'Bad Sushi': Confusion Lingers Eight Months After Marsy's Law

Jul 31, 2019

Eight months out, questions still circle Marsy's Law implementation.
Credit zef art / Adobe Stock

A national campaign successfully placed Marsy’s Law on the books in Florida last year. The amendment put a crime victim bill of rights in the state Constitution. When the measure took effect in January, supporters argued it was self-implementing. But eight months later, there’s still no consensus on the amendment’s vague language. It even pits parts of the state constitution against each other.

Marsy's Law for All

The Marsy's Law movement is spearheaded by billionaire Henry Nicholas, founder of technology company Broadcom. He launched the Marsy's Law for All campaign in 2009. 

Nicholas' sister, Marsalee, was stalked and killed by her ex-boyfriend in 1983. On the way home from Marsy's funeral, Nicholas and his mother stopped at a convenience store to buy a loaf of bread. "It was there, in the checkout line," according to the Marsy's Law for All website, "that Marsy’s mother, Marcella, was confronted by her daughter’s murderer. Having received no notification from the judicial system, the family had no idea he had been released on bail."

Dr. Henry T. Nicholas III, left, and his mother Marcella Leach lay a white carnation at the steps of the old Orange County Courthouse during the Orange County Victims' Rights March and Rally, Friday, April 26, 2013, in Santa Ana, Calif. Dr. Nicholas is co-founder of Broadcom Corp. and chief architect of Marsy's Law
Credit Bret Hartman / AP Images for MarsysLawForAll.org

The first state to adopt Marsy's Law was Nicholas' home state of California in 2008. Since then, 11 more states have adopted Marsy's Law, though it was struck down in Montana and Kentucky. Two more states, Wisconsin and Pennsylvania, are poised to vote on the measure in the next two years.

Nicholas has almost single-handedly funded the efforts. Florida's campaign was financed entirely by contributions from Marsy's Law for All and Nicholas, according to campaign finance documents.

Law Enforcement Lacks Consensus

The problems began shortly after the law took effect on Jan. 8. One protection gives victims the right to “prevent the disclosure of information or records that could be used to locate or harass you or your family, or which could disclose your confidential or privileged information.”

That provision is one law enforcement agencies across the state have grappled with. Some, such as the Tallahassee and Tampa Police Departments, have stopped providing almost any information about victims. Police reports are heavily – sometimes completely – redacted. In cases like home robberies, even the location of the crime is hidden.

The Tallahassee Police Department automatically redacts any information that could be used to identify a victim.
Credit City of Tallahassee

“We cannot give any information that gives the location – the name and/or location of the victim – so that way they, and also their families, cannot be harassed,” Tallahassee Police Department Spokesman Damon Miller told WFSU News in January.

Others, like the Leon County Sheriff’s Office, say victims have to assert that protection. This pits law enforcement agencies acting within the same jurisdictions against each other.

As recently as May, law enforcement was still struggling to interpret the amendment’s murky language. Adam Fetterman, lawyer for the St. Lucie County Sheriff's Department, wrote in an email to members of the Florida Association of Police Attorneys “I seem to revisit Marsy’s Law almost daily – it comes back like bad sushi on Groundhog Day, living the misery over and over and over again.”

Marsy’s Law for Florida commissioned a legal opinion from prominent Tallahassee attorney Barry Richard of GreenbergTraurig. He concluded that, despite conflicting with Florida’s public records laws, victim information should be automatically redacted.

“Because the open records provision recognizes an exception for exemptions specifically provided in other sections of the Constitution, which includes the victims’ privacy provision," Richard wrote, "there is no conflict between the two provisions.”

An Unfunded Mandate

A number of the issues are also playing out in the justice system. One of the biggest changes is an increased workload for state attorneys, who are now charged with notifying victims of updates to the case throughout criminal proceedings.

This is especially true in cases where offenders want to have their records sealed or expunged.

State Attorney Jack Campbell said complying with Marsy's Law comes at a cost.
Credit State Attorney's Office, Second Judicial Circuit

“Trying to find somebody 25 years later is hard," said Jack Campbell, state attorney for Florida's second judicial circuit. "And so, I’m then using investigators to go try to reach these people. Often we’re left with very antiquated addresses. Often the victims are dead."  

Campbell said he’s working to develop a website that will notify victims automatically. He’s modeling it after the Vine system already in use by the state Department of Corrections. But the legislature didn’t appropriate additional funds to put these changes in place. Campbell calls it an "unfunded mandate."

State Attorney Bill Cervone, of the eighth circuit, said his office has made similar changes. But Cervone, a vocal opponent of Marsy’s Law, admits he hasn’t run into any real complications. But he said that's because he was already doing everything that Marsy’s Law now requires.

Most opponents of the measure have made similar arguments. Florida already had most the protections either in statute or in the state Constitution.

Balancing The Rights Of Victims And The Accused

Cervone does, however, see the opportunity for Richard’s legal opinion to clash with the Sixth Amendment of the U.S. Constitution, which guarantees those accused of crimes the right to confront their accusers. Cervone said if law enforcement can keep a victim's name private, that could carry over into judicial proceedings, a concern shared by Public Defender Andy Thomas.

"Well if you can’t give out names, and you can’t give out addresses, and victims can intervene and say ‘I don’t want them to know this and I don’t want them to know that,’ ... well, you got problems," said Thomas, who represents the second circuit. "Because the accused has the right to confront the accuser. And that is through the lawyer.”

Andrew Warren, state attorney for the thirteenth circuit, vehemently denied that would happen. He said some rights take effect when a person is charged for a crime, “but when we talk about the rights to trial, it’s at the time the criminal justice process begins.”

Instead, Warren said Marsy’s Law is meant to protect victims and help them navigate the justice process.

“By embracing Marsy’s Law and putting it in the Constitution we were elevating victims’ rights to fundamental principles of the state to make sure that the system treats them fairy, with dignity and respect, and to make sure that victims are free from harassment.”

No Legislative Action

A bill that would’ve cleared up many of these issues failed to even get a hearing in the legislature this year. State Sen. Jeff Brandes (R-St. Petersburg), who is the vice chair of the criminal justice committee, defended lawmakers' inaction.

State Sen. Jeff Brandes (R-St. Petersburg) said the legislature will address Marsy's Law next session.
Credit Steve Cannon / AP

“Obviously you have lots of different state’s attorneys a lot of different public defenders that are addressing these issues in a variety of different ways," Brandes said. "We thought that it would be best to take a year to kind of see what the real world experience was and then come back and address it next year.”

Brandes added he's confident the legislature will act on Marsy's Law next session, which begins Jan. 14, 2020.

Both opponents and supporters of the measure agree that more guidance is needed. Many prosecutors said they expect legal challenges to the law, possibly making it up to the state Supreme Court. 

A Marsy's Law for Florida spokeswoman did not immediately return a request for comment.