Federal Judge Arrested For Second Domestic Battery Should Resign Or Be Impeached

A federal judge on vacation was released on bail after being represented by the public defender’s office at his initial appearance for domestic battery this weekend. Beyond the fact that any judge – particularly a federal judge – should have the means and wherewithal to hire his own lawyer; one wonders what special treatment this judge is apt to receive.

Judge Kicks Justice

Judge Kicks Justice

Although every accused judge is entitled to be presumed innocent until proven guilty, public records found by the Atlanta Constitution establish that this is not the judge’s first time being targeted with the allegation of domestic battery though apparently it is his first battery or assault arrest. Perhaps he is not in the habit of battering each of his Federal Judge Arrested For Second Domestic Battery Should Resign Or Be Impeached wives, but at least one former wife claims he battered her as well.

I suppose the principle of law here should be that federal judges are more equal than others as the notion that all of us are equal under the law is rather quaint. Is it really possible in the American criminal justice system that a federal judge will be treated no differently than any other defendant charged with domestic battery? Will he be forced to commit himself to psychological counseling? Will he be told to have no communication with the victim, his wife? Well, as a matter of fact, there was no condition in the bail to keep him away from the victim only a condition “to not have violent contact” with her.

Should the judge spend his next vacation here in Clearwater, Florida as we all hope he will, he’ll find that we have a special domestic battery court. But after arrest, first he’ll have to deal with the typical Pinellas County bond requirements which include having no contact whatsoever with the victim, meaning no emails to her, no phone conversations and of course no co-habitation even if children are involved. Maybe the law in Georgia is vastly different, but it does make one wonder why the federal judge merely has to have no violent contact with his favorite victim?

Although the idea of the Pinellas domestic battery court to identify batterers and provide psychological remedies to prevent assaults and batteries is laudable, too often the presumption of innocence is turned on its head when those arrested are presumed guilty and forced to either accept the gentle offer of treatment laced with possible dismissal of the charges or face time in jail if convicted. Should the judge choose Florida for his next vacation I am prepared to provide him with a federal judge criminal law discount should he decide to hire a private Clearwater criminal defense attorney rather than depend upon the stressed public defender system. He may need special help as under federal law any domestic battery is counted as a violent offense. Since the discount applies to former federal judges, perhaps he’ll take this into consideration for what course his life should take in the future. Clearly this man should resign his position of trust; if not, he should be impeached as he’s not fit to sit in judgment of others.

HOW TO PERSUADE THE STATE ATTORNEY’S OFFICE TO WITHDRAW AN OLD ARREST WARRANT IN FLORIDA

It’s not unusual for someone who has lived, worked or merely vacationed in Florida to find years later that there exists a pending active arrest warrant. No wonder the official Florida motto is – the rules are different here. Often the pending arrest warrant is for some alleged nonviolent crime such as theft, worthless check or failure to pay for lodging, gas or food. 
In Florida arrest warrants are often issued after people leave without them knowing that they allegedly committed a crime, so it's important to do whatever is necessary to have the warrant withdrawn.
Sometimes the arrest warrant is for a violent event that did not result in immediate arrest such as assault, battery, disorderly intoxication or an altercation at a bar. The typical result is that a defendant only learns of the arrest warrant by accident possibly years after the alleged event. And it’s worth knowing that an arrest warrant in the computer system will give every officer the right to arrest you until the warrant is withdrawn.

What should someone do when confronting an allegation of criminal conduct from years earlier when recollection of the events with possible defenses have vanished? Before you turn yourself in on an arrest warrant it’s important to get some advice from a defense lawyer. In essence the question leads directly to the answer. If a defendant finds it difficult to defend a case, how will Florida prosecutors be able to successfully pursue a conviction? Witnesses may have disappeared, victims may have moved, business may have gone bankrupt. Older arrest warrants may be available to the Clearwater Clerk of Court in Pinellas only on microfilm. 

It’s important for your defense lawyer to examine the facts and circumstances of the underlying facts. After an investigation of the factual allegations documented within the arrest warrant, then it’s necessary for your lawyer to examine the arrest warrant itself and the charging document known as the information for clues as to whether police and prosecutors made a good faith effort to timely pursue the arrest warrant when it was freshly issued.

