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Recently an Orlando Sentinel article titled “Cracking down on pizza menus, other handbills distributed illegally at hotels” caught my eye. I found the story interesting because I have represented these supposedly rouge individuals who pass out flyers on private hotel properties. They are inevitably teenagers paid minimum wage to pass out flyers for some small, mom-and-pop pizza joint that is just trying to get a piece of the Disney pie.

It should be no surprise that “lobbyists for both the Central Florida Hotel & Lodging Association and Walt Disney World” supported the bill. As every dollar that is spent at a local small business is one less dollar going into their corporate profits (never mind that the small business charges less for a better and local product).

The story outlined a bill sponsored by Rep. Steve Crisafulli, R-Merritt Island which sought to increase the penalties for passing out flyers on hotel properties without permission. His purported reason for sponsoring the bill “arose out of complaints from Central Florida hoteliers that criminals are using bogus menus and coupons to trick tourists into handing over their credit-card numbers, to burglarize their unlocked hotel rooms or to steal peoples’ identities.”

As I am all for capitalism and public safety (both mine and tourists),  I said fair enough and figured I would read House Bill 63 myself to see how it alleviated this reprehensible handbill problem that is endangering the lives of citizens state wide.

Protecting Tourists or Corporate Profits?

The first thing that caught my eye was that the bill was titled the “Tourist Safety Act of 2011.” The only problem was that the bill does not mention the word tourist one more time in the entire text of the bill (or even the words traveler or visitor). Nor does the bill even create any new penalties if the victim was a tourist, or create any new crime for targeting a tourist. Strange I said, how can you have a Tourist Safety Act of 2011 without at least enacting something to make tourists safe.

Rather, the only notable changes to the previously enacted version of the bill is that it increases the fines that “must” be imposed to $1,000 on a first conviction, $2,000 in a second, and $3,000 in a third.

The kicker though is that upon a third conviction, law enforcement can seize “any” property that is involved in the nefarious handbill distribution racket. Really what it means is that Disney can try to get law enforcement to do their dirty work and seize  some mom-and-pop small business’s vehicle, printers, property to try and force them out of business for even daring to divert a dollar away from the Disney empire.

I could not imagine why any self respecting politician would file a bill titled “Tourist Safety Act” that has nothing to with tourist safety. But then I remembered that I am dealing with a politician whose primary donors are probably Disney and resort properties.

So if you are trying to get others to vote for a bill that does nothing but support corporate business interests, what better way to trick your fellow legislators into voting for a bill without actually reading it than to name it the “Tourist Safety Act of 2011” – I mean who would vote against Tourist Safety?

Handbills and Handguns?

But even more bizarre, Section 5 of the bill throws in some mumbo jumbo about protecting gun rights. What in the world does illegal handbill distribution have to do with the protection of gun ownership rights.

Section 5 reads. “This act does not affect or impede the provisions of s. 790.251, Florida Statutes, or any other protection or right guaranteed by the Second Amendment to the United States Constitution”

I think we all know that the Second Amendment of the United States Constitution protects the “right of the people to keep and bear arms.”

But many might not be familiar with F.S. 790.251, which is known as the “Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008.” As you can imagine, the statute insures that not only can you keep an AK47 in your home, but also in your car while at work.

The addition of this language is concerning for no other reason that there is no logical purpose for its inclusion in the bill  unless you hope to show your “constituents” that while you believe that teenagers should be fined thousands of dollars for passing out pizza flyers, you also believe those same “criminals” should be able to bring their guns with them while they are doing so.

That does not promote Tourist Safety, it discourages it.

Nothing to do with Tourist Safety

Bottom line is that the “Tourist Safety Act of 2011” (Title of HB 63) has nothing to do with the safety of tourists.

Rather, its sole purpose and only affect will be to protect the most minuscule of corporate profits, punish local small businesses, and somehow insure that accused pizza flyer passer outer types do not lose their right to bear arms.

This bill is plain stupid.

$583.73 – in the legal profession it is not a whole lot of money to be charged for “legal work.” In relationship to the Casey Anthony case, it is less than 1/4 of 1 percent of the $250,000 Jose Baez received from ABC and other sources.

