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Criminal Justice

Comments and analysis about criminal justice agencies, actions, and trends.

R.I.P. William J. Sheaffer, Esq.

Nov 24th, 2009
by Richard Hornsby.
393 comments

I have been informed that Mr. Sheaffer is being given the option of either resigning from the Florida Association of Criminal Defense Lawyers or being expelled.

So I only have one question Mr. Sheaffer, was it worth it?

So I only have one question Mr. Sheaffer, was it worth it?

Was it worth sullying your reputation among every criminal defense lawyer in the state just so Kathy Belich could get a story? Was it worth having your claims of “professionalism” published on Mr. Boedeker’s blog on the same day you sold out an entire organization.

You may be an Internet sensation and a media darling, but you are a disgrace to your colleagues. Good job.

You may me an Internet sensation and a media darling, but you are a disgrace to your colleagues. Good job.

And for those that are interested, I did verify that Mr. Sheaffer lied to obtain the seminar materials. Apparently FACDL was concerned that the audio would be leaked, so they set up a system to stream the audio.

Mr. Sheaffer called FACDL headquarters and claimed he was having a hard time hearing the audio and would like to have a copy sent to him. He went so far as to say he needed it so that he could maintain his death penalty qualifications.

FACDL believed Mr. Sheaffer and sent him the audio as he requested – he immediately turned it over to Ms. Belich. The rest is history – just like his reputation among his colleagues.

The rest is history – just like his reputation among his colleagues.

As a side-note, I was informed that when this situation was brought to the attention of the News Director for WFTV-ABC, he was the consummate professional and removed all references at the request of FACDL. I would like to not only commend him for that, I would like to say thank you.

I would like to say thank you.

OMG! Bill – You did not do what I think you did?

Nov 24th, 2009
by Richard Hornsby.
235 comments

UPDATE: So I passed on my blog post to the powers that be over at FACDL this morning, and low and behold they apparently expressed their displeasure with WFTV-ABC for dishonestly obtaining and using their seminar materials.

Hal Boedeker apparently obtained this explanation from them:

“WFTV took down the story because the station said it had run its course and also as a courtesy to the Florida Association of Criminal Defense Lawyers. That group’s leader said the story compromises his ability to get attorneys to come to his seminars as presenters.”

Now, this is the only Casey Anthony story WFTV-ABC has ever completely removed from their website, so why, oh why, would the great Kathi Belich care what the president of the Florida Association of Criminal Defense Lawyers is concerned with – oh right, so Bill Sheaffer doesn’t get kicked out of the organization.

I must say that I received quite the response to my criticism of Mr. Sheaffer (In Defense of the Casey Anthony Defense). And if there is one thing I learned, it is that the purpose of criticism can get lost in the accompanying rhetoric. So lesson learned – no more suspender references.

Well, as many of you know, Mr. Sheaffer sent a response to Hal Boedeker (Casey Anthony: WFTV’s Bill Sheaffer says, ‘I … strive to consistently deliver sound legal analysis’) that was well written and very refined – no different than how Mr. Sheaffer speaks publicly. I respect him for that, but again, it has never been the tone in which he delivers his opinion that bothers me – it has been the accuracy of his content.

So with that, I would like to discuss the content of his response:

Mr. Sheaffer begins by telling Mr. Boedecker:

“I have been asked for, and strive to, consistently deliver sound legal analysis of this case, based upon my knowledge and experience gained from 30 years as a criminal defense attorney and my time as a prosecutor.

Well, he sidestepped the substance of my “complaint” – that his legal opinions were not supported by existing law – but I give him a pass on that, because that is what any good lawyer would do.

However, I would point out that his time as a prosecutor, lasted less than two years: 1978 – 1980. (See Bill Sheaffer Bio – JD obtained in 1978, Private Practice from 1980 – Present). So I am not sure how much insight can be given from being a prosecutor for less than two years. Most prosecutors don’t even handle their first felony case until right at two years – not to mention the law has change just an itty bit since Ms. Sheaffer last prosecuted a case (1980).