The more stale a case has become the more difficult the case will be to successfully prosecute. After a thorough examination of every weakness of the arrest warrant, your defense counsel will contact prosecutors at the Pinellas County Attorney’s Office to persuade them that the case is unlikely to be won at trial. If prosecutors agree that too much time has passed to pursue the case, then they will issue a document known as an administrative nolle prosequito to the Pinellas County Clerk’s Office which withdraws the outstanding arrest warrant. This document is typically filed if it can be proven that there has been no procedural activity on the case for at least a period of three years.




FLORIDA JUDGE CHALLENGES A PUBLIC DEFENDER TO FIGHT THEN SUCKER PUNCHES HIM IN COURT

A Florida judge had an unusually harsh response to a public defender’s request for speedy trial, “You know if I had a rock I would throw it at you right now, stop pissing me off. If you want to fight let’s go out back and I’ll beat your ass.” Soon Judge John Murphy and the public defender could then be heard having at it in a loud altercation outside of the courtroom video camera. It’s unknown if the judge also has plans to fight the public defender’s client or any others in attendance, but he has been accused of sucker punching the hapless public defender.

Could the judge be prosecuted and sent to jail or will he merely face a complaint for being abusive, rude and intemperate? While patiently waiting for his call to hire me as I calculate what kind of fee discount to give a lunatic judge, let’s look at some of his possible defenses to the charge of battery. The judge could go deep in arguing that any lawyer deserves to be taken to the woodshed when asking for something as unlikely to be granted as speedy trial requirements in Florida. After all, unlike a good fair fight, asking for a client’s speedy trial is a known wast of time.  

Of course, the judge could argue that this is a clear case of mutual combat. In accepting the formal challenge of a fight, the public defender should not be viewed as a victim but as a co-combatant. Perhaps everyone who suffers with the judge on a daily basis should be presumed as co-combatants.

Yet in other cases involving bar room fights rather than courtroom tussles, police often arrest both parties not only for battery but for disorderly conduct. And the police likely would also investigate both combatants for intoxicating substances. Is it possible that our careless judge became intoxicated from wearing a black robe for too long? Or maybe the judge just doesn’t like trials. In Judge John Murphy’s application filed with the State of Florida to be named a judge, he wrote that he had only had twenty-five jury trial over his entire career.

Finally, the judge could explain in mitigation of sentencing that he was merely standing his ground with fists rather than Florida’s more traditional lawful lethal weapons. No, his best defense is to set his battery case for a trial as soon as possible – after all, this is his career – to let a fair minded American jury decide his fate before the Judicial Qualification Commission gets the facts. Unfortunately for that to happen he’ll need to find a defense lawyer not only willing to ask for a speedy trial, but ready to fight some fool judge to get it. 

CAN VICTIMS FORCE THE DISMISSAL OF CRIMINAL CASES BY FILING A REQUEST NOT TO PROSECUTE IN FLORIDA

Clearwater criminal defense attorneys are often asked if a victim has the right to stop a criminal case from proceeding in the State of Florida. 

Here’s a typical question I recently received from a man charged with Domestic Violence against his wife.

This courtroom in Tampa Bay Florida is where domestic battery cases are prosecuted.My wife signed a request not to prosecute two days after I was arrested by the Pinellas County Sheriff’s Department. Since my wife no longer wants to proceed against me on the domestic battery case, how can the state still prosecute me? 

Neither of us was even injured. They arrested me because I admitted spitting on her during a heated argument before she called the police. My employer will not let me go back into work until this case is resolved without a conviction. What can I do to get these charges dropped?

The law in Florida forces officers on the scene of an established domestic violence case to make an arrest even if the victim does not want to prosecute. 

But could mere spitting (Oops! Sorry, didn’t mean for that spray to hit you as I speak.) really be a criminal act? Any unwanted intentional touching of one person against the will of another person is a battery. Spitting is considered an unwanted touching. When the husband admitted that he spit on his wife, he gave the Tampa Bay investigating officers reason to believe that he’d committed a domestic violence battery. 