But it is the requirement to pay the attorney’s fees (really a fine) of the State Attorney’s Office that highlights my biggest “beef” with the Casey Anthony defense team – both the “inexperienced” members and the “over the hill” members.

Specifically, they have repeatedly elected to create judicial theater to the detriment of their client; and while such antics may make for great news at 6 – they also make for very bad legal precedent for the rest of us practicing attorneys.

If you think the fine is improper or not warranted – stop whining, stop writing letters throwing your co-counsel under the bus, and stop making bad legal arguments. Instead either suck it up or appeal. In this case, the order to pay attorney’s fees, while warranted, appears to be illegally assessed – so appeal. If you don’t, it creates bad precedent for the rest of us.

Philosophical versus Professional Opinion

This brings me to the reasoning of fining Jose Baez $583.73 versus the legality of fining Jose Baez $583.73. While it might have been right, it was wrong.

From a philosophical stand point, I understand where Judge Perry is coming from. He is dealing with a defense team that has had one constant – Jose Baez.

And with Jose Baez at the helm for the past two years, the defense team has spent over a quarter of a million dollars – with absolutely nothing to show. It has inundated the Court with a multitude of motions – the majority of which have little to do with the actual substantive issues in their client’s case. It has now spent nearly $50,000 of the State of Florida’s money with little actual progress to show. And probably most important to Judge Perry, it has wasted, in the middle of a State budget crisis, the time of a large number of public employees.

And so, if this was the reason that Judge Perry finally dropped the hammer and fined Jose Baez – I completely understand.

Unfortunately though, Jose Baez is not the first attorney to cause needless delays, file meaningless motions, and in general show himself to be ineffective. This is a trait that has been shared by numerous prosecutors and defense attorneys over the years – and the issue of fining such ineffective attorneys has been litigated before.

This brings me to my professional opinion – from a professional standpoint Judge Perry’s order to pay the State’s attorney fees is clearly prohibited by existing case law. Specifically, absent statutory authority, a trial court has no legal authority to require either a prosecutor or a defense attorney to pay “attorney fees” or “court costs” to the other side or to the court. See State v. Nelson, 27 So. 3d 758 (Fla. 3d DCA 2010) (“The trial court does not have inherent authority to assess costs against the State Attorney’s Office in criminal cases.”); Williams v. State, 596 So. 2d 758 (Fla. 5th DCA 1992) (“It is well established that a court lacks the power to impose costs in a criminal case unless specifically authorized by statute;” dealing with circuit wide practice of fining defendants for wasting judicial resources by waiting until day of trial to plea.).

If Judge Perry wanted to legally fine Jose Baez, he would have had to hold him in contempt and hold a contempt hearing. See State v. Shelton, 584 So. 2d 1118 (Fla. 5th DCA 1991) (“Only through the use of criminal contempt procedures, direct or indirect, can a trial court assess fines or costs against an attorney in a criminal case.”). However Judge Perry specifically stated that he was not finding Jose Baez in contempt – for now. Thus his order requiring Jose Baez to pay the State Attorney’s office $583.73 was illegal.

Regardless, even if Judge Perry would have held a contempt proceeding, the proceeding carries many more protections and is much more involved than the hearing Judge Perry held.

Which brings me to a convergence of both my Philosophical and Professional opinions regarding the reasoning behind Judge Perry’s original order requiring the Defense to not only list their experts and their area of expertise; but also requiring them to state exactly what the experts would say. He premised this requirement on the general theory of litigation in Florida criminal cases that we do not engage in “trial by ambush.”

This is true and this is also the reason that Florida allows for depositions in criminal cases – so that both the Defense and State can “discover” what the other side’s witnesses will say. A Party can either take advantage of the opportunity to depose someone and thus avoid the “surprise” of what the witness has to say; or they can decline to depose the witness and risk being surprised by what the witness will say.

