Confusion reigns over Marsy’s Law: Critics and supporters agree it’s going to need more clarity

Killearn Estates residents in the northeast part of Tallahassee were concerned and confused about a news blackout regarding a death that closed down traffic in their neighborhood for several hours this past Saturday morning.

What was going on?

After an initial press release announced an accident had occurred, it took more than 48 hours before the police department released any details, saying only in a subsequent release that it was a traffic crash involving a pedestrian.

The press release also noted that because of Marsy’s Law, they were limited in the amount of information they could share with the public.

Six hours later, the agency followed up with a statement on its Facebook page, saying that they were receiving “numerous questions from the public regarding Marsy’s Law, and how it affects the information we can release.”

The statement elicited strong reactions from community members – both positively and negatively, and shined a light on the new state law approved by more than 61 percent of Floridians last November.

The fact is, supporters and critics of the victim rights measure known as Marsy’s Law don’t agree on much – but most appear to be on the same page when it comes to acknowledging that there remains a significant number of details in the measure that lack clear definition, and it will require some major tweaks if it’s going to work as intended.

Marsy’s Law in other states: Not a smooth transition

Florida was one of six states to pass a variation of Marsy’s Law in November, making a total of 11 states around the country who have passed its provisions.

The national movement has been led by tech billionaire Henry Nichols, who became an advocate for crime victims after his sister, UC-Santa Barbara student Marsalee “Marsy” Nicholas, was stalked and killed in 1983 by an ex-boyfriend.

As Henry Nichols describes on the Marsy’s Law website, the courts in California were not required at the time to notify the Nicholas’ family when the accused murdered was released on bail after the crime. A week later, Nichols and his mother were then confronted by the ex-boyfriend at a grocery store.

The Marsy’s Law for All Foundation poured in nearly $72 million nationwide to get the measure passed in the six states it was on the ballot last year, including more than $33 million in the Sunshine State, according to the state’s Division of Elections website.

But the transition hasn’t been so smooth in some of those other states, providing a cautionary tale for Florida lawmakers as they consider legislative improvements to the measure, which went into effect on January 8.

In Montana, the state Supreme Court threw out the measure in 2017, less than a year after 66 percent of voters approved it, saying the changes it made to beef up victims’ rights should have been submitted separately rather than in one bill.

In South Dakota, State Attorneys complained after the law was passed in 2016 that their offices were being overloaded with cases and they were short on staff to handle them.

That led the state’s GOP Speaker of the House at one point to call for its repeal, before ultimately working with Marsy’s Law advocates to put a revised version of the measure before voters last June, which was approved.

While the measure was supported by some state attorneys in Florida (such as Miami Dade’s Katherine Fernandez Rundle and Hillsborough County’s Andrew Warren), several others were outspoken in opposing it, and many remain convinced that the law wasn’t required to ensure that victims’ get proper redress through the state’s criminal justice system.

Confusion in Florida:  How to apply the law correctly.

“We didn’t need it at all, says Andy Thomas, a public defender in Florida’s 2^nd Judicial Circuit which includes Leon County. “Under the jurisdiction under (former State Attorney Willie) Meggs and under Mr. (Jack) Campbell, victims’ rights have been safeguarded to the point where it’s help up in court already. I’ve tried to negotiate cases in the past and they’ve said – not until we hear from the victim. We have to have the victims’ okay. So in plea negotiations, I know for a fact that they were following the Constitutional provisions in the original victims assistance amendment in this jurisdiction.”

Marsy Law supporters say that the issue was ripe to enshrine in the state Constitution — that victims are an integral part of entire criminal justice process.

A specific part of the new law which is creating confusion is in section five, which says the victim has the 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.

“No victim should be put in a situation – whether by the defendant or defense counsel – where they feel threatened, intimidated of revictimized,” says South Florida Democratic state Senator Lauren Book, who campaigned in support of the measure.

But that provision is already creating confusion with law enforcement, says Pinellas County Sheriff Bob Gualtieri, who supports the law.

“Apparently some agencies are taking the position now that any victim information whatsoever is confidential and they’re not releasing it,” he says. “That’s not the way I read it, and it’s not the way that we’re applying it.”

Gualtieri, speaking on behalf of the Florida Sheriffs Association, says that he believes that unless the victim requests that the information not be released, his agency and other law enforcement agencies are free to publish it. But others in law enforcement say the language isn’t clear.

Tallahassee attorney David Marsey represents the Florida Police Chiefs Association. He says the new amendment creates “a little bit of ambiguity,” specifically regarding Florida’s public records laws, and he wants more clarity about what information needs to be redacted when it comes to police reports.

“My association members have to navigate that balance between protecting victims’ rights to the letter and spirit of Marsy’s Law, while at the same time complying with Florida’s public records laws,” he says. “I look forward to the Legislature addressing some of these issues and providing some clarification which of course, once the Legislature does that, it will help ensure uniform application across the state.”

Barbara Petersen from the First Amendment Foundation also believes this provision needs to be fleshed out further. She says that there already are exemptions in public records laws when it comes to the victims of certain crimes, and that should be spelled out in a bill filed by the Legislature.

“If I’m the victim of somebody breaking into my car, it’s different from a domestic violence victim or sexual abuse victim,” she says. “There’s all sorts of crimes. Are they misdemeanors? Felonies?”