Here the victim by signing a request not to prosecute has unambiguously demonstrated to prosecutors that she does not want to move forward with this prosecution. Yet the State of Florida presumes that Florida itself is also a victim in every criminal case. In a sense it must be because it is the State of Florida that pursues or fails to pursue every criminal case even those such as drug crimes which have no apparent victim.

Therefore law enforcement is not prohibited from prosecuting any Defendant just because the person who was harmed does not want to prosecute. However, a smart prosecutor who understands that he may have to prove the case at trial will take the request not to prosecute into consideration with other facts and circumstances of the case. An effective Tampa Bay Defense Lawyer will do everything possible to persuade prosecutors that this nonviolent act should be dismissed, because the shameful arrest itself has served as a sufficient punishment and deterrent. 

WHY MUST OFFICERS INVESTIGATING DOMESTIC VIOLENCE IN FLORIDA ALWAYS MAKE AN ARREST

Your favorite Clearwater criminal defense lawyer was recently asked this question about domestic violence:

I was arrested for a Battery against my girlfriend in Tampa Bay, Florida. We were both fighting not just me. We have a child together. We were going to get married, but put it off until this is behind us. She has signed a Request Not to Prosecute. I’m wondering if the State of Florida decides not to prosecute me can they still bring the charges back up in the future if she changes her mind and wants me prosecuted? How long do I have to wait to be certain that charges won’t be filed? If charges are filed against me what will happen?

Abbasi's Painting of Two Lovers so tranquil and languid before the domestic violence of a battery or assault which in Tampa Bay, Florida could be resolved without either lover going to jail.
Reza Abbasi, Two Lovers, 1630

The first consideration for law enforcement is the safety of your girlfriend as well as the child. Under Florida law whenever domestic violence is alleged, officers by law must make an arrest of someone in the home if any evidence of a battery or assault is found. Why was this enacted?
Because more officers are killed while investigating domestic violence than in any other type of investigation they undertake. 
Think about that, more than in burglaries, robberies and grand thefts. When officers are called to any domestic violence situation they are well aware of the risks as well as the fact that domestic violence affects a large portion of the American population.
Recent domestic violence statistics establish that the problem is pervasive with nearly 25% of women and 7% of men being the victim of an assault or battery by a spouse, co-habitating partner or date. 
When any crime is committed in Florida, the State of Florida views itself as being an interested party. In practice this means that even when a victim does not want to prosecute a case, the State of Florida can proceed with prosecution. Other than the statute of limitations there is no legal limit to how long prosecutors can take to make a filing decision.
If charges are filed against you and if you don’t have any prior criminal record, then you may be able to apply for a diversionary program such as Pretrial Intervention where the charges will eventually be dismissed. Tampa Bay recently established a new Domestic Violence Court in Pinellas where the focus will include counseling with Batterer Intervention Programs rather than simply giving jail.