Regardless, lets get to the real double standard in his response.

“It is always easier to criticize than to create, and it is easier to denigrate than to develop one’s own well-reasoned discourse on a topic.”

Lets talk about that for a second. The very same day that he extols how much easier it is to “denigrate than to create,” he can be found denigrating (although mildly) Ms. Lyon for a lecture she gave at a seminar here in Orlando. (WFTV-ABC: Casey’s Death Penalty Attorney Called Jurors “Killers” and Raw Video Footage). Never mind that Ms. Lyon was “creating” a discourse among fellow defense attorneys (Mr. Sheaffer advertises his wares as one).

UPDATE: WFTV-ABC removed EVERY trace of this story on their website within hours of my posting. Please see Hal Boedecker’s blog post for his review of the story that actually aired. (Orlando Sentinel: Casey Anthony: WFTV offers audio of defense attorney Andrea Lyon blasting judges, jurors, female prosecutors at conference last year)

What might even be more telling is that although Mr. Sheaffer advertises on his website that he too represents people charged with First Degree Murder (If his clients were eventually convicted – does that mean he represents murderers?) – I nonetheless cannot see one time where he has lectured as an authority at a death penalty seminar.

Mr. Sheaffer advertises on his website that he too represents people charged with First Degree Murder…

But I do know this, Florida Rules of Criminal Procedure require a person who wants to handle Death Penalty cases to attend a Death Penalty Seminar once every two years. (See Florida Bar Rules 3.112.) So how can he denigrate Ms. Lyon for speaking at a seminar that he not only has a fifty percent chance of being required to attend – but a seminar he has never been invited to speak at?

Well what bothers me more about his “commentary”  is he failed to put the seminar into any kind of context during his staged video interview with Kathy Belich. I mean it is not like he did not have the chance, they specifically ask each other if they forgot anything – Sheaffer is ultra concerned he mentions professionalism.

But Mr. Sheaffer, the consummate professional, failed to mention that this particular seminar is called “Death is Different” (and considering you only experience death once, it sure is different) and is put on every year by the Florida Association of Criminal Defense Lawyers (FACDL), that attendance is only open to defense attorneys, and it is a very informal, collegial affair (he should know if he ever attended).

But more importantly, this seminar is held in Orlando so that people can come and spend time with their families at the parks after the seminar is over. Any lawyer will tell you, legal seminars are more for the attendees to get away and recharge, than to act like they are still in the straight jacket of work.

And as any Death Penalty lawyer will tell you – defending a person who is facing death is one of the most stressful jobs there is because of the fear an innocent person could die. (Please visit the innocence project for a list of innocent people killed at the State’s hands.)

As any Death Penalty lawyer will tell you – defending a person who is facing death is one of the most stressful jobs there is because of the fear an innocent person could die

Seminars tend to be filled with like minded professionals. It should be noted that the Florida Prosecutors Association puts on a seminar every year as well. And it is not open to defense attorneys – it would be interesting to know what they say about jurors and how to best obtain a death sentence – i.e. KILL SOMEONE.

And that allows me to segue into the next part of Mr. Sheaffer’s response.

“There will always be those who prefer to take that easier route. I think the public, the judicial system and the memory of Caylee are better served if the focus of the discussion remains on the facts of the case and the workings of our judicial system and not those who opine on these matters.”

I am just glad that Mr. Sheaffer admitted that his commentary is no longer about giving sound legal analysis – rather it is about honoring “the memory of Caylee” – which is exactly what his viewers wanted him to say.

And I don’t have a problem with him saying that if he was offering his commentary as that of a former prosecutor (Former prosecutor Bill Sheaffer: 1978 1/2 – 1980). Because I don’t expect prosecutors (former or not) to know the law – I expect criminal law experts to know the law.

