerned about possible conflicts between Florida’s public records laws and the requirement in the amendment to keep certain victim information confidential. The amendment automatically requires protection of information that could be used to harass the victim or his or her family or disclose confidential or private information.

Law enforcement needs to know, Marsey said, exactly what that provision covers, such as the victim’s name, address, work address, email address, and other related information.

“It would be helpful for agencies who are the front line. . . to have some guidance from the Legislature, what is exactly included in that information that is exempt from public records,” he said. “The consensus between the legal advisors is this is in a state of flux.”

Cervone said just informing victims of their rights will be an issue. He noted that it could be days or weeks after an incident or arrest before the case reaches state attorneys, so police may be primarily responsible for educating victims, and he said a Miranda-type disclosure might be necessary.

He also disputed Hawkes’ call for a uniform statewide system, saying smaller counties might not be able to afford or need an extensive Marsy’s Law victim notification and protection system.

There will likely be other problems. Judges routinely impose a no-contact order on defendants on pretrial release, but if the victim seeks to protect his or her location, it could be difficult for judges to tell defendants where they are not allowed to be, Cervone said.

Plus, if the victim opts for notification, he or she must be informed and have the right to participate in nearly every step of the case, including pretrial release, the trial, plea deals, and sentencing.

“The involvement of the victims in the schedule is going to be difficult for us and will be more difficult the longer a case goes on,” Cervone said.

While much of the amendment followed existing statutes, a new wrinkle is victims now have the right to be notified and be involved in any expungement or record sealing hearings, he said.

Eighth Circuit Public Defender Stacy Scott said the amendment creates many uncertainties.

“A lot of terms in this amendment are general and are not well defined and are very broad,” she said. “When taken to the extreme, they can be almost paralyzing to our criminal justice system. . . .

“If you decide on implementing legislation, a definitional approach is a wise one. Take a common-sense view that acknowledges the strong victims’ rights laws already in place and that the rights of the accused are not diminished by the implementation of the amendment.”

The amendment, Scott said, requires that non-capital criminal appeals be finished within two years. That will require substantially more resources for appellate public defender offices, the Attorney General’s office, and appellate courts, she said.

Scott also said the notification option in the amendment should apply only to persons, not corporations, adding, “Victims should be a natural person. Every one of the rights in Marsy’s Law talks about people. . . . It was never intended to be about businesses or corporations to have these kind of privacy rights and notification rights.”

The privacy provisions could also be problematic, she said. Public defenders have to know the victim’s name and contact information in order to investigate the case and vigorously represent the defendant. It also raises questions about whether the press could be barred from crime scenes and if resulting pictures and videos might be censored, Scott warned.

The restitution provision of the amendment also is expanded from the existing statute, by allowing compensation for indirect, as well as direct, harm.

“What does that mean?” Scott asked. “Will every criminal case be about pain and suffering?”

She also expressed concern about the speedy trial provision in the amendment, which allows the state attorney to file for a speedy trial. The court has 15 days to rule on the motion, and if granted the trial must be held in five to 60 days. Scott said there’s no requirement that the state attorney comply with discovery requirements before filing such a motion, although Hawkes countered that courts would be unlikely to grant a motion in such an instance.

First District Court of Appeal Judge Clay Roberts said the two-year limit for non-capital appeals could cause problems. The current criminal procedural rule, he said, allows filing an appeal within two years of a mandate being issued in a case. (A subcommittee of the Bar’s Criminal Procedure Rules Committee has looked at the amendment’s requirements and is recommending, for the moment, no changes in the procedural rule. The full committee will consider the issue at a January 18 meeting.)

Another issue is whether courts should consider the amendment effective only prospectively or whether it applies to cases already underway, Roberts said. He added victims can easily be kept informed about appellate developments by adding them to the case’s automatic email service list, although their email addresses might have to be kept private to comply with the amendment.

Fourth Circuit Chief Judge Mark Mahon said the amendment could affect the way some cases are handled, including those where the defendants plead guilty at arraignment or first appearance — when there may not have been a chance to inform the victim.

He also said the Fourth Circuit handles 10,000 misdemeanors a year, frequently with a single court appearance and it might be difficult to notify and involve victims in those cases. And it’s important that the courts not be involved in notifying or contacting victims.

“We do not want to be put in the process of notifying the victims or hearing from the victims on an ex parte basis,” Mahon said. “Unsolicited contact is not appropriate in our circumstances.”

Involving victims in the process is valuable, he added, because it builds credibility for the criminal justice system.

Sen. Jason Pizzo, D-Miami, a former prosecutor, asked whether the amendment would affect prosecutions for battery, which typically must prove the ID of the victim and where it occurred, which could also identify the victim.

“Would I no longer have to prove ID or venue?” he asked.

“You would have to provide the victim ID or it’s not a battery,” Mahon replied.

He added that while a legislative implementation bill is needed, “I think no matter what you do as the Legislature, there’s going to have to be interpretations by the courts.”

Sen. Anitere Flores, R-Miami, asked the committee’s staff to look at how other states that passed similar laws coped.

“We’re going to have our work cut out for us,” Flores said.