Lawyer - Orlando - Florida
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Today I appeared before the 5th District Court of Appeal for oral argument in a child abuse case I tried back in February 2011. You can watch the video of the oral argument below. Supposedly we should have a ruling in about a month. You can never quite tell which way the judges are leaning, but it seemed like I had at least one judge on my side. What do you think?
It seems that cases will languish all year and then all of them will suddenly be set for trial at the same time. Since October, I have been in what feels like a perpetual trial call.
In October, State v. Pamphile, a Robbery With a Firearm case stemming from an incident that occurred in January, finally got set for trial. Because of a ridiculously large trial docket however, the case did not proceed. Instead, it has been on a 24 hour trial call since October 17, 2011. That means that at any given moment, if my office receives a call from the Judge, we must be ready for trial within one hour. Preparing for trial is stressful for all involved- being in a constant state of trial preparedness for 2 months is exasperating.
On November 2nd I went to trial on a Resisting Officer Without Violence and Refusal to Sign a Citation in State v. Avellan. This was an interesting case because the law on which it was based has recently changed. It used to be that refusing to sign any traffic citation was a criminal offense. Recently, the law changed so that it is now only illegal to refuse to sign a criminal traffic citation or a traffic citation that requires a mandatory court appearance. The change in the law resulted in some confusion and disagreement between the State, the Judge and I with regard to the jury instructions and ultimately led to a conviction. However, we have a Motion for Arrest of Judgment pending which we are hopeful will reverse the conviction and result in a new trial.
On November 14th State v. Chittum went to trial. This was a Sexual Battery case where the wife alleged that her husband had anal sex with her without her consent. However, the wife had not reported these allegations for over a month and couldn’t remember exactly when it happened. She even testified that she continued to have sexual relations with her husband during the month after the alleged rape and twelve months later, at the time of the trial, she had still not filed a petition for dissolution of marriage. I was able to argue that the wife, a devout Christian, felt guilty about giving in to temptation and therefore had to convince herself that she had not engaged willingly. The jury agreed and found Mr. Chittum not guilty of all charges.
On November 29th State v. King went to trial in Osceola County. The charges were Possession of a Firearm by Convicted Felon and Possession of Cocaine. The officer could not remember any details of the incident except that Mr. King gave him permission to search his pockets and admitted to having cocaine and that a gun was found in the glove compartment of Mr. King’s car. He could not remember how many other officers were on scene or how long he held Mr. King there. Mr. King testified that he was searched without consent and that there were at least 10 other officers on scene during the hour and a half that he was handcuffed to the tailgate of the officer’s pick up truck. I successfully argued that the State had to prove that Mr. King knew that the gun was in his car and that they had failed to do so. The jury returned almost two hours later with a not guilty verdict on the more serious charge of Possession of a Firearm by a Convicted Felon and a guilty verdict on Possession of Cocaine.
Luckily we had a bit of a reprieve in December. No trials- but a number of victories nonetheless. Over the last three weeks I have been able to get 1 case amended to a civil infraction, 2 Violation of Probation cases dismissed, 2 cases sent to pre-trial diversion, and 1 man finally gets to see his child overnight for Christmas after 2 years of supervised visitation. However, the biggest victory this month comes in an Attempted Felony Murder and Attempted Second Degree Murder case. Back on November 1st we argued a Motion to Suppress based on the fact that although the Defendant had been read his Miranda rights, he had asked a very important question with regard to those rights which was never answered by the police. Finally, on December 12, 2011, over a month later, we received the Judge’s ruling granting our Motion to Suppress and excluding 4 1/2 hours of the Defendant’s recorded statements. Unfortunately, it seems the State is planning to appeal this ruling, but we are optimistic.
Stay tuned for January’s update- I have 5 trials set on January 3rd and oral argument before the 5th District Court of Appeal!
Jennifer Jacobs LLC
What has happened to the confidentiality that is supposed to protect America’s children from persecution? The purpose of creating a separate juvenile court was to ensure that children would not be branded with their youthful indiscretions and haunted by them for the rest of their lives. This is the reason juveniles are not “defendants,” they are “respondents”; the reason “petitions” are filed instead of “informations” or “indictments”; and the reason juvenile case files are not available to the public. We all have a constitutional right to privacy, but there are specific laws in place to protect documentation of certain childhood activities. Specifically, educational records.
Currently there is a juvenile case in Orlando receiving widespread media attention. In keeping with my convictions regarding juvenile confidentiality, I will not disclose the child’s name, but you may have heard of this case as the “Teen Abduction Case.” Since the case has received more attention than it should have on its merits, I will not go into my opinion regarding whether this case should or should not be prosecuted. That decision is ultimately up to the State Attorney’s Office to be determined based on whether they believe there is sufficient evidence of a crime. Instead, I feel compelled to address recent disclosures about the teen’s school disciplinary history that have been made in court and to the media by Assistant State Attorney, Teri Mills- Uvale.