In Jose Baez’s case, I suspect that Judge Perry originally did not intend for his order to be so far sweeping as Jeff Ashton believed. However I have little doubt that the immature, if not childish, manner in which Jose Baez responded to the order is what pushed Judge Perry over the edge (in context of the entire case especially) and caused him to require such specific disclosures in ADVANCE of the deposition where in reality; our discovery system is set up so that Jeff Ashton can find out what the experts know at the deposition.

And so maybe Jose Baez was wrong in the way he responded to Judge Perry’s expert discovery order. But Judge Perry was wrong for requiring Jose Baez to pay the State Attorney’s Office attorneys fees of $583.73. Either Jose Baez’s conduct was contemptuous or it was not; but if Jose Baez’s response was wrong, but not contemptuous – it does not justify requiring him to pay the State’s “attorney’s fees” in violation of clearly established case law.

But more problematic for attorneys like me, Judge Perry’s fine sets a precedent for other Judges in the circuit.  And if it is believed it is okay to fine Jose Baez without finding him in contempt, what is to stop them from fining me any other attorney whose response to a Discovery Order is not believed to be in “substantial compliance.”

And that, ultimately, is what is wrong with this case and the fine: Two Wrongs Don’t Make a Right – just bad precedent for the rest of us.

When people ask me what I believe is the biggest problem with the United States Criminal Justice System, I always state that our society is to quick to want to charge someone with a crime and that most people charged with a crime are over-charged.

An example of this excess can be found in the fact that the State of Florida alone has managed to criminalize over 7,000 individual activities. And this number does not include municipal violations criminalized by individual municipalities.

Which brings me to the most recent news story that caused me to post my concern. While reading CNN, I came across the story: 16-year-old catcher collapses, dies after pitch hits chest protector.

While a tragic story, the headline pretty much told the story. A 16 year old was catching for a pitcher and was struck in the catcher’s protector plate by a pitch. Unfortunately this resulted in a freak accident which caused the child to die. The first thing that came to my mind was sympathy for the child’s parents, for the loss they suffered, for the sorrow of the child’s teammates.

But what was one of the first thing authorities considered? That a crime had occurred. For some reason, Police Capt. Heriberto Rodriguez felt it necessary to dispel concerns that the freak accident was actually a criminal assault by the pitcher when he said “We don’t see anything remotely illegal on this.”

My question is who thought something illegal occurred? Why did the news even think to inquire if a crime were possible. Why the first quarter of the article, which should have just been about the boy’s life and the strange nature of his passing, dealt with the possibility of a criminal act is beyond me.

And that goes to the root of our problem as a society, we have become a society that looks to prosecute someone regardless of intent or culpability, a society who must have someone to blame, even if there is no one to blame.

That is our society’s mentality, The Criminal Mentality.

In an interesting twist, the Fourth District Court of Appeals issued Bent v. Sun-Sentinel (PDF), which held that an accused inmate’s phone conversations were not “public records” within the meaning of Florida’s public records law, and thus were not subject to being released to the media.

Far Reaching Implications

This ruling obviously has very far reaching implications, as in addition to her jail-house telephone calls and video visitation,  its reasoning applies equally as well to Casey’s written letters, if obtained and copied by corrections. However, I do not think it applies to the jail’s visitor log, but as I explain below, I think they have a legitimate argument that it does.

No More Excuses?

What this obviously means for Casey Anthony is that she no longer has a legitimate excuse not to see or speak with her parents, as the ruling’s holding would apply to both video and audio recordings. Or would she?

What will remain to be seen is whether this ruling would prohibit the State Attorney’s Office, as opposed to the jail, from releasing the recordings in discovery.

The Practical Fall Out

The practical application of this ruling is that the ability of the State Attorney to release the information will depend on whether the recordings were turned over to the State and the State then decided that they might possibly use the recordings as evidence.

I believe that the State’s ability to release the tapes would depend on whether the recordings realistically held any evidentiary value. For example, if it is just Casey chatting with a friend who is uninvolved with the case, the recordings would not be subject to release.

On the other hand, if it was a recording of Casey talking to a witness in the case, say her mother or father, it might be subject to release if the recording held potential evidentiary use at trial. If the recording was of no evidentiary value, the recording would not be subject to release not withstanding that the person whom Casey was speaking to was a witness in the case.