Which brings me to my past point about his comments yesterday – Mr. Sheaffer is critical of Ms. Lyon because her comments in the Death Penalty seminar – which is open only to defense attorneys – are “unprofessional.”

Well I noticed something about their raw footage, Ms. Belich mentioned the other lecturers that she hadn’t listened to (go figure). But what I realized is that Ms. Belich had obtained the actual seminar audio and materials that are sold by the Florida Association of Criminal Defense Lawyers (FACDL).

And I know this about the materials, they are only sold to defense attorneys (no media, no prosecutors, no open records laws available) and any member who distributes them violates the Florida Association of Criminal Defense Lawyers by-laws. I believe an attendee also violate a separate oath they execute when they sign up for the seminar that they will not distribute the materials (this oath is for non FACDL members). And the reason for both these policies is fear that exactly what happened – someone like Belich will report on them out of context – doesn’t happen.

So not only does this undermine confidence that people can engage in a free discourse of ideas at the criminal defense seminars – it discourages other quality speakers from being willing to speak at such seminars in the future.

Now I cannot think of any “professional” lawyer that is a member of the Florida Association of Criminal Defense Lawyers who would violate not only FACDL’s by-laws, but also a separate oath and distribute these seminar materials to Ms. Belich.

But I do know this for a FACT. William J. Sheaffer is listed as a member of FACDL on his website and on theirs. You do the math.

William J. Sheaffer is listed as a member of FACDL… You do the math.

So Mr. Sheaffer, I could care less if I am ever asked to provide my “expert opinion” on television again because of my criticism of you – I never asked one reporter to let me speak and I didn’t get into criminal defense to be a local celebrity. I got into criminal defense because I love the fight.

So know this, I will be on you like white on rice. You have sold out your colleagues (I hope FACDL kicks you out) and besmirched our profession.

Every comment you say from here on out will by hyper-analyzed – just like you hyper-analyze everyone else. The only problem is I know what I am talking about.

Let the games begin.

Denying the Certainty of Death…

Sep 26th, 2009
by Richard Hornsby.
6 comments

A convergence of random occurrences has me thinking about the death penalty lately.

I have always though that crime is committed primarily by young people or emotionally immature people who had no understanding of right or wrong or, more precisely, no fear of consequences.

And when it comes to violent acts, I have often found that the acts were committed by people who had no appreciation for the value of life. And their lack of appreciation stemmed from no concept of, much less fear of, death.

And this brings me to the first of my random convergences. While reading, of all things, GQ magazine, I came across a quote from a book review for E.L. Doctorow’s novel Homer & Langley:

And then there was that feeling one gets in a ride to a cemetery trailing a body in a coffin — an impatience with the dead, a longing to be back home where one could get on with the illusion that not death but daily life is the permanent condition.

In many respects, this last line sums up much of the problem in youth crime and violence. When they are committing it, they think that life is eternal. In turn, they obviously lack the moral compass to understand the permanence of their action.

This then brings me to my second convergence. Last week I attended a three day death penalty seminar; it was also my first death penalty seminar. And being someone who considers himself somewhat of a trial hawk, I was at first put back by the tenor of the seminar, which focused primarily on the penalty phase (this presupposes you lost the actual trial).

But as I listened more, I understood why the seminar was so penalty phase focused. It was attended by people (defense lawyers) who not only understood the value of life, they witnessed the raw capriciousness by which the State attempts to take the life, that the law and sentiment is in their favor, and this leads to a rush to judgment in death penalty cases by jurors. So, attorneys must be prepared, with the relaxed evidentiary rules in the penalty phase, to humanize their client and calm the passion that has been created.

And in many ways, I realized that the same immaturity and “nothing to lose mentality” the state exhibits is no different that many youthful offenders. And so, comes the mantra of death penalty lawyers that Death is Different – and it must be defended as such.

And this brings me to the final convergence, about what true punishment is, specifically death – but not a quick painless death, not a death without human suffering. No, you see I do believe in the death penalty, but not state sponsored death. No the true death penalty is a natural death, a natural death in a small cell, watching your life waste away.

