Archive for October, 2012

|

How do courts “kick out” the public?

Wednesday, October 31st, 2012

Although those charged with crimes are guaranteed the right to a public trial under the 6th Amendment, sometimes courts “close down” the courtroom when receiving certain types of testimony.  This means the court “kicks out” members of the public to protect certain sensitive matters.  But what kinds of findings does a court need to make before closing down a courtroom?  This post will discuss the four requirements for kicking the public out and also some Florida exceptions to the rule.

Under the 6th Amendment, a Defendant is guaranteed the right to a public trial.  If that is true, then how do courts get away with closing down courtrooms (aka, kicking the public out) when certain types of testimony is offered? (You’ll see this frequently when a child sex victim is testifying.)

In Florida, a recent case highlighted the legal standard that must be shown before the presumption of openness can be overcome.

The 4 legal requirements

The US Supreme Court case of Waller (467 US at 48) sets out four requirements that must be shown before the Court can kick out the public.

1. The party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced;

2. Closure must be no broader than necessary to protect that interest;

3. Trial court must consider reasonable alternatives to closing the proceedings; and

4. The court must make findings adequate to support the closure.

Exceptions

Keep in mind there may be certain statutory exemptions for closure as well, depending on a state-by-state basis.  Florida, for example, has a statute that allows a court to clear the courtroom for testimony of victims under the age of 16, or those that are mentally retarded, or of a victim of a sex offense.  The statute reads in full:

Section 918.16 Sex offenses; testimony of person under age 16 or person with mental retardation; testimony of victim; courtroom cleared; exceptions.—

1. Except as provided in subsection (2), in the trial of any case, civil or criminal, when any person under the age of 16 or any person with mental retardation as defined in s. 393.063 is testifying concerning any sex offense, the court shall clear the courtroom of all persons except parties to the cause and their immediate families or guardians, attorneys and their secretaries, officers of the court, jurors, newspaper reporters or broadcasters, court reporters, and, at the request of the victim, victim or witness advocates designated by the state attorney’s office.

2. When the victim of a sex offense is testifying concerning that offense in any civil or criminal trial, the court shall clear the courtroom of all persons upon the request of the victim, regardless of the victim’s age or mental capacity, except that parties to the cause and their immediate families or guardians, attorneys and their secretaries, officers of the court, jurors, newspaper reporters or broadcasters, court reporters, and, at the request of the victim, victim or witness advocates designated by the state attorney may remain in the courtroom.

 

The 6th Amendment right to a public trial is an important right, but one that is subject to a few exemptions as well.

________________________

Disclaimer:  This post is not intended as legal advice nor does it create an attorney-client relationship.

~At Matthews Law Firm, P.A., we practice criminal defense & health law.  Our offices are in Bartow, Florida and we offer free consultations. We are currently taking cases throughout central Florida.~

“Stand Your Ground” Does Not Apply to Officers

Wednesday, October 31st, 2012

In a recent ruling, the Florida 2nd DCA ruled that a police officer may not rely on the “stand your ground” law to avoid prosecution.

The case is State v. Caamano (2D12-1857) and was decided on October 26, 2012.

According the DCA opinion, the State has alleged the following facts:

“As a street party was dispersing in Lake Hamilton in October 2010, one individual refused to comply with police orders to exit the street.  An officer physically engaged the individual by escorting him to a grassy area beside the roadway and taking him to the ground, but the individual resisted.  Two other officers assisted in detaining the individual by delivering knee and hand strikes and using a taser to “drive stun” him.

While the individual was face down on the ground after having been beaten and tased by a group of law enforcement officers, Caamano, an on-duty Haines City Police Officer, approached the men.  Caamano raised his right foot and “br[ought] it down in a stomping motion” towards the individual’s legs, saying “put your hands behind your back” as he did so.  The State alleged specifically that Caamano’s actions did not assist the other officers with bringing the individual into custody, and that the detained individual did not exhibit any active resistance toward Caamano.  Instead, the State alleged that “his stomp served no purpose other than to bring unjustified and unnecessary force to [the individual], who was already engaged by three other officers.” (Page 2 of the opinion).

The Court went on to rule that if Caamano is entitled to immunity, it would be under a different statute, specifically, 776.05, titled “Law enforcement officers; use of force in making an arrest.” (Page 7 of the opinion)

Caamano has been charged with attempted battery.

To read recent news coverage of this case, click here.  For more background on the case, go here.

_______________________

Disclaimer: This post is not intended as legal advice nor does it create an attorney-client relationship.

~At Matthews Law Firm, P.A., we practice criminal defense & health law.  Our offices are in Bartow, Florida and we offer free consultations.  We are currently taking cases throughout central Florida.

 

 

2013 OIG Work Plan

Wednesday, October 31st, 2012

The 2013 OIG Work Plan has been released.  To see the complete Work Plan, click here (fair warning, it’s a big pdf file).

The Work Plan is a good resource for providers to review to learn of enforcement and focus areas for their organization (i.e., hospitals, nursing homes, hospices, etc.).  For example, there are 11 new focus areas related to hospitals.

The 2013 Work Plan also has paid special attention to the new healthcare reform law.  For the new programs and reviews related to the ACA, see Appendix A on page 107.

It would be wise for providers to review all the topics in their field, and pay especially close attention to the new areas of compliance.

_____________________

Disclaimer: This post is not intended as legal advice nor does it create an attorney-client relationship.

~At Matthews Law Firm, P.A., we practice criminal defense & health law.~

 

|