RESOURCES FOR SEXUAL BATTERY CASES IN THE TAMPA BAY AREA

Investigations After an Arrest for Sexual Battery in The Tampa Bay Area

It’s important to remember that typically (though not always) within 21 days of the arrest for any crime including sexual battery in the Tampa Bay area; the prosecutors at the State Attorney’s Office will make an important decision on whether to formally file charges against a potential Defendant. 
An effective strategically minded criminal defense attorney hired during those 21 days should do the following:
  1. Present important evidence to the State Attorney’s Office that establishes innocence.
  2. Provide information on new witnesses and establish possible problems with previous witnesses.
  3. Prepare evidentiary motions when law enforcement has failed to meet their constitutional duties.
  4. Protect the client from the prospect of prison, loss of community reputation and media hysteria.
The filing decision can be one of the most important events that will occur in the case. When contradictory evidence is immediately brought to the attention of prosecutors, showing them that they may lose at trial if they proceed, then and only then is it possible that charges may be dropped. Sex Crimes Criminal Defense Attorney in Clearwater, FL as well as Tampa, Hillsborough County and Pinellas County.
Sexual Battery or Rape Allegations at College Campuses in Tampa and Florida
The number of sexual battery allegations has risen dramatically on college campuses throughout Florida including the University of Tampa and the University of South Florida. Recent studies based on a survey of 6,129 college students enrolled at 32 educational institutions in the United States have shown shocking statisics including (see the University of Florida Police Department web page with more information including these important statistics at University of Florida Police Department ): 
  • One in eight college women report having been raped while 54% of women surveyed reported being the victim of some form sexual abuse;
  • 84% of those women knew their assailant prior to the attack; and
  • 57% of those rapes happened on a date.
Contact an experienced criminal defense attorney immediately after learning of an accusation of sexual battery by a college student from Tampa in HIllsborough County, Bartow in Polk County, New Port Richey or Dade City in Pasco County or St. Petersburg or Clearwater in Pinellas County, Florida.
Definitions in Florida’s Sexual Battery Statute as Found in the Florida Statutes (see
  • Sexual Battery – Florida law defines the term “sexual battery” to mean vaginal, oral, or anal union with or penetration by the sexual organ of another or the vaginal or anal penetration of another by any other object. If the touching was done for any bona fide medical purpose, then Florida law specifically excludes that conduct from the definition of sexual battery.
  • Victim of Sexual Battery – Florida law defines the term “victim” to mean any person who has been the object of a sexual offense such as sexual battery or aggravated sexual battery.
  • Sexual Battery Offender – Florida law defines the term “offender” to mean any person accused of a sexual offense in violation of a provision of this chapter such as sexual battery or aggravated sexual battery.
  • Consent – Florida law defines the term “consent” to mean any voluntary, knowing or intelligent consent. The definition of consent does not include any “coerced submission” that occurs because of the failure by the alleged victim to offer physical resistance against the offender.
Florida’s Penalties for Sexual Battery (Statutes & Constitution :View Statutes : Online Sunshine )
Florida law provides for certain punishments or penalties based on several factors including the age of the victim, the age of the offender, whether the offender used any actual physical force that was likely to cause any serious personal injury, and whether the offender used or threatened to use a deadly weapon.
The punishments for sexual battery range from a capital or punishable by life penalties to first, second, or third degree felony penalties. Under the Junny Rios-Martinez, Jr. Act of 1992, any person who is convicted of committing a sexual battery after October 1, 1992 is not eligible for basic gain-time under Florida Statute Section 944.275.
794.05 Unlawful sexual activity with certain minors.— (see Statutes & Constitution :View Statutes : Online Sunshine)

(1) A person 24 years of age or older who engages in sexual activity with a person 16 or 17 years of age commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s.775.084. As used in this section, “sexual activity” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another; however, sexual activity does not include an act done for a bona fide medical purpose.
(2) The provisions of this section do not apply to a person 16 or 17 years of age who has had the disabilities of nonage removed under chapter 743.
(3) The victim’s prior sexual conduct is not a relevant issue in a prosecution under this section.
(4) If an offense under this section directly results in the victim giving birth to a child, paternity of that child shall be established as described in chapter 742. If it is determined that the offender is the father of the child, the offender must pay child support pursuant to the child support guidelines described in chapter 61.