On Thursday, June 24, 2010, this case was scheduled for a status hearing. At his initial hearing on June 12, 2010, the child was placed on “home confinement” awaiting trial. At Thursday’s hearing, defense counsel did not even request that the child be removed from home confinement. However, although not yet prepared to file a petition, ASA Mills argued to the Judge that the child should remain on home confinement. The reason- because of the child’s school disciplinary record. This disciplinary record was described as extensive and allegations were made that some of them were for sexually related incidents. After the hearing, Ms. Mills exited the courtroom and further described this disciplinary record to throngs of reporters (who were advised to be there by the State Attorney’s Office).
The child’s school disciplinary record is completely irrelevant and unrelated to the case at hand or whether he should remain on home confinement. Although it is ridiculous for the State Attorney’s Office to rely upon and disclose disciplinary records of this 14 year old boy, there has been no discussion regarding how the State Attorney’s Office obtained these records.
I’d like to direct your attention to Florida Statute 1002.22(2)(d), which deals with “Rights of Students and Parents.” Specifically, subsection (2)(d) declares that parents and students have a right to privacy with regard to students’ records. The Florida Statute even sets forth a penalty for violation of these privacy rights.
“If any official or employee of an institution refuses to comply with this section, the aggrieved parent or student has an immediate right to bring an action in circuit court to enforce his or her rights by injunction. Any aggrieved parent or student who brings such action and whose rights are vindicated may be awarded attorney’s fees and court costs.” F.S. 1002.22(4).
These rights afforded to students and their parents must be in accordance with the FERPA, the Family Educational Rights and Privacy Act, 20 U.S.C. 1232g. Under FERPA, schools may not receive federal funds if they do not preserve the privacy of students’ “education records.” ”Education records” means records, files, documents, and other materials which contain information directly related to a student; and are maintained by an educational agency or institution or by a person acting for such agency or institution.
Subsection (b)(1)(E) makes an exception for the release of education records to:
State and local officials or authorities to whom such information is specifically allowed to be reported or disclosed pursuant to State statute adopted—
(ii) after November 19, 1974, if—
(I) the allowed reporting or disclosure concerns the juvenile justice system and such system’s ability to effectively serve, prior to adjudication, the student whose records are released; and
(II) the officials and authorities to whom such information is disclosed certify in writing to the educational agency or institution that the information will not be disclosed to any other party except as provided under State law without the prior written consent of the parent of the student.
This section was designed to allow schools to forward education records to the Department of Juvenile Justice (DJJ) when they have a student in their care. Children are required by law to attend school, and juveniles being held in secure detention are no exception. In order for DJJ to determine the correct grade and educational needs of a juvenile inmate they must be able to access their educational records. This is not a license for a school to send a child’s disciplinary records to a prosecuting agency.
Subsection (h) of the FERPA specifically addresses disciplinary records. This subsection only permits schools to disclose disciplinary records to other teachers or school officials. There is nothing in the Federal or Florida Law permitting schools to disclose disciplinary or educational records to state prosecuting agencies.
In fact, there was a case dealing with this precise subject. In F.A.T. v. State, 690 So.2d 1347 (Fla. 1st DCA 1997), the appellate courts concluded that students’ reports and records are not subject to public disclosure. While the case primarily dealt with attendance records, disciplinary records clearly fall within the same scope of a student’s “reports and records.” Florida Law clearly provides that students and parents have a right to privacy to those records. In F.A.T., the Court held that the State Attorney’s Office was not able to use the confidential and private student records in furtherance of a prosecution of the child.
Do we know whether the State Attorney’s Office subpoenaed these records? If not, this child’s school violated the law by disclosing his disciplinary records to the State Attorney’s Office. The State Attorney’s Office, by requesting these records without a subpoena, assisted the school in violating the law and the child’s privacy rights. The State Attorney’s Office further aggravated the disclosure by specifically requesting members of the media to be present while disclosing clearly private and confidential records to the public.
Had the State Attorney’s Office subpoenaed these records, the School would have been required to review each document and redact any information that was confidential. Even if the school would have been ultimately permitted to turn over the child’s disciplinary records, the names of any other children involved in any of the reported incidents would have been required to be redacted. So, even if you are not concerned by the blatant violation of an accused’s privacy rights, how about the privacy rights of the other children at the school who may have been involved in a school incident but who have not been accused of any criminal offense?
The Assistant State Attorney on this case is circumventing the law in an attempt to provide “services” to the child that she deems to be helpful. Unfortunately, this is an ongoing problem in the juvenile court. As a former Juvenile Public Defender in Orange County, I have seen judges find juveniles guilty not because the juveniles are actually guilty but because the judges believe the child is in need of services that can only be provided through a sentence. Here, we are seeing the Assistant State Attorney further this same goal. While it may be debatable whether this child needs services, he clearly does not need a criminal record. The State Attorney’s Office should not be using the juvenile court system in an attempt to provide services or discipline that the school was unwilling or unable to provide.
The bottom line is that this 14 year old boy who has not even been charged with a crime yet has had his rights violated by his school and the State Attorney’s Office, and the majority of the media has only further trampled his rights.
Jennifer Jacobs LLC will take the time to explain the legal questions and steps involved in your matter. She knows that with clear communication, you are better able to provide insight into your issue that can help resolve your problem.
The attorneys at Law Offices of Jennifer A. Jacobs, LLC welcome the opportunity to discuss your legal concern with you.
