Miami Beach plan to appeal dismissed petty crime cases draws fire as ‘flawed,’ ‘offensive’

Miami Beach wants to crack down on petty crimes by going to an unusual place: the appellate courts.

Amid a controversial push to appear tough on crime, Miami Beach city commissioners this month directed its attorney’s office to appeal judges who dismiss cases involving nuisance crimes like drinking alcohol from an open container or peeing in public spaces. The overwhelming majority of those cases get booted by the city’s own prosecutor or by judges satisfied that an offender spent a night in jail.

“Our residents are telling us loud and clear that we need to take action, that we need be more proactive,” Miami Beach Commissioner Steve Meiner said during an Oct. 13 commission meeting, adding: “Zero tolerance works. It absolutely, absolutely works and misdemeanor offenses if left unchecked, will lead not only to more misdemeanor offense but more serious crimes.”

But appeals in such minor municipal cases are extremely rare — and the city’s new mandate is already drawing fire from critics who say it targets the homeless, is a waste of taxpayer dollars and possibly illegal. One of the main reasons: the measure, passed during that commission meeting, targets people with at least one prior arrest.

“This resolution is legally flawed and, frankly, offensive,” said Jude Faccidomo, the head of Florida’s Association of Criminal Defense Lawyers. “This resolution targets the most vulnerable population. This is not the ‘get tough on rowdy tourists’ solution the commission is suggesting. It targets the homeless and those suffering with mental illness. On a practical level, it is simply untenable and it will devour resources.”

Meiner, in the meeting, emphasized that the measure about trying to reign in judges who keep dismissing cases — and he touted “very successful” appeals in the past, which had an “an impact on the behavior of the judges.”

No successes

But a Herald review of past cases shows the opposite is true. The Miami Beach city attorney’s office hasn’t scored a single victory in appealing ordinance cases since its prosecution program began in 2018.

In one case, a panel of Miami-Dade circuit judges dismissed an appeal, agreeing with a defense motion that the appeal wasn’t legally sound.

Miami Beach appealed judicial dismissals in seven others cases in 2018, and voluntarily withdrew the appeal every single time. In two of those cases, Miami Beach prosecutor Yoe Lopez failed to file his legal brief on time, and then withdrew the effort even after the court ordered him to file it.

In one case, Lopez was not present for a hearing in April 2018 for a tourist who was arrested for having an open container in public. His defense attorney, Michael Mirer, asked the judge for a dismissal — the arrest was threatening to derail the young man’s enlistment in the Army.

“This is ... rather low on the totem pole of serious crimes,” Miami-Dade County Judge Edward Newman said.

But the case wasn’t over. Mirer soon received a “notice of appeal.”

“My knee jerk reaction was this was a complete waste of resources and judicial time,” said Mirer, who recalled writing in his case file: “The city of Miami Beach is appealing a f---ing open container.”

The client spent more money to have Mirer fight the appeal. Mirer recalled Lopez told him that he had orders to appeal everything.

In another case, Miami Beach police arrested four Latin-American tourists bound for a cruise who had been drinking at a South Beach seawall. The judge, Jeffrey Rosinek, threw out the cases so that the tourists could get to the ship on time.

Lopez objected. Rosinek was blunt. “These people are on vacation, and they’re having a great time and they enjoyed the Miami jail for a night, you know?” the judge said during the Feb. 1, 2018 hearing.

Miami Beach spent hundreds of dollars to file the appeal paperwork, and order transcripts and court records, only to voluntarily withdraw the case before appeals judges could decide on the case.

“Attorneys are not supposed to bring frivolous claims for which there is no basis in law and fact and this resolution may well violate the Florida rules of professional conduct,” said Kara Gross, the American Civil Liberties Union of Florida’s legislative director and senior policy counsel. “These ill-conceived mandated appeals will become another unnecessary expense for Florida taxpayers and further exacerbate existing disparities in our criminal justice system.”

Cracking Down on Crime

Even as cities and states across the country have moved away from trying to jail people for low-level crimes, Miami Beach commissioners have tried for years to get tougher on crime, particularly in South Beach’s entertainment district.

In 2018, the city created its municipal prosecution program, one of the few in Florida, after police complained repeatedly about the Miami-Dade State Attorney’s Office routinely dropping cases against people accused of “quality-of-life” crimes.

At the time, the police department claimed that 98 percent of municipal charges were being dropped. Concerns about the program were raised immediately — a Herald review of the program in 2019 found that two-thirds of the city’s municipal prosecutions were of homeless defendants.

“The key is not to put people in jail, but to stop the behavior,” said Aleksandr Boksner, then the chief deputy city attorney for Miami Beach said in 2018 of the prosecution program.

Still, criminal behavior — or at least, the perception of criminals run amok — continues to a concern on South Beach, at least as described by city leaders.

Next month, Miami Beach voters will consider a ballot question over whether to roll back alcohol sales from 5 a.m. to 2 a.m. in an effort to curb crime on South Beach. The move has infuriated businesses in the South Beach famed entertainment district of South Beach — protesters last week even disrupted Mayor Dan Gelber’s press conference about the issue.

Miami Beach commissioners, smarting from raucous Spring Break crowds, also passed a municipal ordinance that made it a crime to stand within 20 feet of officers, after a warning, with the “intent to impede, provoke or harass” them. Miami Beach police immediately made a string of controversial arrests of Black people, the majority of which were using their cell phones to video record officers.

Municipal ordinance violations are punishable by up to 60 days in jail.

The municipal prosecution program doesn’t appear to have any more success securing convictions.

Miami Beach Commissioner Steve Meiner, during that Oct. 13 commission meeting, claimed that 92 percent of over 400 recent cases had been dismissed without prosecution, but he was unclear how many were dropped by the city attorney’s office, or by judges.

Meiner’s resolution called for the city attorney’s office to appeal all cases in which the offender has a prior arrest “unless there are exceptional circumstances based on the evidence and law.”

Plenty of criticism

The Miami-Dade State Attorney’s Office, and the Florida Attorney General’s Office, which handle state criminal court appeals, have largely distanced themselves from the measure, declining to endorse the city’s move.

“Generally speaking, unlike offenses prosecuted by the state through the state attorney, our office would not have a role in appeals from municipal ordinance violations prosecuted by a city,” said Kylie Mason, an AG’s spokeswoman.

But the move immediately drew criticism from defense lawyers.

Miami-Dade Public Defender Carlos Martinez said “it would add to existing case backlog already clogging the courts. In our justice system, an individuals’ prior arrest history does not add validity to a bad arrest.”

Miami-Dade County Judge Steve Leifman, who has spearheaded the building of a ground-breaking facility set to open next year to treat mentally ill people who might otherwise be in the criminal justice system, said resources should be put into treatment, not securing convictions.

“You can’t arrest your way out of the problem of homelessness,” Leifman said. “Due process applies to everybody regardless of whether or you’re homeless or not, or have a prior record, or both.”

This story was originally published October 28, 2021 at 11:14 AM.