An Impartial Jury

In Florida, most jury trials are conducted with six jurors.  How do those six get picked?  From a large group of people who are asked a lot of questions.  How do you ensure that those six will be fair and impartial?  You make sure they are judging the facts of the case before them, not the character of the defendant.

The Fourth District Court of Appeals recently held that when a potential juror is informed that the defendant in a criminal case may potentially have a prior criminal record, that potential juror is no longer permitted to serve on the jury.  The exception would obviously be in cases where a defendant’s criminal record is an element of the offense charged, such as possession of a firearm by a convicted felon.

In Evans v. State (35 Fla. L. Weekly D1291), a corrections officer found his way onto a potential jury panel.  Responding to an inquiry as to whether or not he had ever met either of the defendants before, he told the attorney that he had been in contact with the defendants “quite a bit already.” Even though the defense attorney objected to this statement and asked for a new jury panel, the trial judge refused to provide one.

In reversing the trial judge’s decision, the District noted the long line of cases that stand for the proposition that a jury is to decide the facts of a case, not the character of a person.  Cases such as Richardson v. State, 666 So. 2d 223 (Fla. 2d DCA 1995), Jackson v. State, 729 So. 2d 947 (Fla. 1st DCA 1998), and Holt v. State, 987 So. 2d 237 (Fla. 1st DCA 2008) have long stood for a defendant’s right to fair, impartial, and untainted jury.  The problem with allowing juries to know about any other crime than the case before them is the common tendency to assume that because a person has done wrong in the past, they are more likely to do so again.

Jury trials are about fairness.  They are about due process and ensuring that everyone who has any decision-making authority, be it judge or jury, is utterly unbiased.  Is this lofty goal always met?  Sadly, no.  But I am glad to see that the Fourth District has decided that even the slightest indication of a criminal background or bad character requires the introduction of a new jury panel.

If you are facing the prospect of a criminal trial, don’t face it alone.  Visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

~Robert Shafer

Restitution in Florida

In 2005, the Florida Legislature redefined the meaning of the term “restitution” in our state. When the Legislature amended Florida’s Victim Restitution Act in 2005, it broadly expanded what was previously a fairly narrow issue. In days past, a victim of a crime was entitled to things directly caused by a defendant’s crime, i.e., medical bills, damage to property, etc.  Losses such as lost wages and incidental expenses were not included in this statute, and had to be sued for in civil court.

Then the Legislature changed the statute to include losses indirectly cause by a crime.  This vague addition has opened up the criminal justice system to an enormous potential for abuse: a potential that has, on many occasion, been realized.  I see this happen, most often, in cases that involve a pre-existing relationship.  For example: two brothers who have been at odds with each other for years.  They finally get into a physical confrontation that lands one of them in the hospital.  After the injuring brother pleads guilty or is convicted, the victim shows up to court and asks for his medical bills to be paid for, which the judge kindly grants.  Then the victim asks for the wages he has lost because he was later fired from his job.  The reason he was fired?  The victim testifies that it was because he missed so much work while he was in the hospital, but the truth is that he was chronically late.  How much are the lost wages?  The victim claims that he made $25 an hour, but the truth is he only made $17 an hour.  The judge considers this testimony and grants the victim an enormous award for restitution.

Why should this testimony be enough?  Because of Florida’s new restitution statute.  Under the statute, the victim has no burden but merely asserting a number to the Court.  The burden to establish the veracity of these claims is met solely by the victim claiming it is so.  There is no testimony from experts, no discovery entitling the defendant to the victim’s employment or tax records, no meaningful opportunity to rebut these allegations.

Florida’s restitution statute is unfair.  It intrudes into areas that used to be reserved for civil law suits.  In the civil realm, safeguards like discovery production, expert testimony, and jury findings ensure that the number arrived at is a fair one.  Instead, an enraged victim is given the chance to take money from a defendant, with no check on honesty.

This statute needs to change.  Its authority should be restricted to areas easily provable and not commonly subject to dispute, such as medical bills and the cost to repair property.  Until then, there will always be the possibility for injustice in Florida’s criminal justice system.  If you are facing a restitution issue, don’t face it alone.  Visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

Regards,

Robert Shafer

Sex Offender/Predator Registration

“Being forced to register as a sex offender is not punishment.  It’s just a way of letting the public know about people convicted of certain crimes. Registration as a sex offender in no way effects a person’s rights.“

That’s the position that the Florida Legislature has taken regarding the harsh, draconian punishment of registration as a sexual offender or predator. It’s a ludicrous position, and I will tell you why.