Sexual Battery – Capital Felony under Florida Law

If the act of sexual battery is committed by an offender over the age of 17 against a person who is less than 12 years of age and the victim suffers from any personal injury to a sexual organ as a result, then the crime is punished as a capital felony under Florida law.
Sexual Battery – Punishable by Life Felony under Florida Law
  • If the act of sexual battery is committed by an offender who is 17 years old or under against a person who is less than 12 years of age and the victim suffers from any personal injury to a sexual organ as a result, then the crime is punished by life in Florida State Prison.
  • If the act of sexual battery is committed against a person who is 12 years of age or older without the person’s consent, and in the process of committing the act of sexual battery, the offender either uses actual physical force likely to cause serious personal injury or threatens to use or actually uses a deadly weapon, then the crime is punishable by life in Florida State Prison.
Sexual Battery – First Degree Felony (Statutes & Constitution :View Statutes : Online Sunshine)
It is a felony in the first degree, punishable by 30 years in Florida State Prison, if the act of sexual battery is committed upon the victim who is 12 years old or older without the alleged victim’s consent under the following circumstances:
Physically Helpless – When the victim is physically helpless to resist. Florida law defines the term “physically helpless” to mean being asleep , unconscious, or unable to communicate an unwillingness to participate in the act for any other reason.
Serious Personal Injury – When the offender coerces the victim to submit by using violence likely to cause serious personal injury on the victim or even threatening to use force when the victim reasonably believes that the offender has the present ability to execute the threat. Florida law defines the term serious personal injury to mean permanent disfigurement, permanent disability, great bodily pain or great bodily harm.
Retaliation – When the offender coerces the victim to submit by threatening to retaliate against the victim, or any third person, and the victim reasonably believes that the offender has the ability to execute the threat in the future. Under the Florida statutes for sexual battery or aggravated sexual battery, the term “retaliation” is defined to include any threats of kidnapping, false imprisonment, physical punishment, extortion or forcible confinement.
Mentally Incapacitated – When the offender, without the consent or prior knowledge of the victim, administers any intoxicating substance, anesthetic or narcotic which physically or mentally incapacitates the victim. Florida law defines the term “mentally incapacitated” to mean being temporarily incapable of controlling or appraising the victim’s own conduct due to the influence of an intoxicating substance, anesthetic, or narcotic administered without the victim’s consent or due to any other act committed upon the victim without consent.
Mentally Defective – When the victim is mentally defective and the offender has actual knowledge or this fact or has reason to believe the victim has a mental disease. Florida law defines “mentally defective” as any mental defect or disease which renders a alleged victim either permanently or temporarily incapable of appraising the nature of his or her conduct. An individual who is mentally defective under Florida law may not be able to consent to any sexual act which could constitute sexual battery or aggravated sexual battery.
Physically Incapacitated – When the victim is physically incapacitated. Florida law defines the term “physically incapacitated” as meaning any bodily impairment or handicap that substantially limited the alleged victim’s ability to flee or resist the act of sexual battery or aggravated sexual battery in such a way that negates any showing of consent.

Sexual Battery by Law Enforcement, Probation, or Correctional Officer- Florida Statute (4)(g)
It is a felony in the first degree, punishable by 30 years in Florida State Prison, if the act of sexual battery is committed upon the victim who is 12 years old or older without the alleged victim’s consent when the offender is in a position of authority or control. Additionally, the victim in such a case almost always has a civil rights claim or a personal injury claim against the agency that employed the offender. Occupations that are included within term position of control or authority include:
  • law enforcement officer;
  • correctional officer;
  • correctional probation officer;
  • officer who supervises controlled release, community control, detention, custodial settings, probation, or similar settings;
  • or anyone who leads the victim to reasonably believe that the offender is in a position of control or authority as an employee or agent of government.
Anyone who has been the victim of an act of sexual violence by a law enforcement officer, probation officer, correctional officer, or prison guard should discuss the case with an experienced civil rights attorney in the greater Tampa Bay area. The law enforcement agency that will investigate the claim may not gather all of the evidence against the person accused. Additionally, although victims are rarely prosecuted for bringing false claims, the victim of a sexual assault or battery by a law enforcement officer can be charged with providing false allegations in a specially created statute to protect law enforcement officers.
False Accusations of Sexual Battery under Florida Law 794.011(4)(g)
Florida Statute Section 984.011(10) provides any any person who falsely accuses any person listed in paragraph (4)(g) or other person in a position of control or authority as an agent or employee of government of violating paragraph (4)(g) is guilty of a felony of the third degree punishable by five years in Florida State Prison.
Surprisingly, such a criminal provision does not apply when the person falsely accused is not a law enforcement officer or other person in authority or control.
Sexual Battery – Second Degree Felony
A person who commits sexual battery upon a person 12 years of age or older, without that person’s consent, and in the process thereof does not use violence or physical force likely to cause serious personal injury commits a felony of the second degree which is punishable by 15 years in Florida State Prison. Florida law defines the term serious personal injury to mean great bodily harm, great bodily pain, permanent disability, or permanent disfigurement.
Sexual Battery – Custodial or Familial Position of Offender
If the person accused is in a custodial or familial position of authority over the victim, then the victim’s consent or willingness to engage in the sexual act is not a defense. In fact, Florida law provides that even acquiescence to a person reasonably believed by the victim to be in a position of authority or control does not constitute consent.
In other words, it is not a defense that the person accused was not actually in a position of control or authority if the circumstances were such as to lead the victim to reasonably believe that the person was in such a position.
Victim is 18 years old or older – If the person accused is in a custodial or familial position of authority over the victim who is less than 18 years of age, then the victims’ consent or willingness to commit the act is not a defense to prosecution. Under these circumstances, the crime is a third degree felony punishable by 5 years in Florida State Prison.
Victim is between 12 and 17 – If the person accused is in a custodial or familial position of authority over the victim who is between the age of 12 and 17 years old, then the victims’ consent or willingness to commit the act is not a defense to prosecution. Under these circumstances, the crime is a second degree felony punishable by 15 years in Florida State Prison.
Victim is under 12 years old – If the person accused is in a custodial or familial position of authority over the victim who is under the age of 12, then the victims’ consent or willingness to commit the act is not a defense to prosecution. Under these circumstances, the crime is a first degree felony punishable by 30 years in Florida State Prison. If any such sexual battery injures the sexual organ of the victim then the crime is punishable as a capital or life felony.