I can not think of anything more demoralizing, more painful, than to sit in a cell and come to the realization that life as a permanent condition is nothing more than an illusion. That there will be no escape and your existence is nothing more to sit in a solitary cell and watch your body waste away, to count the seconds, to never know when the death will come. The diseases of age will sit in, the ravages of cancers, strokes, heart attacks. To me, that is punishment, that is an eye for an eye.

And this brings me to my final convergence, but also the first one. Last April i was president of the Central Florida Association of Criminal Defense Lawyers and at our annual banquet we honored one of Florida’s most respected trial judges and death penalty experts, the Honorable O.H. Eaton. I suspect that few people understand the true value of life and death as he does.

But he said something very simple, that I think I would adopt as my approach when the day comes I am in the penalty phase of a death penalty trial. He told me that the fundamental thing lawyers fail to make jurors understand is that – Life means Life.

Specifically, there is no parole in Florida anymore. If someone is not sentenced to death – or more aptly, to die early at the state’s hands; they will instead spend the rest of their natural existences in a prison, a maximum security prison, for their entire life until God decides it is time for them to die – until God has determined that they have suffered enough.

And to even the most conservative juror, I think that would be true punishment…

Orange and Osceola County Criminal Case Initiation

Jun 9th, 2009
by Richard Hornsby.
1 comment

Having practiced primarily in the Ninth Judicial Circuit since graduating from law school, one of the most frustrating procedures I have witnessed is the manner in which a person has to pay multiple “court costs” in multiple cases that all arise out of the same arrest.

For example, if you get arrested in Seminole county for Fleeing and Eluding, DUI, and Driving on a Suspended License; the Clerk of the Court opens one case file in the Circuit Court (Felony Court) and all three charges are resolved at the same time. This is the way it should be done.

However, under the same scenario in Orange and Osceola County, the Clerk of Court opens up a separate case for each criminal-traffic offense. And because one of them is a felony, there are actually a minimum of two judges, two prosecutors, and two sets of clerk personnel involved.

Well I finally put pen to paper and issued a letter to the various Florida Bar criminal rules committees outlining the problem and the applicable law I believe applies. I am hopeful that this will finally get some changes made. Below is the text of my letter:

The Criminal Procedure Rules Committee
The Rules of Judicial Administration Committee
The Traffic Court Rules Committee
c/o The Florida Bar Staff Liaisons
651 E. Jefferson Street
Tallahassee, FL 32399-2300

Re: Request to Review the Rules Related to the Duties of the Clerk of the Court and the State Attorney as they apply to the Initiation of Criminal Proceedings that Involve a Criminal Traffic Component

Dear Committee Chairs:
I am writing to request that the rules committees review and, if necessary, harmonize or clarify the Rules of Judicial Administration, Criminal Procedure Rules, and Traffic Court Rules as they relate to the initiation of criminal proceedings that involve criminal traffic offenses.

The reason for my request is based upon a questionable initiation and intake process utilized by the Ninth Judicial Circuit Clerks of the Court and State Attorney when initiating and opening criminal cases; a process that appears to be in conflict with the applicable rules of procedure.

The Clerk of Court Procedure in the Ninth Judicial Circuit

Under Rule of Judicial Administration 2.555 (“Initiation of Criminal Proceedings”), when a person is arrested and charged with multiple criminal offenses arising from one episode, the Clerk of the Court should determine jurisdiction based under the most serious charge in the criminal complaint (usually the charging affidavit) and open a case file in the appropriate court of jurisdiction (county or circuit), which includes all of the lesser offenses that the defendant was also charged and arrested for that arose out of the criminal episode.

For example, if a person was arrested by law enforcement for Fleeing and Eluding (FATE), Battery on a LEO (BLEO), Resisting Without Violence (RWOV), Reckless Driving, Driving on a Suspended License (DWLS), and Speeding; the Clerk of Court should open one case in the Circuit Court. This is because the two felonies, FATE and BLEO, can only be heard in the circuit court.