Being forced to register as a sexual offender twice a year in a database that is searchable by the public is perhaps one of the most humiliating and destabilizing punishments that the judiciary can impose. If an offender fails to register or fails to update any of his contact information, he or she will be prosecuted for a second degree felony that requires mandatory prison time. Does this sound like a harmless sanction?

It is not my position that no one should be forced to register as a sexual offender or a sexual predator. There are many deeply disturbed individuals in our society whose presence should be known and accounted for. Those who target young children, those who have shown violent sexual tendencies, and those who suffer from mental disorders that lead them to target others should be watched very closely by the government. Registration is often an appropriate punishment for these individuals.  However, Florida Law does not consider individual cases: every single person who is convicted, pleads guilty, or pleads nolo contendere to a sex crime must register. .. for the rest of their life.

The first step in using this societal tool in a responsible and accurate manner is recognizing that it is a punishment. The second is recognizing that not everyone accused of a sexual crime should be punished as a chronic offender or predator. I have represented many eighteen year old males who had sex with their sixteen year old girlfriends and were prosecuted for it. These young men should not have to register. I have represented upstanding adults who have been accused of crimes and pled nolo contendere to sex charges because they feared a trial where it would simply be their word against that of a credible, albeit alleged, victim. I have represented people who, in a rare bout of extreme intoxication, went too far with a person they were already romantically involved with. Are these people predators? Do they deserve the lifelong stigma of being searched out on a public database? Do they deserve to be sent to prison for living too close to a school where their child may attend, or for neglecting to give the government their new address?

There is no easy answer to these questions, but I have handled cases where the deciding factor is an experienced attorney who can portray their client as a person, not a monster. If you are facing prosecution for a sex crime, don’t face it alone. Visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

What to do when you’re served with an injunction

An injunction is Florida’s version of a restraining order. When someone asks a court to issue an injunction keeping you away from them, the Court will immediately grant a “temporary injunction” until there is a full hearing to determine if there should be a permanent one. Temporary injunctions are just as powerful as permanent injunctions, and violating the terms of that injunction can have serious consequences. If you are given an injunction ordering you to have no contact with someone, you may feel hurt, betrayed, angry, worried, or outraged. At this point, you have many legal options: you can consult an attorney to determine if you want to get your own injunction against that person, you can hire an attorney to represent you at the pending injunction hearing, or you can simply agree that a permanent injunction should go in place against you. The one option you absolutely do not have: contact the other person in an attempt to work it out. Emails, text messages, even comments and messages on networking sites like facebook and myspace can amount to a violation of an injunction. Over the past few years, I have seen the law adapt to our recent technological advances, and if you think that an injunction doesn’t forbid these types of contact, you’re wrong. I have seen people go to jail over simple friend requests. However, if you do find yourself in the position of having made some sort of contact despite an injunction, you need representation. There are criminal penalties associated with this type of action, including fines, probation, and even up to a year in jail. The penalties that enforce injunctions are tough, and judges typically do not look kindly upon those who, in their opinion, ignore a lawful order. The injunction process is technical and has very strict legal standards. Whether you’re seeking one against someone, trying to understand why one was issued against you, or simply trying to prevent one from being ordered, it never hurts to have an experienced attorney on your side. Visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

Injunctions

Sometimes people need a restraining order.

In Florida, a restraining order is commonly called an “injunction.” An injunction is simply a legal term for a court order that either forbids you from doing something or that forces you to do something. Sometimes these injunctions provide much needed protection from dangerous people, but sometimes they can be used as vindictive tools to further another person’s agenda.

For example, there have been times that I represented young women who were frightened because their ex-boyfriend or ex-husband would not leave them alone. And by this, I mean that their conduct rose to a level that normal people wouldn’t feel comfortable with, like hanging around the outside of her residence at night, uninvited, or sending threatening texts or emails.

When relationships deteriorate to this point, an injunction can be a useful way of putting needed space between two people. I have also represented people in the opposite situation. Sometimes people use injunctions to further their own agendas in divorce proceedings or custody battles. Sometimes people use injunctions for revenge. The point is that the injunction process can be abused. When that happens, you need an experienced attorney in the courtroom fighting for your interests.

Injunctions can be issued upon a showing of a credible threat to one’s person or property. All testimony in injunction hearings is under oath, meaning that a lie may result in being held in contempt of court or perjury charges. Most importantly, violating an injunction is a first degree misdemeanor that can be punished by up to a year in jail. There can be a lot at stake in these types of proceedings. Don’t face it alone. Call me at (904)350-9333 for a free consultation.

Regards,

Robert Shafer