Note for Statutory Rape Crimes — Ignorance or belief as to victim’s age no defense.When, in this chapter, the criminality of conduct depends upon the victim’s being below a certain specified age, ignorance of the age is no defense. Neither shall misrepresentation of age by such person nor a bona fide belief that such person is over the specified age be a defense.



Related Links
Sex Crimes Criminal Defense Attorney in Clearwater, FL as well as Tampa, Hillsborough County, and Pinellas County.
Ignorance of the Victim’s age is no defense to Statutory Rape under the Florida Statutes, see: Statutes & Constitution :View Statutes : Online Sunshine 
The Rules of Evidence to be used in Sexual Battery cases may be found at the following link: Statutes & Constitution :View Statutes : Online Sunshine
Florida’s list of Qualifying Offenses for Sex Offender Registration Includes Sexual Battery – This information is found at the Florida Department of Law Enforcement. FDLE can be thought of as Florida’s FBI with crime labs, evidence resources, and it’s own law enforcement apparatus with a directive of solving crimes which transcend the jurisdiction or capabilities of local agencies such as the Hillsborough County Sheriff’s Office (HCSO, Tampa) or the Pinellas County Sheriff’s Office (PCSO, Clearwater, St. Petersburg). The FDLE information on sexual offenders & sexual predators, is presented under the Florida Sexual Predators Act under Florida Statute Section 775.21, and concerns the Registration of sexual offenders for sexual battery or aggravated sexual battery under the law of Florida.
Sexual Battery Information from the University of Florida Police – This web page is provided by the University of Florida Police Department and its Community Services Division and shows university students how they can lessen the chances of being a victim of sexual battery from perpetrators known or unknown.
University of Tampa’s Guidelines on Sexual Assault – Each university in the Tampa Bay area has written guidelines specifically to deal with allegations of sexual assault involving a college student or employee of the University. The guidelines for sexual assault include the following: survivor assistance guides, educational programs and counseling programs, a rape victim’s hotline, and the process for any campus disciplinary proceedings upon finalization of the investigation by the Tampa Police Department and the Hillsborough County Sheriff’s Office or FDLE.
University of South Florida (USF) Guidelines on Sexual Assault – These guidelines are for USF and include the Victims’ Advocacy Program which can assist University of South Florida students or employees who are victims of actual or threatened violence which may including the following crimes: assault, battery, sexual assault or sexual battery. The University of South Florida Police Department often investigate these allegations and report statistical information concerning rape allegations by students or employees of the University.