West Palm Beach Criminal Lawyer Blog : Ronald Chapman: West Palm Beach Criminal Lawyer | Florida Criminal Attorney: DUI, Assault & Battery, Felonies | Criminal Law Firm

          According to Florida law, a person cannot be arrested for using force--even deadly force--unless the police first determine that there is probable cause to believe that the force used was unlawful.  But what happens in those situations in which the police believe that the force used was unlawful?  Are the police allowed to actually state their belief to a jury at the person's trial?  According to Florida's First District Court of Appeal, the answer is no. 

          In the case of Bartlett v. State of Florida, Laurie Lynn Bartlett was charged with second-degree murder for killing her boyfriend with a knife.  At her trial, the lead detective was allowed to testify that before he arrested Ms. Bartlett, he ruled out the possibility that she stabbed her boyfriend in self-defense.  Bartlett was ultimately convicted of manslaughter and sentenced to ten years in prison.

          Bartlett appealed her conviction arguing that the detective should not have been allowed to express his belief to the jury that she did not act in self-defense.  The appellate court agreed and reversed her conviction.  The court stated that although Florida law requires the police to decide whether the force used by someone was unlawful before arresting that person, the police are not allowed to testify about that finding to a jury precisely because the final decision as to whether someone acted in self-defense is to be made by a jury, not by the police.  As the court of appeals stated, "[B]y allowing the [prosecutor's] questions and [the detective's] detailed answers on a matter within the realm of an ordinary juror's knowledge and understanding, the trial [judge] improperly invaded the province of the jury as the fact-finder and allowed the detective to serve as a fact-finder . . . by determining that self-defense was not a viable defense for [Bartlett]." 

          The appellate court went on to state that although the detective was allowed to testify about what he actually saw when he arrived at the scene of the stabbing (for example, a knife, blood, the boyfriend's wounds), he should not have been allowed to express his opinion about whether Bartlett stabbed her boyfriend in self-defense.  That particular issue was for the jury--and the jury alone--to decide.

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          It seems that the thorny issue of where registered sex offenders should be allowed to live just won't go away.  In 2007, I wrote an article entitled "Sex Offenders:  Where Can They Live?," and in 2008 I wrote an article entitled "Where Can You Live in Florida if You Are a Registered Sex Offender?"  Palm Beach Post staff writer John Lantigua has now written an article entitled "Registered sex offenders:  Where can they live?"

          In his article, Mr. Lantigua reports that just last week the American Civil Liberties Union of Florida sued Miami-Dade County over an ordinance that prohibits individuals convicted of sex crimes involving minors from living within 2,500 feet of such places as schools, playgrounds, and school bus stops.  According to the article, however, the ACLU is not suing out of a concern for the safety of those sex offenders living under a bridge but rather out of a concern for the safety of the general public.

          In that regard, the executive director of the ACLU of Florida is quoted as saying that "[p]eople have to realize that making them live under that bridge has created a more dangerous situation.  Because of the conditions, some of these individuals are absconding, evading supervision.  These ordinances interfere with the Department of Corrections' ability to keep track of them.  This is a crisis situation."

          Apparently, the Florida Department of Corrections--the agency in charge of supervising sex offenders--agrees.  A spokesperson for that agency is quoted as saying that "[o]ur concern is for public safety.  If they are homeless there is more of a chance they will abscond.  There are already 91 homeless offenders around the state, mostly in South Florida, and the problem is getting bigger."

          When two unlikely bedfellows such as the ACLU and the Florida Department of Corrections agree on something as serious as where registered sex offenders should be allowed to live, perhaps it's time to change the law.

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          Earlier this week, Palm Beach Post writer Susan Spencer-Wendel wrote an article entitled "She's guilty of murder, but shooter's free" in which she recounted how a young woman named Ashley Ramirez was convicted of robbery and first-degree murder with a firearm even though the jury who decided her case found that she did fire the gun that killed the victim nor did she even possess it.  Following the verdict, Ms. Ramirez repeatedly asked the judge how she could be convicted of murder even though she wasn't the one who shot the victim.

           Ms. Ramirez' question is one that is frequently asked in varying forms by people who are accused of committing crimes along with others.  For example, a person who is accused of trafficking in cocaine may wonder why he was charged even though it was his co-defendant who actually delivered the cocaine to the undercover police officer.  Or, to use another example, someone who is charged with theft may wonder why she was charged even though it was her co-defendant who actually stole the merchandise.

