Child Support Almost Ordered Against the Wrong Man

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I witnessed child support almost get ordered against a person who was not the father of the child.  I was in court, waiting for my case to be called, when a case was called for a Department of Revenue Hearing.  The mother of the child was present and she sat next to the attorney for the Department of Revenue.  The alleged father was not present.  The attorney immediately asked the magistrate (judge) to enter a default judgment since the father was not present and therefore was not contesting the amount of child support.  The magistrate asked if paternity had been established.  It was only at that moment that the attorney paused to look through the records.  The found the results of the DNA test that confirmed the person listed was not the father of the child.  He showed the results to the mother, who seemed completely unaffected by the news, and announced the results to the magistrate.  The case was dismissed against the alleged father despite his absence at the hearing.

I had several thoughts racing through my mind as I sat in court that morning.  First, the lyrics to Michael Jackson’s song Billie Jean came to mind.  Before there was Maury, Michael Jackson sang about a woman who thought he was the father of her child.  I am not judging the mother for not knowing he was not the father of the child; however, why didn’t she resolve the issue of paternity when the child was first born.  It is easier for unwed mothers to remember who they had sex with during or immediately following the pregnancy that years later.  Her reaction made me think that she knew that he was not the father of her child but she simply listed him as a potential father anyway.  She said that she drove him to the office for the DNA test.  Which may be an indication that he already knew he was not the father and simply wanted her to know for sure.  Michael Jackson said Billie Jean was not his lover, and maybe this guy was also never had sex with this woman.

Second, if the magistrate had not spoken up and asked about paternity, that man would have been ordered to pay child support for a child that was not his.  If the child support was ordered, his paycheck could be deducted to pay the child support.  If he failed to pay the child support, his income tax refund could be seized, and his driver’s license could be suspended, and he could have a writ of bodily attachment (similar to a warrant to arrest) issued for him.  All of these actions could be taken against him for simply being alleged to have fathered the child.

Third, it is extremely difficult, if not impossible in certain situations, to reverse an order for child support and excuse any unpaid support or refund child support paid.  The magistrate could have easily ordered him to pay child support without questioning the paternity and the burden would have fallen on him to correct the mistake and reverse the error.  There could have been months of child support ordered against him before he was aware of the order and he may have been forced to pay the child support for that time period despite that fact he is not the father.  All of this could have easily been avoided if he had simply shown up to court to say he is not the father of the child.  All parties who are have notice of pending court proceedings should always appear to ensure their rights are protected.

Fourth, I thought about the requirements for the Department of Revenue force mothers to name someone to be the father, even if she knows he is not the father, for her to continue to receive benefits.  Under Florida Statute 409.2563, the Department of Revenue can file to establish child support on behalf of an applicant or recipient of public assistance, a former recipient of public assistance, or the child.  If a mother refuses to cooperate, she might be prevented from receiving public assistance including housing benefits, food stamps, Medicaid, etc.  This can force a mother to name someone, even knowing that person is not the father of the child, so she can continue to receive benefits for herself and the child.  This mother who appeared in court may have told the alleged father to simply cooperate and take the DNA test so she could continue to receive her benefits.

Maybe she knows the real father of the child and does not want the child to know that person is the father.  Maybe she does not know the real father and is simply guessing and hoping for the best.  However, wouldn’t it be better to have paternity of children of all unmarried mothers determined at or near the time of birth to save us all litigation and time?

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Confess your sins to your lawyer or your priest, not the cops

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I am always amazed when people who confess to their crimes to the police will lie to me, their attorney.  I’ve heard that some people confessed because they think thought they would not get arrested if they told the truth.  Some of them thought they would get a lower sentence if they confessed.  I remember laughing when I heard a defendant say he should get a reduced sentence for confessing because he saved the prosecution a lot of work.  Unfortunately, the criminal justice system is not designed to reward people for confessing.  As a general rule, anything you say to an officer can and will be used against you.  Confessions simply limit the options and all but ensure a conviction.

On the other hand, defendants also have attorney-client privilege when speaking alone to an attorney.  The privilege means that when speaking to an attorney in an official lawyer-client relationship, anything you say to the attorney cannot be repeated without your consent.  The privilege does not apply if other people are present during the conversation.  Attorneys become the vaults for all the secrets.  Any attorney who violates the attorney-client privilege can have his or her license to practice law taken away.  The only time an attorney can disclose privileged conversations, other then when the client consents to disclosure, is when a client threatens to hurt or harm someone.

