A Miami Beach cop, worried about his words being twisted at trial, recently used his newly outfitted “body camera” to record a hallway interview by a defense attorney — without telling her first.
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The resulting objection from the Miami-Dade Public Defender’s Office, it is safe to say, was strenuous.
The episode and backlash have spurred Miami Beach police to ban officers from using the new technology at such so-called “hallway depositions” — and underscored the difficult balance of providing the public a transparent view of how law enforcement operates while protecting privacy rights.
“These are issues we are all struggling over as we are learning this technology,” said Miami Beach Police Chief Dan Oates.
The incident sparked outrage from the Public Defender’s office, which called the recording “a violation of Florida law” and re-ignited long-running complaints that defense attorneys in minor cases are generally not allowed formal interviews with witnesses before trial.
“My biggest issue is that there are no depositions in misdemeanor court. For too long, we have treated misdemeanors as if they are not serious,” said Miami-Dade Public Defender Carlos Martinez. “They can seriously impact people’s abilities to get jobs. They can get their driver licenses suspended.”
Body-cam programs for police have increased along with national scrutiny of law enforcement tactics amid a series of high-profile deadly encounters between officers and citizens. Lethal police shootings from Missouri to New York to Florida have spurred calls for outfitting officers with the small digital cameras, mounted next to an officer’s badge.
The U.S. Department of Justice last year awarded $23.2 million in grants to fund body-camera programs to 73 law-enforcement agencies, including money for 500 devices for Miami-Dade police. The county this month also approved a larger purchase of the $1,500 devices — by September, more than 1,000 officers could be wearing the cameras.
Miami-Dade’s new police director, Juan Perez, said this month that cameras serve as a countermeasure to civilian cellphone footage that sometimes can give an incomplete look at encounters with police.
The footage “will tell a better story for us,” Perez said. “That way, we won’t be focused just on the five seconds someone films of an incident. We’ll have the entire incident.”
Last year, Miami Beach police became one of the first local law-enforcement agencies to debut the cameras. So far, 100 officers are wearing the devices, with more on the way in the coming months.
But the devices have not come without controversy.
Across the country, many police unions have blasted the programs as wasteful, thrust upon officers by publicity-minded politicians. The programs have also raised concerns about privacy. What exactly can officers record, and in a state with liberal disclosure laws, what is the public entitled to view?
In Miami Beach, officers are generally supposed to turn on their cameras for the entirety of interactions with citizens. There are a slew of exemptions — recordings can’t be made of undercover and tactical operations, strip searches, and in sensitive areas such as locker rooms.
This week, Florida Gov. Rick Scott signed a law that mandated police departments wanting to use body cameras to outline policies and procedures for the program. The bill notes that the programs are exempt from a Florida law that bans recording someone without their consent in an otherwise private setting.
And indeed, under Miami Beach’s camera program, veteran officer Julio Blanco did not have to inform the defense attorney that he was recording her in the court hallway back on Feb. 24.
The legal squabble stems from a long-running practice unique to Miami-Dade’s criminal courthouse.
The “hallway depositions” are not actually depositions at all. The latter are formal interviews of witnesses, sworn under oath, and recorded by a stenographer and attended by lawyers on both sides. Under court procedures, formal depositions are generally only allowed on felony cases.
So in Miami-Dade’s criminal court, there has long been an informal practice of defense lawyers interviewing officers listed as witnesses before misdemeanor trials. The information gleaned from the interviews helps lawyers poke holes in the case, or sometimes, can convince a client that the case is rock solid and to agree to a plea deal.
The Miami-Dade Public Defender’s office handles around 35,000 to 40,000 misdemeanor cases each year, charges that can range from minor marijuana possession to trespassing to petty theft.
But officers have long complained that defense lawyers sometimes misconstrue their words in the hallway interviews to later cast doubt on the arrests.
In Blanco’s case, he was interviewed about Valerie Engel, 38, a homeless woman he arrested for trespassing in front of a store on Washington Avenue. In court, he activated his body camera when approached by Miami-Dade assistant public defender Audrey Salbo.
According to the Fraternal Order of Police, Blanco was asked to sign the lawyer’s notes. When he declined, Blanco informed Salbo that his recording had captured the exchange. The surprised lawyer protested to Miami-Dade County Judge Robin Faber, saying the recording violated the law against recording without someone’s consent. Higher-ups at the State Attorney and Public Defender’s office rushed to court to deal with the situation.
Ultimately, prosecutors determined that no law had been broken. Chief Oates also stood by his officer, saying Blanco broke no rules.
“One officer did it for a narrow reason in that he was worried whatever he said was going to be misrepresented by the public defender in the courtroom,” Oates said.
The police union said there is no expectation of privacy in in the courtroom hallway.
“It’s a public area,” said Kevin Millan, the fraternal order’s vice president. “Any member of the public, including the media, can tape in that area.”
Ultimately, the case against Engel was dismissed. Although the department said Blanco did nothing wrong, after meeting with prosecutors, the department has ordered officers to leave the cameras off in the hallways. Officers can now ask that prosecutors stand in on misdemeanor “hallway depositions.”
“For these misdemeanor cases, both the State Attorney’s Office and the Department want to avoid a continuance and avoid formal depositions,” Oates wrote in an email on March 15. “This is because any postponement of a misdemeanor trial almost always favors the defendant and increases the likelihood that the case will be dismissed.”
The decision was met with dismay from the union, which while not in favor of body cameras in general, thinks they should be allowed so that officers can “protect their rights.”
The new policy has done little to mollify Martinez, the public defender who now plans to file a public-records request to determine exactly how many times Miami Beach police officers have recorded his lawyers in court. He believes that officers will now stop consenting to the informal interviews, leaving defense lawyers less prepared to defend the accused.
“You have a constitutional issue here. You cannot prepare to go trial,” Martinez said. “You cannot adequately advise your client. It’s outrageous.”