by David M. Reutter

A constitutional amendment passed by Florida voters in November 2018 requires that victims’ privacy must be protected, in order to prevent retaliation after the criminal (or alleged criminal) is released from prison or jail, whether after completion of a sentence or on bond. However, details regarding implementation of the law have proved difficult to figure out, leaving a hodgepodge of law enforcement practices around the state. Meanwhile, civil rights advocates say the law’s strict time limits to complete appeals in criminal cases increase the risk that an innocent person may be executed.

Known as “Marsy’s Law,” Amendment Six to Florida’s Constitution follows a nationwide trend championed by California tech billionaire Henry T. Nicholas III; the law is named for his sister Marsalee, a college student who was stalked and murdered by her ex-boyfriend in 1983. A week after her death, when the alleged killer was released on bond on a second-degree murder charge, he confronted Nicholas and his mother in a grocery store. [See: PLN, Feb. 2018, p.52].

Ironically, Nicholas has faced criminal charges himself; he was arrested in August 2018 after police officers found cocaine, heroin, ecstasy and meth in his Las Vegas hotel room. Nicholas and a co-defendant entered an Alford plea on October 2, 2019, and were sentenced to participate in substance abuse counseling. They will also make a $1 million donation to Las Vegas drug treatment programs and perform 250 hours of community service.

In Florida, state law already provided some protection for victims’ rights, including notice of case progress and the opportunity to have a voice during the prosecution and to seek restitution. As a result, Gainesville State Attorney Bill Cervone said he didn’t believe that Amendment Six was “productive or will accomplish anything for victims.” St. Petersburg State Attorney Bernie McCabe called the amendment “a solution looking for a problem.”

But their counterpart in Tampa, State Attorney Andrew Warren, said he hoped the new law would “encourage more victims to have confidence that we can prosecute the case without subjecting them to harassment or intimidation.”

The constitutional amendment passed despite opposition from the state bar association’s Criminal Section, whose president, Jacksonville defense attorney David Barksdale, worried it “erodes the core foundation of the criminal justice system: that a prosecution is between the state and an accused citizen, not a contest between two private citizens.”

He added, “Our Florida Constitution and law already do a great job of protecting crime victims.”

Yet the opposition was no match for the group funded by Nicholas, which spent $30 million to promote Amendment Six in Florida, assisted by proponents like Michael Liles, whose wife, Debbie, was murdered in 2017. Now executive director of the Jacksonville Justice Coalition, the 62-year-old said he was never notified of any of the nearly 20 hearings for his wife’s alleged killer, despite existing statutes that said he was entitled to be informed.

“The truth of the matter is no one is assuming the responsibility of that notification, so it doesn’t happen,” Liles said.

“If someone is released [on bail or otherwise] before first appearance, whose job is it to notify the victim?” countered West Palm Beach State Attorney Dave Aronberg. “We [state attorneys] don’t even have the case before first appearance. Is it the police’s job? Is it our job?”

The constitutional amendment answers none of these questions. Instead, it grants crime victims a broad right “to prevent the disclosure of information or records that could be used to locate or harass the victim or the victim’s family, or which could disclose confidential or privileged information of the victim.”

However, law enforcement officials wonder, for example, whether that means a victim has to request confidentiality or must consent to the disclosure of information. Does the defense have to file a motion in court to obtain the victim’s identity? Some law enforcement jurisdictions are not releasing any names of crime victims or the location of the crime, even when it is perpetrated against a business.

“Most circuits and counties across the state have been figuring out what to do locally and finding local solutions that they are comfortable with,” noted Cervone.

“Law enforcement agencies are applying Marsy’s Law in a variety of different ways, which makes it difficult,” agreed Carol LoCicero, board chair of the First Amendment Foundation of Florida.

LoCicero, a Tampa attorney who has represented news media organizations, said the change in the law has prompted some jurisdictions to withhold information about victims from the press, too.

“The very kind of routine information that we used to get about the basics of a crime so you could report ... so neighbors would understand what had happened in their neighborhoods and neighborhood businesses ... you’re not getting a lot of that now,” she noted.

“It would be helpful for agencies who are on the front line ... to have some guidance,” agreed David Marsey, general counsel of the Florida Police Chiefs Association. “The consensus between the legal advisers is this is in a state of flux.”

Some jurisdictions are also applying the law retroactively, something state Senator Lauren Book filed a bill specifically to address, along with a slate of guidelines for implementing the law’s thornier provisions.

“I know what it’s like to be a victim of a violent crime and not have the same constitutional rights as my perpetrator,” Book said.

Her bill died without a committee hearing during the most recent legislative session, leaving questions about implementing Marsy’s Law unanswered.

A spokesperson for Florida Court Clerks & Comptrollers, Savannah Sullivan, said the group is trying “to determine a best practice that we can implement statewide. We’re still working on that.”

Meanwhile. Kylie Mason, press secretary for Florida Attorney General Ashley Moody, said her office had prepared a pamphlet listing crime victims’ rights, both those that are automatically granted and those that require specific requests, including notice of all public proceedings in a criminal case, clemency, the expungement process and the defendant’s release or escape from custody.

Defense attorneys point to another provision of the law that places limits on appeals, requiring that they “must be complete within two years from the date of the appeal in non-capital cases and five years in capital cases,” unless a judge requests an extension with a specific explanation as to why the deadline could not be met.

Paul Hawkes, a former Florida appellate judge and lobbyist for Marsy’s law, said the provision limiting appeals “doesn’t require completion [of an appeal]. It requires reporting and it requires reporting with thought that when there is reporting, people are more careful.”

Yet Frank Bankowitz, who has defended 20 Florida death row prisoners, said the law will “wreak havoc on the courts,” as just the process for an attorney to qualify to represent a prisoner in a capital case is already extensive, and the state currently lacks “enough qualified appellate attorneys to handle them.”

Florida voters narrowly adopted Marsy’s Law the day after the 29th person was exonerated and released from Florida’s death row. Of those 29 innocent prisoners, 15 were released at least five years after their convictions were appealed. Clemente Aguirres was the latest exoneree, and it took 14 years before he was released. Had the new law been in effect at the time he was wrongfully convicted, he would have been executed.

Marie-Louise Samuels Parmer, a Tampa attorney with the Capital Collateral Regional Counsel, which represents death row prisoners, said the appellate time limits create “the substantial risk that an innocent person can be executed, or that an innocent person can spend the rest of their life in prison on a non-capital case.”

Florida was the sixth state to adopt some version of Marsy’s Law, though the statute in Montana was struck down by that state’s supreme court. Voters in South Dakota were forced to amend Marsy’s Law two years after it was adopted, when prosecutors and police complained about increased implementation costs and said it hindered criminal investigations. 

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Sources: Orlando Sentinel, Palm Beach Post, floridabar.org, worn.org, jacksonville.com, forbes.com