Crimcourts is a blog by Florida Criminal Attorney Spencer Cordell, dealing with Florida criminal issues, and cases of nationwide interest. spencercordell@hotmail.com http://www.facebook.com/crimcourts
A former prosecutor has revealed that the Office of the State Attorney of the Second Judicial Circuit had an explicitly racist policy published to assistant prosecutors there. The policy, which was printed in a memo and posted in the Jefferson County prosecutor’s office, explicitly directed prosecutors to seek harsher penalties when the Defendants for No Valid Driver’s License charges were “Hispanic.”
It’s shocking for the office to have such a policy, and even more shocking they actually wrote it up and printed it out. The elected prosecutor likely did not know about it, this was posted in one of the branch offices of a 6-county circuit, but it is still appalling that such a document existed. The optics are particularly bad where the prosecutors in the office are all white.
The article does not contain a direct response from the prosecutors office regarding the allegations, though elected State Attorney Jack Campbell has argued against stereotyping. Sadly, the actions of his office to not match his words on the matter.
A clip from the policy from the picture taken by former prosecutor Mackenzie Hayes.
Former ASA Mackenzie Hayes, who revealed the policy, shortly left the 2nd Circuit SAO.
The Florida Supreme Court has accepted a case that deals with Florida’s ‘Marsy’s Law’- a legal provision that – among other things – prohibits the release of personal information for victims of crime. Since it was passed as an amendment to the Florida Constitution, it has been the subject of much litigation for First Amendment as well as its criminal ramifications. The case now before the Florida Supreme Court deals with First Amendment implications, specifically the release to media of law enforcement names when the officers are also implicated as the victims. The irony in this case is that one of the officers shot a man named Tony McDade, but claims that McDade’s actions made the officer a victim. Officers have sued to try to prevent their agency from releasing their names to the press, while the city hoped to release the names in the interest of police accountability.
The media has countered that allowing officers to be covered by the law would undercut the state’s open records laws. Florida has very broad laws allowing for publishing public records, often referred to as Sunshine Laws. However, though the name suggests Marsy’s Law is a law, it’s actually a Constitutional provision, which may end up trumping the open record laws. And while the First Amendment protects the right of media to publish information, it does not compel agencies to release information. The appellate court previously sided with the officers, ruling that they were entitled to the protection. Whether or not the policy is a good one is not before the court.
Denise Williams with Mike, and Brian Winchester (inset)
Mike Williams body was never found after his friend told police that he had drowned in a lake while they were duck hunting back in 2000. At they time, they assumed his body had been eaten by alligators, but his mother never believed it, and never gave up. She even paid for signs and billboards to get the police to investigate, right out of a movie. But the break in the case didn’t come until year later.
Denise Williams collected a $1.75 million dollar life insurance policy payout when her husband was declared dead. His best friend, Brian Winchester, had been fishing with Mike on the Williams’ sixth wedding anniversary, and apparently explained the disappearance well enough that the cops bought it. A few years later, Brian and Denise got married.
It turns out, Denise and Brian had been having an affair- a juicy affair involving threesomes with other parties, trial testimony revealed. She and Brian ultimately got married a few years after Mike’s death, in 2005, and their marriage lasted ten years, falling apart after both of them had additional affairs. Things came to a head in 2016 when Brian, apparently worried that his now-ex-wife would spill the beans about murdering Mike, that he kidnapped Denise at gunpoint. Major backfire, as Brian was now facing a possible life sentence for the armed kidnapping and armed burglary charges. Desperate to make a deal, Brian offered to come clean about Mike’s death. The prosecutors agreed to offer him immunity if cooperated, and 20-years on the kidnapping case. Brian explained that Denise has conspired with him to stage Mike’s death as a boating mishap so they could be together. Brian led authorities to Mike’s remains and charged Denise with murder, conspiracy, and accessory.
The trial was a juicy one, replete with intrigue and affairs. Denise’s defense suggested that Brian was lying to try to save his own skin, and that he had lied repeatedly to investigators. At trial, prosecutors introduced images from one of the threesomes with Brian’s first wife, but they brought her in and she testified that there had been a sexual encounter with she, Brian, and Denise prior to Mike’s disappearance. They also brought in a woman who testified she had had an affair with Brian while he was married to Denise, and that Denise had walked in on them together at one point.
