"Stay Away From Drugs & Stupid Men"

I watched a woman, age 38, who was in trouble with the law for the first time in her life. She stood in the jury box, wearing a blue jail jumpsuit, shackles, and was pleading no contest to numerous felonies that arose from her involvement with a man that got her hooked on drugs. In the four cases, the charges included Robbery with a Deadly Weapon, Grand Theft (3cts), Theft, & Possession of Controlled Substance.

Judge Roger McDonald showed a kindness toward her that one doesn't often witness in court. Too many times, the plea process seems like an 18-wheeler barreling down the road - judges rattle through the questions at a rapid-fire pace, public defenders having had only a few moments to talk with their clients that morning, and "new" defendants sometimes bewildered by it all. This lady scored a minimum sentence of 52.5 months in the Department of Corrections for her crimes. Judge McDonald took several minutes to explain why sentencing guidelines were implemented in Florida and why he rarely varies from them. He encouraged her to take advantage of the substance abuse programs and other counseling that would be available to her in prison. And he told her he hopes she "stays away from drugs and stupid men."

I hope she does too.

Misdemeanor DV Court Gets "It"

In 2007, Orange County implemented at specialized misdemeanor domestic violence division. Court personnel received training about the dynamics of DV as well as knowing what the Statute requires. Judge Jerry Brewer presided over this division until Dec 2008 (except for 4 months in 2008 when budget cuts caused it to shut down). He did a phenomenal job of running this division and CourtWatch was disappointed when he was reassigned to traffic court in January.


Because of their specialized training, the prosecutors and judge in this division routinely include BIP (the 26 week Batterer's Intervention Program) in their plea agreements and sentencings. I spent a lot of time in Judge Brewer's courtroom in the early months of my courtwatching career and learned a great deal from him.

Once I began to monitor the felony courts more often, I was astonished to see the prosecutors and judges rarely, if ever, order BIP for domestic violence offenders - either in their plea agreements or when they'd been adjudicated by a jury. I can only assume that because their divisions handle a wide variety of offenses, that they didn't know that the Statute says:

• if a defendant pleads guilty or no contest to a crime of domestic violence, even if adjudication is withheld, Florida Statute requires they be receive 1 year's probation and be ordered into BIP - if the Court finds BIP is not appropriate (which would be the case in non-intimate partner violence), it must state on the record why it is not


• if a defendant is adjudicated guilty of a crime of domestic violence and they've intentionally caused bodily harm to the victim, they must be sentenced to a minimum of 5 days in jail

Last fall we presented our concerns to Chief Judge Belvin Perry about our findings that sentencings in felony divisions were not in accordance with statutory requirements. After researching the Statute, he agreed and issued a memorandum to the judges to make them aware of what the law requires. This memorandum was sent by CourtWatch to Lawson Lamar, the State Attorney for the Ninth Judicial Circuit (Orange/Osceola) in February.

In State v. Steven Piantieri 2008CF16896 (about which we previously blogged), the defendant was charged with felony battery and pled to misdemeanor battery on 3/31/09. He was ordered to complete 1 year of probation; have no contact with the victim (yet he was ordered to write her an apology letter!); 1 day jail with credit for time served (where is our 5-day jail term?); complete 35 hours of community service; continue with anger management counseling on a weekly basis with his existing counselor and provide proof to his attorney.

Orange County Probation's specialized DV unit asked for a hearing this week to clarify the sentence because there is no such program as Domestic Violence Anger Management. You can order either Anger Management or BIP (which is geared toward counseling batterers about issues of power and control - not anger). The victim definately wanted BIP ordered. The judge was inclined to agree. HOWEVER, the Assistant State Attorney handling the case, Diane Murphy, said that anger management was acceptable. BIP was not ordered for Mr. Piantieri.

For CourtWatch, and for the victim, this is unacceptable! We need the State Attorney and his Assistants to do their best to enforce the law. That is what we as citizens should expect from our prosecutors.

