Loading...
HomeMy WebLinkAboutItem #90 - Discussion Item.0110) 001 � CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM To Honorable Members of the City Commission Robert F. Clark Acting City Attorney March 19, 1981 r LF Report on George F. Knox Proceedings This will confirm that the effect of yesterday's Circuit Court Ruling, absent an appeal, is to place Mr. Knox in the same status as he was the day before the Information was filed against him. A complete, accurate report on the course of the proceedings is reflected in the attached memoranda prepared by a staff member of this office at my request. Mr. Rossano, A.ssistant City Attorney, was assigned to attend the pro- ceedings as they occurred and render a summary report on the same. After the City Commission Meeting yesterday, I telephoned Mr. Knox, who informed me that he would resume his duties on Monday, March 23, 1981. RFC/rr cc; George F. Knox, Jr. City Attorney Richard L. Fosmoen City *tanager n C+ � C 0` CITY OF MIAMI. FLORIDA r� INTEROFFICE MEMORANDUM To DATE FILE Robert F. Clark March 19, 1981 Acting City Attorney SUBJEC 1 State ex rel George F. Knox, Petitioner v. Honorable Robert M. Deehl, etc., Respondents FROh+ gIFFPINrFS Circuit Court Case No. 81-030EX Robert Rossano Assistant City Attorney LNCLosunrs I attended the oral argument for the final hearing in the above subject case. The Petitioner was the first to argue. He followed the content of his Reply, see my memo of March 18, 1981. In addition, he advised the Court that the definiteness which must be inherent in every criminal statute must be defined by the Legislature not by the Courts in an attempt to save any inherently unconstitutional statute. The Petitioner also used several examples to indicate how overbroad the witness tampering statute was. His first example was that of a newspaper editor telling one of his reporters not to reveal a confidential source. IIe also used a parent -child example, as well as a priest parishioner. The State also followed the arguments presented in its Response. In addition, the State argued that*the witness tampering statute, like the robbery statute is a crime which is malum in se and therefore, the statute need not specifically delineate a corrupt intent. The State also pointed out that the Petitioner conceded that if the statute required the proving of corrupt intention by the State, then the statute was constitutional. The State argued, as it did in its Response, that based on the common law, the requirement of corrupt intent was inherent in the statute. On rebuttal, the Petitioner argued that laws are written for the people. He pointed out that the terms of a statute should be understood by the common people, and that they should not need to rely on judicial interpretation when trying to ascertain the meaning of a statute. r , Robert F. Clark Page two March 19, 1981 Circuit Judge N. Joseph Durant ruled that the statute was unconstitutional. He will enter a rule absolute pro- hibiting County Court Judge Robert M. Deehl from trying the Defendant for a violation of the statute. Judge Durant also refused to enter a stay of the proceedings to toll the running of the speedy trial rule pending the outcome of the appeal because he felt any appeal from his ruling would be without merit. TP004 -A RR/wpc/l CITY OF MIAPAI, FLORIDA INTER -OFFICE MEMORANDUM To Robert F. Clark Acting City Attorney r R.)Y Robert Rossano Assistant City City Attorney ()A I March 18, 1981 "` F State ex rel. George F. Knox, Petitioner V. Honorable Robert M. Deeh1, etc., Respondent Circuit Court Case #81-030EX I have had an opportunity to review the Petitioner's reply in the above subject case. The Petitioner begins his memorandum by stating that Judge Durant had the requisite jurisdiction to issue the Writ of Prohibition because the jurisdiction of the lower Court ceased to exist once the witness tampering statute was found to be unconstitutional. Next, the Petitioner argues that the Court would create more confusion if it attempts to save the statute by judicial reconstruction. The Court would in effect be trading over - breadth for vagueness. The Petitioner goes on to explain that the verb "endeavor" as used in the statute has a common legal meaning which is to exert effort toward the attainment of an object. He goes on to object to the State's attempt to ascribe uncommon meaning to it. He then demonstrates how sub- stituting the definition suggested by the State to other statutes which contain the word "endeavor" changes the meaning of those statutes drastically. The Petitioner then argues assuming arguendo that the word "endeavors" expresses a manifest criminal intent, the challenged statute is still overbroad. The Petitioner states that the inclusion of the modifier "or" in the statute forces the Court to review each part of the statute when determining its constitutionality. The various subparts of the statute use the terms "endeavor", "attempt", and "otherwise causing." Petitioner suggests that the use of the latter two terms encompasses all behavior including incident condition which ultimately causes a witness to withhold evidence. Next, the