A Big IF

More than likely what will happen is that Judge Perry would have to make a case-by-case decision on whether to release recordings the State obtained from the jail – IF Casey were to resume contact with her parents.

Expect a Renewed Argument

So expect the defense to file a Motion first thing next week to enforce the Bent v. Sun-Sentinel ruling in Casey’s case.

But also expect the defense to grasp on to the below underlined language from the Bent v. Sun-Sentinel case:

The expectation that a deputy or state attorney may listen to a call is very different from an expectation that anyone and everyone could listen to the calls. Sensitive or embarrassing information, or information that would otherwise be confidential, like financial information of the inmate or the person called, could be disclosed to the public. Treating the recordings as public records allows anyone to request the recorded calls. Moreover, an accused child should be able to consult with a parent without the communication becoming a public record.

Well it looks like somebody got caught with their hand in the cookie jar while I was away, as our good friend Jose Baez filed an eight paragraph Motion for Protective Order Regarding a Telephone Recording of Robin Lunceford.

And since I had nothing better to do after a week long vacation, I thought it would be nice to annotate and analyze the eight paragraph motion for my unfaithful readers to help them understand what really transpired between Jose Baez and Robin Lunceford.

Annotations of the Motion

Paragraph 1:

He received a phone call from an ex-inmate who stated she had a friend who conspired with Maya Derkovic to create a lie to possibly benefit from her knowing Casey Anthony at the Orange County Jail. The unknown caller informed the undersigned that she would be calling later that evening.

Basically, Jose received a phone call saying a current inmate would be calling him (collect most likely) that evening with information about Maya Derkovic. (Jose likely soiled his underwear from sheer excitement.)

Paragraph 2:

Shortly thereafter, the undersigned counsel was advised by his secretary after hours, that Robin Lunceford was attempting to reach him. The case was transferred to the undersigned counsel cell phone, upon which a conversation with the prospective witness occurred.

Considering Jose failed to list his secretary’s name and I don’t know any secretary who works after hours, I suspect what really happened is that when Robin Lunceford called, his after-hours answering service answered (almost every solo lawyer uses one – I use a company called Signius) and forwarded the call to him. (Personally, for Jose, I hope my suspicion is incorrect, because lack of candor with judges and misrepresentation are big no-no’s for lawyers.)

Paragraph 3:

While it became known that Robin Lunceford was calling from a corrections Institution, the undersigned counsel was never made aware that the call was being recorded by either Robin Lunceford or the standard recording that is usually played when receiving a call from a Correctional Institution.

Even though he admits to knowing the phone call was from an incarcerated prisoner, he claims ignorance it could be recorded because he never heard the “standard recording” telling the recipient the call originated from a prison and was subject to being recorded.

Well duh! His answering service – cough, cough – I mean secretary heard the “standard recording” before forwarding it to him (How else could she have answered). And the secretary’s knowledge of the recording would be imputed to him.

It is also possible that a Three-Way call was initiated by Robin Lunceford, but since Jose admits to knowing the call originated from a prisoner, he still lacks a reasonable expectation of privacy.

Paragraph 4:

As the Court may already be aware, all calls are not recorded when coming from a Correction Institution. Many times inmates have access to telephones specifically designed for contact with attorneys and sometimes counselors allow inmates to make non-recorded calls, and on certain occasions, inmates obtain contraband cell phones.

Well looky here, there happens to be a Florida regulation that specifically regulates the circumstances by which a State Prisoner (as opposed to a person housed in a county jail) can use the telephone. See Florida Administrative Code 33-602.205 “Inmate Telephone Use” This regulation states that all calls will be monitored. And while there is an exception for calls to attorneys, the exception does not apply to Jose Baez per subsection (3).

With that said, it is true that I too have received phone calls from inmates using the chaplain’s office, only come those call have come from inmates in a county jail – never in a prison

Paragraph 5:

Among other topics discussed the undersigned was made aware that Robin Lunceford along with Maya Derkovic conspired with Robin Adams to possibly benefit by lying to the State about Casey Anthony. Maya Derkovic’s apparent motivation was to receive a transfer to another institution for her information. Subsequent to this conversation Maya Derkovic was transferred to another correctional institution in Broward County.