Welcome Back Judge Wattles

CourtWatch is pleased to have Judge Bob Wattles back on the bench after a several month departure for chemotherapy. He does something that I've not seen other judges do in trials - he allows jurors to submit questions (in writing) for a witness to answer before they're excused from the stand. When a question is submitted, the attorneys and the judge confer to determine its legality. If it is, the question is posed.

What a great idea! Sometimes, when the attorneys know their case thouroughly, a question to elicit testimony about a foundational fact may have been overlooked. They just assume that everyone knows this piece of information. On the flip side, in these days of budget cuts, it might be that the attorneys are so swamped with cases, they don't know the facts and therefore don't think to ask the question. In either case, it enhances the trial to allow jurors this privilege.

Jurors only know the case they're deciding. And they want to know all the details so they can render a proper verdict. Being permitted to pose questions also has the benefit of keeping them more engaged in the trial (I saw one juror falling asleep in another courtroom earlier this week - he was replaced with an alternate).

Kudos to Judge Wattles for engaging his jurors in this manner. And welcome back!

Injunction Dysfunction

I spent about 2 hours monitoring 4 injunction hearings in Judge Sally Kest's courtroom this morning. Typically, when an Injunction (also known as an Order for Protection or a Restraining Order) is granted, the Respondent is not permitted to contact the Petitioner at all. "No contact" means no emails, phone calls, texts or even messages relayed by a third party (unless one is designated by the Court to handle communications with respect to any children). However, when children are involved, parents often need to communicate with each other about visits, emergencies, etc. In most cases, another family member's home or the child's school/daycare can serve as the drop off and pick up point for the child so mom & dad don't have to see one another. And in most cases, this is a satisfactory solution for the parents.

Injunctions provide that the Respondent is not permitted to come within 500' of the Petitioner's residence or other prohibited place (e.g., Petitioner's place of employment). Nor is the Respondent allowed to come within 100' of the Petitioner's car (I'm not sure why the Statute doesn't say the Petitioner instead of their vehicle, but I digress).....

Only one case (the first one) involved a couple that had been married. The other three had children together. No paternity actions had been filed (see blog entitled "Paternity 101").

Case #1 [6 month injunction granted]: The parties were divorced some time ago. Petitioner (dad) had a cast on his hand as a result of his having punched a kitchen cabinet while on the phone with the Respondent. The Respondent (mom) admitted to having later touched the Petitioner first - sparking the violence that was the subject of this case. In her ruling, Judge Kest initially said that pick up & drop off for the children (ages 6, 12 & 17) at each others' houses was permitted. She then said the school would be the location, but that when school is closed, they could go to each other's homes. The Respondent (mom) then advised the judge that the younger children were already enrolled in a summer camp daycare program. In what appeared to be an effort to wrap up the hearing as quickly as possible, Judge Kest neglected to verbally indicate the camp as the pick up / drop off location during the summer and she failed to tell the parties the length of the injunction (although this is found in the paperwork each one receives).

Case #2 [12 month injunction granted]: The Petitioner alleged that her child's father, in addition to being violent, has alcohol problems and has driven their child while intoxicated. She requested supervised visitation and was denied. The judge prohibited both parties from consuming alcohol while caring for the child, and stated that if they were using a babysitter for 5+ hours while they were the custodial parent, the other parent was to take the child. Additionally, Judge Kest ordered "no hostile contact" for school events. She ordered the Petitioner to contact dad to advise him of any doctor appointments so that he would have the option to attend. This was ordered to be a "no hostile" scenario as well. She permitted email communication between the parties. In what was a gross oversight, there was testimony that this Respondent had a previous 1-yr injunction against him by the same Petitioner and allegedly violated it before it expired last year. Judge Kest failed to order him into Batterers' Intervention Program (BIP) as required by Florida Statute.