Brian Winchester, via DOC
Ultimately, Brian Winchester’s testimony about Denise’s involvement persuaded the jury, who found Denise Williams guilty at her December trial. The sentencing occurred last week and was mostly perfunctory, as the court was required to impose a mandatory life sentence. Winchester still has most of his sentence in front of him, Florida DOC estimates his release date is not until July, 2036. Denise Williams is not eligible for any form of parole or early release.
This week, a Leon County judge enjoined the State from including proposed Amendment 6 from appearing on the ballot. There have already been a couple provisions stricken, and now the court has found a third violates the “truth in packaging” requirement the the description accurately inform the public of the contents and effect of the proposed amendment. As we discussed on the last one, there is a pattern apparent that the CRC decided to try to cram the amendments through by hiding the ball, as well as bundling multiple issues into several of the proposals. The courts have been unimpressed, as challengers are now 3 for 3 in their attempts to strike the amendments.
Amdendment 6 was problematic not just because it combined disparate subjects: victim’s rights, term limits for judges, and de novo review of administrative hearings. Amendment 6 was also flying under the banner of “victim’s rights”, (as it’s being pushed by a special interest group promoting ‘Marsy’s Law’), however, it was misleading because Florida already has a Victim’s Rights component to its Constitution, and this amendment would not only create additional victim’s rights, but it would likely infringe upon due process rights of the accused, as required under the federal Constitution. The court found multiple reasons that the title and summary of the proposal are incomplete or outright misleading, and has ordered that it not appear on the ballot.
The issue has been appealed, and it appears the Supreme Court of Florida will hear argument on it September 5, which I believe to be the same day they will hear argument on proposed Amendment 8.
Recently a Leon County judge prevented another proposed amendment from the CRC, the Constitutional Revision Commission (Amendment 8). As we have discussed at length before, the CRC chose to combine amendment proposals, which has led to several lawsuits seeking to strike the amendments due to the language describing them to voters being confusing. The court that ruled on the previous challenge, striking Amendment 13, found that the language in the summary amounted to outright “trickeration.” The judge in this case found that the language “fails to inform voters of the chief purpose and effect of this proposal.” There are additional challenges to other Amendment proposals regarding the summary language still pending. Also, former Supreme Court Justice Harry Anstead has filed a petition with the Supreme Court to strike all six of the bundled amendment proposals. And just this week, a group of former legislators, including former Lt. Gov. Jeff Kotkamp and former congressman Connie Mack have announced that they will be working together to fight the CRC proposals, and the process in whole. Their group is called Save My Constitution, and it is comprised of all republicans.
Ultimately, the apparent pattern consistent in the CRC proposals suggests a deliberate intent to get the proposals passed, even at the risk of misleading the public. The CRC’s explanation that they combined the proposals to reduce ballot fatigue don’t ring true: there are just as many issues being propagated, but they are packaged with together to attempt to increase the likelihood of passage with voters. Many of the issues really don’t belong in the Constitution, the CRC is using the Amendment process to skip the hard work of legislating in line with the statutory scheme: they want to cram disparate issues together under a positive sounding title and summary, and hope the voters go for it. Unfortunately, that plan relies on “hiding the ball” from voters, and instigated the numerous challenges now in the court system. These rulings will be appealed, and the Supreme Court will likely be the final arbiter, but the pattern has become apparent. And now the challengers are two-for-two in striking the misleading proposals. The Supreme Court will hear the appeal of the dog racing proposal next week.
The constitutional revision committee has proposed several amendments to the Florida Constitution
Judge has thrown out the amendment relating to dog racing, finding “outright trickeration”
More Amendments have been challenged in court for misleading summaries
At least four of the proposed constitutional amendments intended for the fall ballot from the Constitutional Revision Commission [CRC] are now facing legal challenges that the ballot summaries mislead voters. This week, a judge in Tallahassee has ruled that one of them, Amendment 13-which would ban dog racing, cannot be placed on the ballot because the descriptive language that summarizes the measure would be misleading. The judge found that the Title and Summary of the language is “clearly and conclusively defective”. An amendment cannot go before voters if the Title and Summary of the ballot measure do not let the voter know the true effect and extent of what the amendment would do. In this case, for instance, the title suggests the amendment “ENDS DOG RACING” and ends wagering on dog races; but the amendment does not, in fact, accomplish that. The court found that the Title and Summary do not comply with the Constitutional and statutory requirements of “truth in packaging”, and that the language “hides the ball” and amounts to outright “trickeration“.