Petitioner argues that the common law and model penal code precedence do not legitimize the statute. The Petitioner states that the common law rule is incompatible rM Robert F. Clark Page two Harch 18, 1981 with American and Florida jurisprudence and constitutional protections. As evidence of that, he advises that there are no reported Florida cases concerning prosecution of the common law crime of tampering with a witness. The Petitioner then advises that twenty-seven (27) states, which have utilized the model penal code version of the witness statute, have amended it to eliminate ambiguities inherent in the original version. The version under question in the instant suit is a unique one. The Petitioner's next argument is that reading the statute as a whole does not reveal that the State must prove criminal intent on the part of the Defendant as the State has argued in its response. The next argument is that the suggestion by the State to read the statute in pari materia is actually an attempt to incorporate the requirements of Florida Statute Section 90.501 (part of the evidence code) into the statute by reference. The Legislature has not suggested such an in- corporation, therefore, the privileges contained in Florida Statute Section 90.501 played no part in the interpretation of Florida Statute Section 918.14. The Petitioner notes that the two statutes concerned are different subjects and that the witness tampering statute was written six (6) years before the evidence code which the State argues it incorporated. Finally, the Petitioner argues that the Defendant, as an attorney, has a responsibility to advise persons of their rights and to encourage them to pursue the course of action which is in their best interest. The statute in question de- prives the Petitioner and all lawyers of due process because they can be prosecuted and convicted for doing that which is required by their profession. Oral argument will take place at 1:30 today. advised. RR/wpc/1 I will keep you CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM I TO FROM Robert F. Clark Acting City Attorney Robert Rossano Assistant City Attorney DATE March 17, 1981 rILE S,B1E State ex rel. George F . Knox Petitioner v. Honorable Robert M. Deehl, etc., Respondent ,,,,,V(N,,,Circuit Court Case #81-030-EX f NCLO, U RF4 I have had an opportunity to review the Response submitted by Ira N. Loewy, Assistant State Attorney on behalf of the Respondent, the Honorable Robert M. Deehl. The Respondent begins by adopting the arguments and citations of authority presented in his Motion to Dismiss, see my memorandum of March 2, 1981. You will remember that those arguments concern whether Circuit Judge Durant had juris- diction to issue a Writ of Prohibition where the Petitioner raised questions concerning the constitutionality of a Statute he was charged with despite the fact that the Petitioner had adequate appellate remedies if he eventually lost at the trial level. Judge Durant determined that his issuance of the Writ was clearly within the bounds of his discretion. The Respondent then argues that Florida Statute Section 918.14(1)(b) was not unconstitutionally overbroad. He argues that the burden is upon the person who assails the legislative enactment to clearly demonstrate its invalidity. There is a strong presumption of constitutionality inherent in any statutory analysis. Doubts as to the validity of a Statute must be resolved in favor of its constitutionality. The Courts must avoid a holding of unconstitutionality if the Statute may be given a fair construction that is con- sistent with the Federal and State Constitution, as well as the legislative intent. Next, the Respondent framed the underlying issue as follows: Thus, the constitutional issue presented to this Court boils down to the basic question, does Section 918.14(1)(b), Florida Statutes (1979) include a criminal intent? The Respondent explains that it is the Petitioner's position that the use of the phrase "to endeavor or attempt to induce or otherwise cause a witness to . . ." in Florida Statute 918.14 is overly broad because it prohibits any person from advising anyone else of his constitutional rights. r0 Robert F. Clark Page two march 17, 1981 The Respondent likens Florida Statute Section 918.14 to the Robbery and Theft Statute which has recently withstood constitutional attacks despite the fact that it lacks an expressed directive that the perpetrators intent be unlawful. He goes on to state that the term "endeavor" has been defined by the Supreme Court of Florida to mean an overt act manifesting criminal intent. The Respondent explains that: Criminal intent is an element of the crime of tampering with a witness and must be established by the State in order to ob- tain a conviction. Next the Respondent notes that the gist of the common law offense concerning witness tampering was the willful and corrupt attempt to interfere with and obstruct justice. The Respondent advises that Florida Statute Section 918.14 was based upon the wording of the A.L.I. Model Penal Code, which also excludes any specific reference to intent. The Respondent also