I’ve seen several cases with little to no evidence other than the defendant’s confession.  As long as the police properly read Miranda warnings, the confession is going to be admitted in trial.  It doesn’t matter if the police initially messed up, if the defendant confessed it’s hard to convince a jury he or she falsely confessed.  False confessions do occur, but they are extremely rare.  Most of the time confessions are made by people in the heat of the moment without thinking ahead.  If you have this overwhelming guilt and you feel you must confess to someone, confess to your lawyer or a priest, not the cops.

“No Face, No Case” does not apply to Violation of Probation Cases

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When I was an Assistant Public Defender, I went to the jail to visit a client charged with Domestic Violence Battery.  I explained that because of Crawford v. Washington and the rules of evidence concerning hearsay, the State could not prove a case against him without the alleged victim’s testimony in court.  He responded by saying “no face, no case.” “No face, no case” means that no statements of a witness, including statements to law enforcement, can be admitted without the witness appearing in court to testify.  This means that in most cases involving domestic violence, unless there is an independent witness to the criminal activity, the State cannot prove the case without the victim’s testimony in court.  Most of my clients can clearly understand “no face, no case” but they do not understand that the same rules do not apply to violation of probation hearings.

To begin to understand why violation of probation hearings are different from criminal trials it is important to first understand the rules concerning probation.  Judges are not required to sentence offenders to probation.  Probation sentences are generally granted to people with limited or no criminal history, where rehabilitation is the ultimate goal, and to enforce restitution to the victim of the crime.  Probation sentences are viewed as a privilege and not an absolute right.  See Bernhardt v. State, 288 So.2d 490 (Fla. 1974).  When a defendant is sentenced to probation, the defendant waives some of the constitutional protections, including the right to search and seizure under the Fourth and Fourteenth Amendments.  Violation of probation hearings are held when necessary because defendants are still entitled to due process but not the same due process for the underlying criminal charge.  If a defendant admits a violation of probation or is proven to have violated probation, the defendant can be sentenced to the same penalties he or she faced before the probation sentence was ordered.

Violation of probation hearings are different from trials for new crimes because the burden of proof is much lower. For violations of probation, the State is required to prove a willful and substantial violation by the “greater weight of the evidence” and not required to prove the violation beyond a reasonable doubt.  See Blackwelder v. State, 902 So.2d 905 (Fla. 2d DCA 2005).  Greater weight of the evidence basically means the State must prove the case by 50.01%.  This lower burden of proof makes it much easier to prove a defendant has violated probation.

The second difference is that Crawford v. Washington does not apply to violation of probation hearings.  Crawford v. Washington specifically address the rights of a defendant to confront a witness who testifies against him by allowing a defendant to challenge out-of-court statements.  Crawford v. Washington, 531 U.S. 36, (2004).  Under Crawford, an out-of-court statement cannot be admitted in trial unless the defendant had a prior opportunity to cross-examine the declarant (person who made the statement).  Id.  However, the Florida Supreme Court has ruled that a defendant does not have the same rights of confrontation for a violation of probation hearing. See Peters v. State, 984 So.2d 1227 (Fla. 2008).  Out-of-court statements of an unavailable witness can be admitted in a violation of probation hearing without a violation under Crawford.

The third and main difference is that hearsay is admissible in violation of probation hearings.  Hearsay is any statement made out of court that is offered to prove the truth of the statement.  Fl. Stat. 90.801.  This means any statement made outside of court, including statements to police as well as 911 calls, with very limited exceptions, are hearsay.  Although hearsay is admissible in a violation of probation hearing; the hearsay statement cannot be the sole evidence to prove the violation.  See Cuciak v. State, 410 So.2d 916, 918 (Fla. 1982).  As long as there is evidence in addition to the hearsay statement that is presented in the violation of probation hearing, a defendant can be found guilty of a violation.  In domestic violence cases, a defendant can be found guilty based on the hearsay statements of the alleged victim (“he hit me”) and the officer’s testimony of an injury consistent with the hearsay statement.  An example is where the officer testifies that the victim told the officer she was choked by the defendant and the officer saw bruises around her neck that were consistent with someone being choked.  See Russell v. State, 982 So.2d 642 (Fla. 2008).  The officer can also testify to the alleged victim’s behavior and appearance to help the State prove a violation of probation.