Again, DUH! Apparently he did not read my blog posts. (See An Open Letter to Web Sleuthers Everywhere… and Of Rats and Women)

Paragraph 6:

The Defense has just been advised by Assistant State Attorney, Linda Drane Burdick that the State intends to release a recording of this telephone conversation in discovery.

Oh what a tangled web we weave, When first we practise to deceive! More contemporarily quoted as Oh Sh!t. (Jose likely soiled his underwear from sheer fear of what he said on the tape.)

Paragraph 7:

The Defense contends that this conversation is not only protected by the work product doctrine it further argues that it would be a third degree felony pursuant to 934.06.

See below: “Analysis: Work Product.”

Paragraph 8:

The undersigned requests that the State not listen to the illegally recorded statements as the use and disclosure of the unlawfully intercepted conversation would be a third degree felony pursuant to F.S. 934.03. Additionally, F.S. 934.06 specifically states “Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived there from may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the state, or a political subdivision thereof, if the disclosure of that information would be in violation of this chapter.

See below: Analysis: F.S. 934.06 “Interception and Disclosure of Oral Communications Prohibited.”

Analysis: Work Product

Our good friend Jose Baez first seeks the court’s protection from the disclosure by the State of the recording between him and Robin Lunceford by claiming the conversation was “Work Product.”

The discoverability of Work Product information is addressed in Florida Rule of Criminal Procedure 3.220(g)(1) (Titled Work Product), which states: “Disclosure shall not be required of legal research or of records, correspondence, reports, or memoranda to the extent that they contain the opinions, theories, or conclusions of the prosecuting or defense attorney or members of their legal staffs.”

Arguably, a taped conversation between Jose Baez and Robin Lunceford could constitute “record or correspondence.” But to understand if the Work Product “privilege” applies to Jose Baez’s conversation with Robin Lunceford, it is important to understand the policy reasons behind protecting Work Product of lawyers.

And interestingly enough, none other than Justice Thomas D. Sawaya, a judge who sits on the Fifth District Court of Appeals (the court that will handle any appeal related to the Casey Anthony case) wrote the leading primer on the Work Product privilege in Florida, titled appropriately enough: “The Work Product Privilege in a Nutshell” The Florida Bar 67-AUG Fla. B.J. 32 (1993).

The article states that “the primary policy objective of the work-product doctrine is to preserve the effective assistance of attorneys and others employed to help prepare a case for trial. By maintaining the privacy of communications between client, attorney, and others employed in preparing for litigation—especially privacy in the development of legal theories, opinions, and strategies-the doctrine fosters the effectiveness of legal assistance upon which our adversarial system of justice depends.”

However, the article goes on to point out that “voluntary disclosure of privileged matter to a third party generally waives the privilege.”

What this means is that communications between the client, attorney, and others employed in preparing for litigation are privileged as Work Product, however the privilege does not apply to communications with people not employed in preparing for litigation – i.e. Robin Lunceford or maybe even an after-hours answering service?

So it seems clear that the Work Product argument advanced by Jose Baez was simply a shot in the dark with no legal basis.

Analysis: F.S. 934.06 “Interception and Disclosure of Oral Communications Prohibited.”

For those of you unfamiliar with Section 934.06, Florida Statutes, it basically says that any surreptitious recording of a conversation obtained in violation of Section 934.03, Florida Statutes, cannot be used in any legal proceeding.

Section 934.03 then goes on to list a series of circumstances under which the “Oral Communication” of a person can or cannot be surreptitiously recorded. However these circumstances are only looked to once it is determined that the communication is an “Oral Communication” as defined by Section 934.02, Florida Statutes.

Section 934.02(2) defines an Oral Communication as “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.”

Chapter 934 (Florida Wiretapping Act) codifies Article 1, Section 12 of the Florida Constitution, which states:

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated.

…

This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court.

Articles or information obtained in violation of this right shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the 4th Amendment to the United States Constitution.