Case #3 [3-yr injunction granted]: The Respondent failed to appear for this hearing. The Petitioner advised the judge that the Respondent had served time in prison several years ago for an assault where she was the victim. The judge told her it was foolish of her to try to go back to him when he was released (in spite of the Petitioner's agreement with this assement, we belive that blaming the Petitioner under these circumstances was inappropriate). The Petitioner also advised that her child's father engaged in several power & control tactics with the child - taking away toys and blaming mom, verbally & emotionally abusing the child, verbally abusing mom in front of the child, etc. Judge Kest recommended the Petitioner seek counseling for herself to understand why she makes the decisions she's making (still appearing to blame the victim). She failed to order BIP in this case as well. It is also within the realm of the judges to order drug and/or alcohol evaluation/treatment. The Respondent's record includes numerous drug charges and assault offenses (12 cases in Orange County dating to 1998 when he turned 18). There was no testimony about the Respondent's drug convictions, nor did the judge inquire about his history.

Judge Kest did order supervised visitation through Family Ties but left the mother in tears because she is still terrified for the safety of her child. Unfortunately, this specimen of fatherhood, who didn't bother to come to court today, still has parental rights unless terminated by court order. No explanation of how the Family Ties program works was provided.
Case #4 [4 month injunction granted]: This was a case of apparent "mutual assault." The Respondent (mom) admitted to first grabbing the Petitioner in an attempt to get him to talk to her as he walked up some stairs with his back to her. He confirmed that he ripped her shirt off and tore off a necklace she was wearing. From the testimony I heard, it appeared to me that the Petitioner was the aggressor. Judge Kest would not accept police reports as evidence because they are considered hearsay. However, we believe that a law enforcement officer's observations about the parties' demeanor should be reviewed if available. This information would be found in a police report. Once again, the judge allowed "no hostile" contact when exchanging the child - asserting that mom and dad will have to have contact even though the paternal grandparents' home was designated as the exchange location. To imply that mom and dad will be required to come into contact with one another is to invite additional hostilities and create confusion about how to enforce the court order.

In all cases, no explanation of what "no contact" entails was attempted by the Court. In spite of the fact that both parties receive a copy of the court order, an explanation of the terms and conditions is critical. DV perpetrators and their victims often misunderstand the paperwork they're given - sometimes interpreting through their own biases. Harbor House advocates are available to explain the process and the rulings to petitioners. The repondents are on their own to figure it out.

Finally, I'll say it one more time, "no hostile contact" is not an enforceable ruling in cases where one person abuses their partner by perpetrating power and control over them. A certain glance, or a veiled threat that only the victim understands, would not be viewed as "hostile" by anyone outside of the relationship. Shouldn't the parent who is violent with his/her family be the one to have to abdicate their "right" to attend the school play while an injunction is in effect?

Paternity 101

There are countless cases in our court system that involve disputes between two people who have a child together but were never married. Most of the time, the children are very young preschoolers or infants who often witness arguments and/or violence between their parents when being "exchanged" for a visit. Issues of child support (or its absence) and visitation can become explosive when Mom & Dad can no longer agree on money or weekends. Add in to this mix the new boyfriend/husband or girlfriend/wife who resents or dislikes their new partner's ex and it's only a matter of time before things heat up and people are getting arrested for assault or coming to the courthouse to file an injunction.

Married people have a mechanism to deal with these issues. It's called a dissolution or divorce case. Unmarrieds also have a mechanism where the Court has jurisdiction to resolve these matters. It's called a paternity action and it can be done without an attorney. It benefits fathers because it gives them legal rights to be involved in visitation & decisions relating to their child (school, medical, etc). It benefits mothers, who typically have primary responsibility for the child, to receive financial support from the father. And it benefits the community because it provides a case for the Court to have jurisdiction to resolve disputes - instead of someone ending up in jail when they try to resolve a dispute with violence. Most of all, it benefits the child, who will (hopefully) be spared the trauma of seeing Mom and Dad verbally and/or physically assaulting each other.