It seems wrong that the State can prove a violation of probation for a domestic violence battery without testimony from the person who was allegedly battered; however, that’s exactly what is happening in Florida.  Even if the domestic violence charge results in a not guilty verdict or is dropped for failure of a witness to participate, the State can still proceed with the violation of probation as long as an officer can testify to injuries or demeanor consistent with the alleged victim’s statement.

South Carolina Killing

I’m so disgusted after viewing the video of the shooting of Walter Scott by Officer Michael Slager.  The killing of yet another unarmed man is not shocking.  I am mostly shocked by the initial statement made by Slager’s attorney.  Before knowing a video existed, Slager’s attorney said the two men were wrestling over the taser when he feared for his life and shot him.  After watching the video of the incident, Slager’s attorney withdrew from his case.  Clearly Slager lied to his chief during the investigation and lied to his attorney.  

I am constantly asked why I defend people, even the ones I know are guilty.  My response varies but generally my job is made easier by the lies of the officers.  They often lie about things that don’t even matter so I know they lie about the facts of their encounters with my clients.  They lie about harassing people without reason, reasons they pull people over, lie about how they obtained evidence, lie about beating people, and now they lie about killing people.  Even when they get caught lying, they often don’t have any consequences.  

It’s sad that we live in a time where we have to police the police.  It’s sad that many officers think “protect and serve” can and should be done by any means necessary.  It’s sad that Slager’s lies would have gone unnoticed without the video of the shooting and attempted cover up. Prosecuting Slager is a step in the right direction but not a solution to the overall problem of lying cops who hold peoples’ lives in their hands. 

There’s No Objection for Racism

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There are objections for hearsay, speculation, unresponsive comments, and irrelevant questions and comments.  There is not a clear objection for a purely racist comment.  I didn’t even think of that until my trial last month on a drug case in Lee County, FL. Maybe we do need to consider adding a new objection.

During the trial last month, I had a first for my career in criminal defense.  The detective in the case said that you can go to any house in the Dunbar area and buy crack cocaine.  For those who don’t know, “Dunbar” has become code for anything black that is viewed in a negative light in Fort Myers, FL.  The detective’s statement essentially means that he believes all black people in Dunbar are drug dealers.   I was so shocked and appalled by his statement that I didn’t know how to react.  It’s not like there’s an objection for a racist, incorrect statement.  Of course the prosecutors didn’t object or ask to correct this racist statement either.  We all just sat there while the racist detective smiled; pleased with himself and his work at targeting black males for prosecution.

After the trial I researched the issue even more.  I found there’s no case law in Florida about racist statements unless the defendant is being prosecuted for a hate-crime.  There is case law about racist jurors.  There is case law about removing an unfair judge on the case.  There’s no guidance on what to do when an obvious racial and slanderous comment is made under oath as if it was true.

There’s so much research about the inequalities in the criminal justice system that seem to be racially motivated.  There’s also research about how the biases of law enforcement affect how they treat suspects and defendants; however, there’s no guidance of what to do when those biases flow into the courtroom and taint the jurors deciding the case.  I have a plan for this case but no answer on what to do if/when this is a recurring problem.

I recently received the transcript from the above-referenced trial. The actual language is as follows:

State Attorney:  And is it normal for — based on your training and experience — normal for people in this part of town to just walk up to each other’s houses and purchase drugs?

Detective:  Yes

….. several questions later

Janese Caruthers:  And I believe [the State Attorney} asked you, is it common in the Dunbar area for people to just go up to someone’s house and say, hey, I need some drugs?

Detective:  Yes.

Janese Caruthers:  And you said that is common, correct?

Detective:  Yes.

…..

Prenuptial Agreements

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I thought prenuptial agreements were mainly for celebrities or wealthy people with a lot of assets until I researched more about them during my transition to handling family law matters.  I now see that pre-nuptial agreements are more like wills than divorce insurance.  The laws of each state have very specific provisions for distribution of property, time-sharing (custody), and child support should the marriage end in divorce in the same way that each state has laws of distribution of property after death.  Wills allow each person to decide for something different than what would ordinarily occur.  Pre-nuptial agreements give the parties more control to decide what should be done if a divorce occurs.