And as you can imagine, the Florida Supreme Court has had many opportunities to interpret Article 1, Section 12, Chapter 934, and the Fourth Amendment and have concluded that “under both the Fourth Amendment and the Florida wiretapping act [1] a speaker must have an actual subjective expectation of privacy and [2] our society must recognize that the expectation is reasonable for the oral conversation to be protected.” See Jackson v. State, 18 So. 3d 1016, 1030 (Fla. 2009).

With this as our starting point lets examine Jose Baez’s situation.

Did Jose Have an Actual Subjective Expectation of Privacy?

Even if were true that Jose Baez was never made aware that he was being recorded, the real question is whether he had an actual subjective expectation of privacy.

Considering that Jose Baez is a lawyer and he does not dispute he knew that Robin Lunceford was calling him from prison, it would defy logic for him to reasonably believe that any conversation with a person in a Florida state prison was not being recorded.

Moreover, even if we were to realistically believe she called him from a contraband cellular phone (this is the last thing I would ever assume), he should know that her doing so constitutes a crime on her part. Thus any recording made of her when committing this crime is not protected under Chapter 934.

A more likely scenario though is that she called him three-way and this is why neither his secretary, nor he heard the “standard recording” informing him he was being recorded.

However, because he is a lawyer, he should “subjectively” know that this is the most likely way he was called and should know that there was a third person on the line – thus he had no expectation of privacy between himself and Robin Lunceford.

Finally, even if we were to believe that Jose Baez “personally” never heard any “Standard Recording” the real question is whether the person who answered the phone call originally i.e. his “secretary” heard the recording. If she did, but failed to advise him of this, he cannot be heard to complain because his assertion of the Work Product privilege imputes her knowledge of the circumstances of the call to him. (Ain’t life a bitch.)

And this is why I think he so vaguely drafted his motion as to what he “personally” heard or knew. Because chances are the person who answered the call heard the “Standard Recording” – but just didn’t tell poor old Jose.

Even if there was an Expectation of Privacy, Does Our Society Recognize it as Reasonable?

Even assuming that Jose Baez had a subjective reasonable expectation of privacy, the real question is whether our society is prepared to recognize his expectation as reasonable considering he was talking to a person whom he knew was a convicted felon, in prison, and who was not his client.

Unfortunately for Jose Baez, the Florida Supreme Court has addressed this issue time and time again; and each time they have specifically held that “society would insist that the prisoner’s expectation of privacy always yield to what must be considered the paramount interest in institutional security.” State v. Smith, 641 So. 2d 849 (Fla. 1994);  See Jackson v. State, 18 So. 3d 1016, 1030 (Fla. 2009) (“The interest in institutional security allows jailhouse conversations to be monitored.”). See also McWatters v. State, (Fla. 2010) (An inmate has no reasonable expectation of privacy in a telephone communication from jail where the inmate is warned that all calls are monitored or recorded.) (For those of you paying attention, McWatters is also the case I cited in “911, What’s Your Emergency?” and the case Chief Judge Perry specifically cited in admitting two of the three 911 calls, Déjà vu.)

So no, our society would not be willing to recognize Jose Baez’s claimed “subjective expectation of privacy” as reasonable. As a result he is not entitled to have the court grant his protective order and prevent the State from releasing the taped conversation.

Ironically though, even if Ninth Judicial Circuit Chief Judge Perry were to throw Jose Baez a bone and grant him some relief, Judge Perry does not have jurisdiction over the Lowell County Annex located in Marion County of the Fifth Judicial Circuit.

Thus a public records request there would require the Lowell County Annex to release any phone calls of Robin J. Lunceford from May of 2010. (hint, hint)

Decency: A person’s ability to conform to standards of propriety, good taste, and morality.

Many of you may have heard about the plight of Edwin McFarlane. He is the 14 year-old boy who helped a lost three year-old girl find her mother at a Burlington Coat Factory store.

But somehow the Orange County Sheriff’s Office got involved and arrested Edwin for False Imprisonment. The facts that they arrested him on are not in dispute, as the beginning and end of the entire episode was caught on Burlington Coat Factory’s surveillance video. When combined with the undisputed witness statements, here is what happened.