As a result, only one judge, one prosecutor, one public defender (if indigent), and one set of clerk personnel are assigned. And as the case progresses, the law enforcement officers would only appear for hearings on one case. Also, if convicted, only one probation officer is assigned to the defendant.

However, in the Ninth Judicial Circuit, the Clerks of the Court (primarily the Orange County Clerk) do not create one court file based upon the most serious charge as required by Rule of Judicial Administration 2.555. Instead the clerks separate out each misdemeanor criminal traffic offense and civil traffic infraction and open each under a separate and distinct case in the County Court.

So in the Ninth Judicial Circuit, and under the above scenario, the FATE, BLEO, and RWOV are opened under one felony case number in the Circuit Court (in some instances the RWOV is opened under a separate county case number). The Reckless Driving, DWLS, and Speeding are opened under three separate and distinct case files in the County Court. To further complicate matters, an election for a hearing must be made for the speeding ticket (or any related infractions). Otherwise the Clerk will treat it as having been filed at large; and if it goes unpaid the clerks suspend the defendant’s driver license. Consequently, a motion must be filed by the defense attorney to consolidate related infractions with the criminal traffic case under Traffic Court Rule 6.130 (“Case Consolidation”).

However, in the case of indigent clients, the Public Defender does not handle related infractions and the defendant must handle them himself. This is obviously impossible for indigent incarcerated defendants. And in the case of released indigent clients, more often than not they are not provided with copies of their related infractions, or if they are, they assume they are handled automatically with the criminal cases. So they incur needless later fees and unnecessary license suspensions.

Consequently, under the Ninth Judicial Circuit’s scheme, a defendant would find himself with a minimum of three separate cases (possibly four) and – a minimum – of three judges, two prosecutors, two assistant public defenders (if indigent), and – three sets of clerk personnel. Also, law enforcement officers and witnesses are subject subpoena and appearance multiple
times (which equals less time on the street) in four to five separate cases (all with different case numbers, making case reference difficult). Also, if convicted on both the felony and misdemeanor cases, the defendant would be assigned separate probation officers (one for state probation, one for county probation).

The State Attorney Intake Process and Handling of Criminal Related Traffic Cases
To further complicate the matter; the State Attorney in the Ninth Judicial Circuit does not review or engage in criminal intake of criminal traffic offenses that are misdemeanors on their face; and the Clerk of Court simply initiates each as a new and distinct case in the County Court. This failure to review or undergo intake would seem to be in contradiction to the requirements of Florida Rule of Criminal Procedure 3.115 (“Duties of State Attorney; Criminal Intake”). It also raises the ethical question of who should be held responsible if a criminal case is not prosecuted in good faith.

As a result of this lack of intake, and under the above scenario, a defendant could find himself defending against the DWLS charge even though there is no actual evidence to support knowledge of a license suspension to support the criminal charge aside from the LEO’s hunch); whereas, if the State Attorney had reviewed the case in intake, they likely would have declined to prosecute the DWLS charge because the evidence only supported a civil infraction of DWLS. As for the Reckless Driving charge; an astute defendant could plea to the charge at arraignment and, at worse, receive 90 days in jail. However, the State Attorney would be prohibited under double jeopardy principles from filing the second degree felony offense of “Fleeing and Eluding a LEO in a Reckless Manner” because all of the charges were not reviewed together in intake.

So the State Attorney would be left with pursuing the lesser charge of third degree felony FATE. Also, the Ninth Judicial State Attorney has a policy of not assuming responsibility for disposing of civil traffic infractions that are consolidated with (or arise out of) criminal traffic cases because they claim to have no jurisdiction in such cases. This assertion would appear to be contrary to Section 27.02, Florida Statutes, (“Duties Before Court”) (“The State Attorney shall appear in the circuit and county courts within his or her judicial circuit and prosecute or defend on behalf of the state all suits, applications, or motions, civil or criminal, in which the state is a party.”)