I think people have not fully considered the possibilities for prenuptial agreements.  Here are some possible uses of prenuptial agreements.

  1. Selection of law(s) to apply.

The laws for property distribution differ greatly in each state.  If you move frequently and prefer the laws of one state (or country) over another this allows you to control which laws will be applied.  If the marriage should end, the judge of the state where the divorce is filed will apply the laws of the state chosen in the prenuptial agreement.

  1. Discussion of finances before marriage.

Drafting a prenuptial agreement requires both parties to fully disclose their assets and liabilities (debts) or the prenuptial agreement can be challenged.  Before marrying someone, it is important to know what assets and liabilities he or she has and how they will be handled during the marriage.  Some couples skip this crucial step and simply hope for the best.  It is important to have an honest and frank discussion about finances prior to the marriage.

  1. Discussion of expectations during the marriage.

I recently read a court opinion where the wife initially waived any right to receive alimony if the parties divorced.  The wife was challenging the prenuptial agreement because she decided to quit her job and stay at home to raise the children.  She was working full-time when the parties married and she assumed that alimony would not be necessary because she anticipated having her own paycheck to survive if the parties divorced.  Having a frank and honest discussion of the roles each party will play during the marriage can sometimes only happen when you discuss and prepare for the worst scenario.  Having an honest discussion up front could have save them time and money in litigation.

As you can see there are reasons beyond simply planning for a divorce that make prenuptial agreements a good idea.  If you are engaged or in a serious relationship you may want to consult an attorney to see if a prenuptial agreement is a good idea for your situation.

Racism Hurts

Gardner2I wanted to write something about the Michael Brown and Eric Gardner verdicts; however, I didn’t want to comment about the actual cases. We may never know what really happened during the Michael Brown incident. Eric Gardner was different because the entire incident was recorded but the result was still the same. Both cases says that it’s ok if cops automatically fear black males and it’s ok to use excessive force based on that fear. Neither case is ok because the cops probably would have acted differently if they were dealing with white males. The cops who beat Rodney King were indicted yet the cop who killed Eric Gardner will not face prosecution. Racism hurts and it’s hard to keep that anger and pain contained.
I experience racism for the first time during college. It wasn’t a violent incident. I did not involve police. It involved a professor telling me I was mentally incapable of completing his class. Until that moment, I thought racism was something that ended when my parents graduated college and obtained the great jobs which paid for my racist experience. In that moment, I learned that racism is still alive and well.
That one experience changed my outlook on so many things. I was angry, frustrated, confused, angry, hurt, sad, shocked, angry, depressed, resentful, and angry. There was so much anger and I didn’t quite know how to handle it. I screamed a lot. I listened to angry music. I worked out to burn off some of the energy. I talked to lots of people on campus. I instantly remembered exact quotes from the Autobiography of Malcolm X (before he completed his hadjj) and would recite them frequently to my white friends. I read a lot. I founded and got approval for a course concentration in African American Studies to help educate my peers about the history and culture of people who don’t look like them. I still was angry. I displayed a “black power” fist as I walked across the stage at graduation.
It’s been over 12 years since my racist experience and I’m still angry. I hated knowing that people will make assumptions about my abilities based solely on the color of my skin. I hated realizing that all the work of the 1960s to change the laws still didn’t do anything to change the opinions and actions of people. I hated that I couldn’t do anything to change the way people feel about racial disparities. I hated that I couldn’t hate the guy who thought I was inferior to him. I couldn’t hate him; I could only pity him for being so ignorant.
I can’t begin to imagine the anger of people who have experienced racism in a violent, direct way. I can’t express the anger for the people who have been wrongfully arrested, beaten, harassed, and targeted simply because of the color of their skin. I mourn for the families who lost their loved ones at the hands of the police. I can’t imagine the pain the mothers, fathers, sisters, brothers, cousins, aunts, uncles, grandparents, and friends of people who have been killed by police must feel. During my incident I was in a safe environment surrounded by love and virtually void of anyone who would challenge me in a hostile way as I processed my feelings. Who knows how I would have reacted if I was facing a firing squad and army tanks while I simply held a sign and marched with my peers. I can’t chastise them for how they choose to express their anger and I certainly won’t judge them if they act in ways that aren’t “peaceful.”