Edwin and his mother drove from Lake County to buy some clothes at a Burlington Coat Factory in West Orange County. After entering the store Edwin saw that the three year-old looked lost (because she was). Edwin remembered seeing three women walk outside and thinking one of them was the child’s mother, he offered to accompany her outside to reunite her with her mother.

Approximately a minute later you see the child’s mother go outside, see her daughter, and bring her back in. Edwin walks in shortly after, meets up with his mom, and they continue shopping. End of story, right?

Wrong. The Orange County Sheriff’s Office was called during the commotion. So once they arrived, they detained Edwin (who was still shopping) and then “investigated” the call by watching the surveillance video and speaking to all of the witnesses.

One would think they would commend Edwin for doing a good deed, but instead they managed to determine “there is PROBABLE CAUSE to arrest Mr. Edwin McFarlane for False Imprisonment.” (The detective’s all-cap emphasis, not mine.)

The next think Edwin knows, he is handcuffed and paraded before a swarming media looking as if he had just surrendered to the SWAT team after a 24-hour standoff. (Did I mention Edwin was 14 years old, shopping at Burlington Coat Factory with his mother?)

Very quickly it became clear to almost every major media outlet that not only was no crime committed, but that the child was likely the victim of a “mistaken arrest.” A chorus of public sentiment erupted for Orange County Sheriff Jerry L. Demings to request an Administrative Expunction on behalf of Edwin. Sheriff Demings’ response? He defends the arrest.

Enter WFTV’s crack(pot) reporter Kathi Belich and her sidekick, “legal expert” Bill Sheaffer.

The day before the first status hearing in the case, WFTV reports to have learned “Edwin McFarlane failed a lie detector test and that he’s been disciplined by the Lake County School District for sexually charged conduct, which some say should have been reported to law enforcement.” (WFTV Learns Arrested 14-Year-Old Failed Lie Detector Test.)

Now this whole report is based on an interview between Belich and Sheaffer, where Belich desperately suggests that Edwin is a budding sexual predator to Sheaffer based upon leaked school disciplinary records and an alleged failed lie detector test. (Raw Video: BILL SHEAFFER: Analysis of New Info About Arrested Teen.)

Sheaffer’s response? He launches into a defense of law enforcement by referring to this leaked information as “facts we now have learned” (his description, not mine) and validates the actions taken by the Orange County Sheriff’s Office. WFTV then quotes him as saying “we cannot dispute there was probable cause to arrest him and we wouldn’t be having this conversation if he were an adult.”

Actually Bill, we can dispute that there was probable cause. Because even if Edwin had been an adult (meaning he was old enough to drive, vote, serve in the military, and sign a legal document) the law regarding probable cause is the same.

You see, “probable cause exists when the totality of circumstances demonstrates that a prudent officer would believe a person has committed a crime.” Kuehl v. Burtis, 173 F. 3d 646 (U.S. 8th Cir. 1999). And “an officer contemplating an arrest is not free to disregard plainly exculpatory evidence.” Id. Moreover, “law enforcement officers have a duty to conduct a reasonably thorough investigation prior to arresting a suspect.” Id.

But most important to Edwin’s case, is that probable cause to arrest someone is determined based upon the information in law enforcement’s possession at the precise time the person is arrested. See Sibron v. New York, 392 US 40 (1968) (Officer could not seize someone without probable cause and justify seizure after-the-fact because heroin was ultimately found.) This means you cannot arrest someone on a hunch and then justify the arrest simply because you found incriminating evidence after the fact.

What this means in Edwin’s case is that Bill Sheaffer’s legal analysis is completely wrong. The rumors of disciplinary conduct or his failing a lie detector test have absolutely no relevancy to whether there was probable cause to arrest Edwin; because that information (if true) was not obtained until AFTER Edwin was arrested.

When the Story is More Important than the Law

And while we are on the topic of the law, I think we should discuss the leaked educational records that Belich and Sheaffer mention so gratuitously. Interestingly, all educational records in Florida, including disciplinary reports are confidential under Florida Public Records law. See F.S. 1002.221, which incorporate by reference 20 U.S.C. s. 1232g.