Additionally, their refusal to assume jurisdiction over the civil traffic infractions creates needless dispositional problems. Because the infractions remain pending even if the State Attorney resolves the underlying criminal traffic case. To deal with this issue, some judges will “subsume and dismiss” related infractions; but not every judge believes they have this authority and instead requires a defendant to either plead to the infractions or elect a hearing. In the latter case it creates unnecessary work for the judiciary and requires law enforcement to make unnecessary future appearance for infraction hearings; where, instead, the State Attorney could have disposed of the infractions with the criminal traffic case and saved all parties needless time.

The Purpose of the Rules
Finally, I would point out that the underlying purpose of the each set of rules of procedure is to promote the fair and efficient resolution of cases. See Fla. R. Jud. Admin. 2.110 (“The rules shall be construed to secure the speedy and inexpensive determination of every proceeding to which they are applicable.”); See Fla. R. Crim. P. 3.020 (“These rules are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure and fairness in administration.”); See Fla. R. Traf. Ct. 6.020 (“These rules shall be construed to secure simplicity and uniformity in procedure, fairness in administration and the elimination of unnecessary expense and delay.”)

However, the Ninth Judicial Circuit process is neither fair nor efficient. It is unfair to a defendant arrested on multiple charges, as defendants are essentially taxed multiple times in the form of “court costs” simply because the Clerk of the Court decided to open multiple cases; rather than one case.

It is unfair to the citizens of the State of Florida, as the judiciary’s budgets (and now the clerk’s) are based on caseload statistics; as are the standards that dictate requests for additional judges. See Fla. R. Jud. Admin 2.240. Obviously the Ninth Circuit’s procedure inflates the amount of cases in a manner that is disproportionate to the amount of actual defendants. Thus the Ninth Circuit clerks and courts are able to claim greater budgetary and resource needs to the detriment of other circuits who do not report inflated caseload statistics (the neighboring Eighteenth Judicial Circuit for example).

The system is inefficient because it creates additional work for every agency related to the criminal justice system. It requires a minimum two sets of judges, clerk personnel, assistant state attorneys, public defenders, and probation officers to dispose of one defendant; whereas other circuits only need one (again, the Eighteenth Judicial Circuit is a perfect example).

Probably more alarming to the public in general, law enforcement personnel in the Ninth Judicial Circuit find themselves subject to being subpoenaed in multiple cases, different dates, for different proceedings that are all related to one arrest. Their time would be better spent on the streets rather than appearing multiple times for one defendant.

It is inefficient (and unfair) because an indigent defendant must keep track of multiple cases (and infractions) all related to his one arrest. In the above example, while the Reckless Driving charge will be considered to have been formally charged; the FATE and BLEO may still be in the State Attorney intake awaiting a formal charging decision. A trial and acquittal could occur on the Reckless Driving; but the State could file formal felony charges two months later on the FATE and BLEO (probably never knowing there was a trial). This is an unnecessary waste of judicial resources that is avoidable by amending the rules to require the State Attorney to intake all charges and file them under one Information. It would save the finite time of all criminal justice personnel involved.

And I leave you with this final, but common, absurdity involving violation of probation cases in the Ninth Judicial Circuit. Many times, under the above example, a defendant receives separate probation sentences: (1) State probation for the felony charges and (2) County probation for the misdemeanor criminal traffic case. When the defendant violates probation (say with a new arrest), his state probation officer will submit a VOP affidavit to the circuit judge and his county probation officer will submit a VOP affidavit to the county judge. Two separate warrants will be issued (one from each judge) and when arrested he will have two VOP hearings. Of course, the witnesses would potentially be required to attend both hearings.

So I pray that the members of the rules committees will carefully consider this issue; and revise the current rules to clarify the criminal case initiation and intake procedures and bring the unfair and inefficient practice to a stop.

Sincerely,
Richard Hornsby

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