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Florida prosecutors latest to grapple with Marsy’s Law

A Florida Supreme Court ruling has drawn state attorneys into the debate over what information should be made public.
After a November ruling by the Florida Supreme Court, Florida State Attorney's Office are now grappling with how to apply Marsy's Law -- much like law enforcement agencies have been for the last several years.
After a November ruling by the Florida Supreme Court, Florida State Attorney's Office are now grappling with how to apply Marsy's Law -- much like law enforcement agencies have been for the last several years. [ Tribune News Service ]
Published May 17|Updated May 17

Since Marsy’s Law was passed in Florida in 2018, law enforcement officials have debated how and when to apply the rule to keep crime victims’ information from becoming public record.

Some agencies — such as the the Hillsborough and Pasco sheriff’s offices and the Tampa Police Department — have applied the rule automatically to all criminal cases. Others, like the St. Petersburg Police Department and the Pinellas County Sheriff’s Office, have only invoked Marsy’s Law if a victim specifically requests it.

Over the past few years, debate also has flared over whether police officers who use force against civilians should be shielded under the law, the argument being that officers often are victimized by the person they use force against.

Now, a procedural rule approved by the Florida Supreme Court in November has drawn prosecutors into the center of debate over when and whether to invoke Marsy’s Law. And like law enforcement agencies, prosecutors’ decisions on when to invoke it has been far from uniform.

Marsy’s Law is an amendment to Florida’s constitution that was approved by voters roughly four years ago. The amendment was based on a similar law in California, and is named for Marsy Nicholas, who was murdered by her ex-boyfriend in 1983 while she was a senior at the University of California.

The amendment includes a prohibition on “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.”

Whether or not this right is applied automatically has long been up for debate.

The November rule requires government agencies to file a form notifying the clerk of court whenever they file a court document that may contain crime victims’ confidential information. The clerk of court then redacts that information.

During oral arguments for the procedural rule, Florida Supreme Court Justice Charles T. Canady asked if the new rule would answer the question of whether victims’ information should be automatically withheld, potentially ending the debate that has led to speculation since Marsy’s Law was approved.

“We believe each circuit can make that determination,” said Michael W. Schmid, who served as chair of the subcommittee — representing several judicial rule committees that proposed the rule.

Since the November decision, state attorneys have begun parsing through how to interpret the rule. Some have started to request redaction of all crime victim information, while others have continued as normal, only asking for redactions upon victims’ request. One office even stopped filing documents — other than initial charging documents — citing concerns about the staffing needed to redact files.

In the Tampa Bay area, the Pinellas-Pasco State Attorney’s office has begun requesting redactions on behalf of all crime victims. The Hillsborough County State Attorney’s Office, however, still requires that victims must opt in for their information to become confidential, State Attorney Andrew Warren said.

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“We still don’t have uniform application in how the laws are to be applied from circuit to circuit,” he said.

The Pinellas-Pasco State Attorney’s Office began using initials to refer to all victims, a practice previously used by some courts to shield juveniles from the public eye in court filings. The office also began requesting redactions from the clerk of court for all other victim information. Throughout the process, the office used the procedural rule as guidance, assistant state attorney Christie Ellis told the Tampa Bay Times.

“We looked at that, and got with our clerk’s office,” she said, “And (we) tried to find a solution that we would not cause enormous amounts of work for either side, but that we could comply with the law.”

As the Pinellas-Pasco State Attorney’s Office grappled with how to interpret the new rule, they consulted with the state attorneys for the 15th and 7th judicial circuits.

Representatives for the state attorney’s office in the 7th judicial circuit — which represent Flagler, Putnam, St. Johns and Volusia counties — did not respond to multiple requests for comment. But in Palm Beach County, where the 15th Judicial Circuit is located, Chief Assistant State Attorney Craig Williams said victims are now referenced by their initials in charging documents.

Williams said his office has interpreted the rule to mean that Marsy’s Law now automatically includes all victim information. But he said his office doesn’t have the resources to file a notice of confidential victim information with every court document, so they’ve just stopped filing many documents.

“The legislature gave us no money to comply with Marsy’s Law,” Williams said, adding that complying with it comes at a huge financial cost.

The lack of records could cause issues when people appeal cases down the road, Williams said. But he said he believes it will be easier to deal with that than it would be to file every court document with a notice of confidential crime victim information.

In Florida’s 2nd Judicial Circuit, which covers multiple counties surrounding Tallahassee, the state attorney’s office uses an opt-in process for victims, notifying them of their right to request privacy, Victim Services Director Helene Potlock said. The office also files notices of confidential victim information in sexual violence and juvenile cases, she said.

Other large state attorney’s offices have yet to decide how they plan to interpret the new rule.

Ed Griffith, a spokesperson for the Miami-Dade State Attorney’s Office, said the office is still evaluating the changes to Marsy’s Law.

The state attorney’s office for the Jacksonville metropolitan area does not file many documents that would contain confidential victim information, said David Chapman, a spokesperson for the 4th Judicial Circuit State Attorney’s Office, which covers Clay, Duval and Nassau counties.

“Now that we have a final rule to adhere to, our office is working to formulate a uniform policy that will work for all three counties to comply with the law,” Chapman said in a statement to the Times. “We are anticipating that policy will be finalized this summer and will have the input of attorneys, victim advocates, paralegals and staff.”

First Amendment Foundation Staff Attorney Virginia Hamrick said a large degree of uncertainty remains surrounding Marsy’s Law, including everything from when to withhold information and for how long and what rights are automatic.

“All of that is still just so up in the air,” she said. “And as a result, different circuits are doing different things.”

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