The only exception would be if the alleged victim made an independent report to law enforcement outside of school (since the school apparently took no action). But based upon Belich and Sheaffer’s discussion, it is clear that the disciplinary allegations were not reported to law enforcement.

So this begs the question? Why aren’t Belich and Sheaffer concerned in the least bit with this obvious violation of Florida law and intrusion into a 14 year-old’s privacy. Because all they care about is the story, 14 year-olds be dammed.

Polygraph This!

And then there is the polygraph test that Belich refers to like a Parrot on cocaine. I will begin by pointing out that it was proven that Belich was completely wrong because the Orange County Sheriff’s Office does not even use a polygraph test, they use what is called a “Voice Stress Test” which is about as reliable as “flipping a coin.” (Orlando Sentinel: Claim that 14-year-old failed lie detector is bogus.)

But even if they had used a Polygraph, Sheaffer’s assertion that a polygraph has some legal significance is ludicrous.

First and foremost, polygraph results have been inadmissible in Florida courts for the last 60 years. See McKenzie v. State, 653 So. 2d 395 (Fla. 4 DCA 1995). And since we have already established that Edwin was arrested before the Voice Stress Test was administered, it would have no bearing on determining whether there was probable cause to arrest. Rather, the results were released solely to taint public perception of Edwin and (hopefully) the judge’s independent analysis of the case if it were to proceed to trial.

Second, polygraphs are not considered reliable when administered to juveniles because many experts believe that a juvenile’s lack of attention span and unfamiliarity with the concept of a crime (versus bad judgment) makes them unreliable in detecting deceptive responses in juveniles – especially in juveniles under 14. (See “Survey Regarding Testing of Juveniles by Law Enforcement.”)

Decency?

Having thoroughly examined Belich and Sheaffer’s interview and resulting story, it is clear that the two of them single handedly turned public perception of Edwin McFarlane from that of a Good Samaritan who was falsely arrested, to that of a sexual predator who prays on little girls.

And based on what evidence? Not a single police report, not one witness has come forward. Based completely off of complaints found within a 14 yerar-old’s school records. Complaints apparently so unfounded that they were not even acted upon by school administrators.

And this is interesting, because you may remember a man by the name of Roy Kronk. He is the meter reader in the Casey Anthony case who the defense team has attacked with accusations of past misconduct and supported with actual affidavits from his wife. He is the person who actually had a police report filed against him by his wife.

How did Belich and Sheaffer respond to the defense team’s actions?

Well Belich featured Sheaffer in her story lambasting the defense’s accusations and Sheaffer stated he “deemed these tactics as despicable.” And went so far as to warn the defense against repeating the “unsubstantiated allegations [] outside of court, [because] they could be sued.” (WFTV: Casey’s Defense Interviews Kronk’s Ex-Wives).

But Mr. Sheaffer was not done, apparently he was so appalled he penned a blog post titled Does Casey’s Defense Have No Sense Of Decency? and claims “people are angry that these lawyers would drag this man through the mud and find this tactic appalling in its manner and approach. One expects a vigorous defense from an attorney, but not at the expense of an innocent witness in the case.”

Well Mr. Sheaffer, I too am angry. I am angry that you and Kathi Belich have needlessly dragged Edwin McFarlane’s name through the mud based upon unsubstantiated allegations apparently found in a child’s educational records that are supposed to be confidential under Florida law.

You then allowed Kathi Belich to repeatedly imply that this child was some type of sexual predator who had committed lewd acts on other children.

Well let me warn you Mr. Sheaffer, your legal analysis is not afforded the same type of qualified protection that allegations made in court filings are. Your analysis was not only wrong; it was made with reckless disregard for a 14 year-old child’s life and reputation.

I can only hope that Edwin’s mother finds a qualified civil attorney and not only sues law enforcement for violation of her child’s civil rights, but then sues you and Belich for defamation.

In your own words Mr. Sheaffer:

As an officer of the court, have you no sense of decency? Stop these tactics. Our system of justice, its participants and the rest of the citizens observing Edwin’s case deserve better.