          The answer is that the people in these examples are being charged as principals.  According to this legal tenet, if someone helps another person commit a crime (or even attempt to commit a crime), the former individual is a principal and must be treated as if he did all the things the other person did if two conditions are met:

          1.  He had a conscious intent that a crime be committed; and

          2.  He "did some act or said some word which was intended to and which did incite, cause, encourage, assist or advise the other person" to actually commit or attempt to commit a crime.

           In addition, someone who is charged as a principal does not even have to be physically present when the crime is committed.

          It is because of the principal theory that Ashley Ramirez can be convicted of murder and robbery even though the jury found that she was not the one who actually killed and robbed the victim and even though the person who did actually kill and rob the victim has never been formally charged with doing so.

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          Yesterday, Palm Beach Post Capital Bureau writer Dara Kam wrote an article entitled "Lantana mother of sex-abuse victim joins fight against molesters."  In her article, Ms. Kam recounted the case of a man who was repeatedly molested when he was a young boy but who waited until after the statute of limitations expired to report the crime.  He later committed suicide.  The man's mother is now working on a ballot initiative to amend Florida's constitution so that there is no statute of limitations for sex crimes.

          That sounds like a laudable goal until one realizes that some individuals who are accused of sex crimes are innocent.  For example, consider the case of Michael Feichin Hannon.  A ten-year-old girl named Una Hardester accused him of sexually assaulting her.  Prior to her making that accusation, her father had been convicted of assaulting Hannon's father.  Hannon himself was ultimately convicted and given a four-year suspended sentence for sexually assaulting Ms. Hardester.

          Some years later, Ms. Hardester recanted her accusation against Hannon and confessed that she had originally been motivated by revenge for her father's conviction.  The Irish Court of Criminal Appeal eventually issued Mr. Hannon a certificate of miscarriage of justice.

         With no statute of limitations in effect, baseless accusations such as Ms. Hardester's could be made decades after a sex crime was supposedly committed.  So what, you might ask.  Well, to answer that question, consider the following scenario:

          Suppose a woman in 2009 accuses a man of having molested her thirty years ago in August 1979.  The accused knows that he's innocent because he was bicycling throughout Europe with his college roommate during that same month.  Unfortunately for him, though, his roommate has since died and the airline that he used to fly to Europe went out of business years ago.  How exactly is that man supposed to prove his innocence?  His best evidence is gone forever through no fault of his own. 

          It is precisely because of situations such as this that courts and legislatures long ago realized the need for statutes of limitation.  Maybe we should reconsider trying to abolish them when it comes to sex crimes.

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          Do current immigration laws in the United States encourage one spouse to falsely accuse the other spouse of domestic violence?  This became an important question in a recent case of mine in which my client, who was a permanent legal resident of the United States, was accused by his wife of domestic battery. 

          My client and his wife were going through a divorce, and she was living in the U.S. illegally.  My client maintained that she was falsely accusing him of domestic battery so that she could become a legal resident of the United States.  With that thought in mind, I began researching the relationship between U.S. immigration laws and domestic violence.  What I discovered was eye opening.

          Federal law provides that battered spouses may petition the Attorney General for legal residency in the United States.  Moreover, if the battered spouse is divorced from the abusive spouse after filing the petition, the fact that a divorce occurred is not supposed to affect the approval of the petition.

          Federal law also provides for the issuance of what are called "U visas."  The purpose of this visa is to give victims of domestic violence temporary legal status and work eligibility in the United States for up to 4 years.  An application for the U visa is filed with Form I-918.  According to section 1.D. of Form I-918, "[a] Federal, State or local government official investigating or prosecuting a qualifying criminal activity [such as domestic violence] certifies . . . that you have been, you are being or you are likely to be helpful to the official in the investigation or prosecution of the criminal act of which you are a victim."  In other words, it is not enough for one spouse to simply accuse the other spouse of domestic violence;  the complaining spouse must actually file a formal complaint with the prosecuting authorities in order to potentially qualify for a U visa.

          Because federal law can provide a powerful motive for a spouse who is living illegally in the United States to falsely accuse the other spouse of domestic violence, it is essential to thoroughly explore that motive in cases of domestic battery.

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