argues that the Statute is not unconsti- tutional because certain individuals are allowed to give ad- vise to witnesses without fear of criminal prosecution because of the existence of statutory privileges. Finally, the Respondent sums up his arguments by stating: In those situations where it is the witness who has a privilege, such as the constitu- tionally protected privilege against self- incrimination, one who merely advises the witness of his rights is not guilty of violations of the statute, unless the State can prove that the advice was accompanied by the criminal intent to induce that wit- ness to invoke his privilege. I will provide you with a summary of the Petitioner's reply as soon as possible. RR/wpc/1 All CITY OF MIAMI, FLORIDA INTEROFFICE MEMORANDUM Tp Robert F. Clark VATF March 2, 1981 "E Acting City Attorney ,URA, 1 State of Florida v. George F. Knox, Jr., Esq. PFnf.-41 1 r i+r N1. 1 4 Robert Rossano Assistant City Attorney Pursuant to your assignment of February 17, 1981, I here- by submit this memorandum updating the events concerning the above subject action. On February 27, 1981, Circuit Judge N. Joseph Durant heard argument by Assistant State Attorney Ira Loewy on behalf of County Judge Robert M. Deehl, to dismiss the Writ of Prohibition granted by Judge Durant. Mr. Loewy argued in the alternative that (1) Judge Durant lacked jurisdiction to entertain the Motion for Writ of Prohibition and/or (2) If the Court had jurisdiction, the circumstances sur- rounding the litigation were insufficient for the granting of an extraordinary Writ. Among the policy arguments made by the State was that if a trial on the merits were to take place and a verdict of acquittal was entered, the constitutionality of the Statute would be moot; and that if a guilty verdict was entered an appeal challenging the constitutionality of the Statute could still take place. In addition, an argument was made that the prosecutions' case was centered around the testi- mony of one witness and that since the losing side will appeal the Judge's determination concerning the legality of the Statute, that if the State were to ultimately pre- vail, the trial in this matter would not take place for several years. Mr. Loewy was concerned with the availa- bility of that witness. Counsels for George Knox argued that the Judge had juris- diction based on their Motion for Writ of Prohibition, as well as certiorari from Judge Deehl's ruling. Defense counsels argued that the taxpayers should not be forced to pay for what promises to be the longest misdemeanor trial in the history of the State only to have an Appellate Court overturn any ollA Robert F. Clark Page two March 2, 1981 guilty verdict which may result. Finally, they argued that the State Attorney's Office did not seem concerned with the availability of their witness when they waited ten (10) months for filing the charges against Mr. Knox. Judge Durant denied the Motion to Dismiss the Writ. He allowed the State to raise the jurisdictional issues again on March 10, 1981, when complying with his Order to Show Cause. I will keep you advised. W$6�� RR/wpc/l r CITY OF MIAMI. I-LORIDA INTER -OFFICE MEMORANDUM *o Robert F. Clark: Acting City Attorney `RON. Robert Rossano Asistant City Attorney DAIt February 24, 1981 rILE sus�r- State of Florida v. George F. Knox, Jr., Esquire $41 FF F,F N, F F NGI Or,I'Pr' Pursuant to your assignment of February 17, 1981, 1 hereby submit this memorandum updating the events concerning the above -subject action. On February 17, 1981, County .Judge Robert M. Deehl, denied a Motion to dismiss the charge on grounds that the State Statute concerning witness tampering, Florida Statute Section 918.14, is so broad that it is unconstitutional. Judge Deehl also denied a Motion to Suppress a tape recording of the telephone conversation in ques- tion. The trial was scheduled for Monday, February 23, 1981. On February 18, 1981, counsel for George F. Knox, Jr., Esq., petitioned the Circuit Court for a Writ of Prohibition, to postpone the trial pending the outcome of an appeal testing the constitutionality of the witness tampering statute. Circuit Judge T. Joseph Durant granted the Writ. Judge Durant entered an Order to show cause why Florida Statute Section 918.14 should not be held unconstitutional. The State Attorney's office was given until March 10, 1981 to comply with that Order. Opposing counsel will then be given five (5) days within which to reply. I will review the documents submitted by each side when available. I will keep you advised. UA RR/p It - - - -- __ - -- ..A TO FROM CITY OF t ,•:i, t (oR1f)n IN'TL-!t•UFFIc_ _�.1VT�/1NQUM Robert A. Rossano February 17, 1981 Eat( Assistant City Attorney •"'" County Court Proceedings - �-�- 2/23/81 v _ Robert F. Clark � r,trrrt Assignment Acting City Attorney You are assigned to attend the proceedings to be held Februnry 23, 1981. before County Judge Robert Deehl in connection with Mr. Knox's trial. Please prepare a detailed summary of the evidence presented by way of testimony and exhibits in order that a full written report may be promptly sent to the City Commission. RFC/rr