The language of the Title and Summary was crafted by the CRC, presumably to increase the likelihood of the amendments passing. After the CRC decided what amendments it wanted to place on the ballot, it combined several of them into joint ballot measures, sometimes with several issues (20 would-be Amendments became 8 ballot measures). That immediately jumps out as problematic, as generally Amendments are for broad areas of the law, not discreet issues. And the issues often don’t go together, for instance, vaping and offshore drilling have been combined into one ballot measure. The likely reason is that the Commission, which is largely a partisan one, want to slide through less popular issues with popular-sounding ones which are more likely to pass. And to increase the likelihood of passage, the CRC created Title and Summary sections that may not clearly indicate the effect of the proposed amendments.
I call it “so-called” victim’s rights amendment, because in addition to victim’s rights, it would also affect judicial retirement ages and affect judge’s ability to defer to agency findings… three quite disparate purposes. The suit has been filed by respected local attorney Lee Hollander, who points out that due to victim’s rights already enshrined in our Constitution, “there’s no need for it”, as we already have extensive victim protections. No only that, the new rights the amendment would impede on the rights of the Defendant, in violation of the Federal Constitution, and likely cost the state dearly to comply with the superfluous requirements. The challenge to the lawsuit focuses not on whether the amendment is necessary, rather it alleges that the Title and Summary mislead the voter.
You might notice a trend here… four unrelated groups have all filed suit on four different proposed amendments, and they all allege that the voters would be misled by the language of the proposal. Regardless if you support the cause of the amendments, it is essential for all of us to know what might end up being included in our state’s Constitution. The fact that there are similar complaints about multiple ballot measures, suggest that the misleading language was part of a deliberate ploy by the CRC to sneak some of these issues through. Most of these issues really shouldn’t be Constitutional amendments anyway, they are the type of issues that should be deliberated and legislated to fit our statutory scheme. Attorney General Pam Bondi indicates she’s going to appeal the first ruling, because she supports the ban, but the problem is not the subject of the proposal, but the misleading way it was presented. There will probably be more measures taken off the ballot as the suits go through the courts. The blame falls squarely on the CRC, which deliberately drafted these proposals to hide the ball and deceive voters. We should be glad when they are called out on their “trickeration”.
The Tampa Bay Times has uncovered an email from an FHP supervisor instructing his troopers to write more tickets. “The patrol wants to see two citations each our…” reads the email from Major Mark Welch. He and FHP deny this is a quota, which would be in violation of state law: but this is a quota. He sets a minimum number of tickets he expects his underlings to write per hour. That’s exactly a quota. The fact that he says “This is not a quota” does not redefine what a quota is.
To make matters worse, there may be benefits tied to the number of tickets officers write. Troopers in Miami-Dade were given additional weekend passes when they met ticket-writing goals earlier this year. FHP ended that policy when it was exposed. It seems this new quota is tied to ‘SOAR’, an overtime program, though that program appears to incentivize them to work more hours, not to inflate their ticket numbers. Big brother is most definitely watching.
The Florida Supreme Court overturned the contempt conviction and jail sentence for juror Noel Plank, saying that the procedure for trying his contempt hearing was flawed, and that he should have been entitled to an attorney. The court found that since the drinking that led to his intoxication occurred out of the court’s presence, it should not have been heard as ‘direct criminal contempt’ [think of an angry defendant making a scene in a courtroom: that would be direct contempt]. Rather, the court found that it should have been treated as ‘indirect criminal contempt’ [think of someone going home and refusing to obey a court order after they leave]. The courts have long held that those accused of contemptuous conduct are entitled to attorneys for indirect contempt hearings, and that this proceeding was properly considered indirect.
Plank had already served 17 days in jail, when the court reduced his sentence. Since this sentence was overturned on procedural grounds, he could technically be facing a new hearing for indirect contempt, though I doubt anyone wants to go to the trouble and expense of prosecuting a man who already served his time.
State Legistlator Dane Eagle pled out to a reduced charge of reckless driving from his DUI arrest in Tallahassee. That’s not an unusual result on this type of first-time offense, that did not have any egregiously bad facts. Tune in to NBC-2 this evening, as they may run some of my comments on the case. Generally, when a DUI is reduced, there are similar sanctions to a DUI charge, just with a different conviction.
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