 Trying to provide clarity in the law

Senator Book is attempting to provide that clarity right now, in a bill that would include allowing the defense to file a motion to obtain any confidential information, upon showing to the judge, that it is necessary.

“We can treat victims with dignity and respect while still providing due process to defendants. The goals are not mutually exclusive,” she told the Phoenix in an email.

Regarding the confusion among law enforcement officials, Book agrees that there’s not a simple answer in every situation, but believes that items such as financial information, social media information, children’s names and schools would presumptively be protected unless law enforcement saw a need to use such information to catch or prosecute a defendant.

A survivor of childhood sexual abuse, Book has become a powerful champion for victims’ rights well before she was elected into the Legislature in 2016. She founded “Lauren’s Kids,” a nonprofit geared to prevent sexual abuse, in 2007, and was featured in a television ad last year advocating for the passage of Amendment 6, which was Marsy’s Law.

Another ambiguous part of the new law has to do with paying restitution to victims. Marsy’s Law refers to “full and timely restitution in each convicted offender for all losses suffered, both directly and indirectly.”

While direct costs like doctor bills are simple enough to detail, some in the justice system are worried about what indirect costs might constitute, specifically using the term “pain and suffering,” as ambiguous enough to create more litigation.

“Make no mistake about it, not all people who portray themselves to the criminal justice system as victims come with clean hands or pure hearts,” says State Attorney William Cervone of the Eighth Judicial Circuit. “I don’t think the criminal courts can be expected to be burdened with trying to resolve those issues that are traditionally part of the civil process.”

 Marsy’s Law already changing how public defenders work

Marsy’s Law is already changing how public defenders do their job. Last month, the First District Court of Appeal in Tallahassee issued an administrative order ruling that in criminal appeals, the court will now accept a request for extension before a court date of only 30 days, whereas it was previously 90 days.

“That’s going to create a bottleneck in appeals,” says Thomas.

One of the most controversial provisions in Marsy’s Law for public defenders brings is that the measures says that all state-level appeals and what’s called collateral attacks on any judgement must be complete within two years from the date of appeal in non-death penalty cases, and within five years in death penalty cases.

Attorney Gary David Beatty served as an assistant state attorney in Brevard County for 30 years before stepping down a few years ago. He says it’s important to have some finality to judgement in the system, for a variety of reasons.

“Memories fade, evidence disappears, and consequently you don’t always get the correct result,” he says.

Specifically, he says the biggest complaint that victims have regarding death penalty cases is how long it can take before a death row is sentenced and when his or her appeal process is completed. “That’s not right for victims.”

But Stacy Scott, a public defender in Florida’s Eighth Judicial Circuit, calls the expedited timeline for appeals a “game-changer,” saying that there aren’t enough assistant state attorneys and state public defenders right now to process cases in many jurisdictions, requiring them to regularly asking for extension on cases. She says that discovering that police or prosecutors destroy or hide evidence “just doesn’t pop up generally.”

In other states, public defender offices have had to beef up their staffs to handle the increased workload, but Florida’s Marsy’s Law did not include any funding for those offices.

Book disputes that the law is unambiguous regarding the timelines for appeals, saying that the language in question also says that any reasons for delays beyond those prescribed deadlines need to be reported to the Legislature.

“Are cases being delayed because trial judges are not issuing timely rulings? Are cases being delayed because appellate courts are not acting as promptly as they could?” she asks. “Information helps the legislature perform oversight and the state to see how efficiently we are processing cases.”

But what if the defendant has inadequate counsel? An attorney who was asleep in court or otherwise incompetent?

“Why would anyone argue that such a violation of the constitution should wait two years before being raised?” Book argues. “The defendant who had an ineffective attorney should get relief as soon as possible.”

No one disagrees with that thinking, but consider how it currently works. If a defendant makes what’s called a collateral attack alleging ineffective assistance of counsel, they don’t have an automatic right to an attorney.

A judge may, upon review, provide another attorney for the defendant.

If not, the defendants could potentially be reviewing court transcripts and doing other such legal work on their own, possibly inside a jail cell.

Critics say the new timelines will give them a much shorter time frame to prove ineffective counsel.

Another concern from supporters of the measure worry is that it could make life more onerous for victims, not easier. Take for instance, the measure that calls for the defendant to have the right to notice at all public proceedings involving the criminal conduct.

North Miami Beach Democratic state Senator Jason Pizzo is a former prosecutor who worked in the Miami-Dade State Attorney’s Office.

“It literally costs money to be a victim in Miami-Dade County,” he says about the inconvenience in coping with traffic and parking to get to courthouse in Miami. “You have to take a day off of work. Just to hear one thing on a judge’s calendar…you might wait 2.5 hours to hear something for 15 seconds.”

Marsy’s Law says that every victim is entitled to a series of rights, “beginning at the time of his or her victimization.”

The problem with that provision, State Attorney William Cervone says, is that’s much earlier than he’s ever aware that there’s a specific case going on. “Yet I’m going to be in a situation where defendants maybe having their initial court hearing, and I don’t have any reliable mechanism to try to implement notification of that hearing entitlement to make comment to the judge as to bond conditions.”

If the incident in Killearn Estates proves nothing else, it’s that the public is going to need to be educated about how the law works.

“The victim died so it is their family that is withholding their info? Is that how it works?” Tallahasee resident Keli Harwood wrote on the Tallahassee Police Department’s Facebook page.

“Just trying to understand this correctly, not going to lie, I was confused as was everyone else I asked about this law.”