Article Underscores Importance of Florida Law Barring Testimony on Prior Convictions

September 13, 2010 by David S. Seltzer

A recent article about Florida’s criminal justice system caught my eye as a West Palm Beach cyber crime criminal defense attorney. Published Sept. 12 in the Panama City News-Herald, the article discusses a Florida court rule that prevents prosecutors from introducing evidence about defendants’ previous convictions. People quoted in the article, including two assistant state’s attorneys, suggested that evidence of prior convictions makes it easier to get a conviction, but others pointed out that introducing a prior conviction unrelated to the current charge could unfairly imply that the previous conviction means the defendant is guilty of the current conviction as well. This conflict was illustrated by a recent real-life decision in a Panama City case in which a man was convicted of downloading child pornography.

The defendant in that case was Sean Bussell, 36, who was convicted on six of 22 charges of possession of child pornography in early September. He faces up to 30 years in prison at his sentencing in October. However, the jury didn’t know that Bussell had been arrested in 2005 of burglary. In that incident, he was reportedly drunk, with his pants around his ankles, and heading for a bedroom where a 7-year-old boy was sleeping. The boy’s father had to threaten Bussell with a knife before he would leave. In that case, Bussell’s conviction was not adjudicated, meaning that he technically had not been convicted. Nonetheless, said state’s attorney Patrick Faucheaux, not telling the jury was “almost a miscarriage of justice.” Faucheaux, an observer who did not prosecute the case, said he believed the jury would have taken fewer than seven hours to deliberate and convicted Bussell on more counts if they had known about the burglary charge. The prosecutor in the case agreed but chose not to question Bussell about it on the stand. Bussell’s criminal defense attorney said such a question could have been a legal error that could have overturned the conviction on appeal.

As an Orlando cyber crime criminal defense lawyer, I strongly disagree with the implication that this rule in Florida law is a mistake. In fact, Bussell might be a good example of why we need this rule. One principle of American criminal justice is that trials seeking to put someone in prison must be fair. One important way to keep trials fair is to exclude evidence that might prejudice the jury and does not help jurors decide whether the defendant committed the crime. The prior burglary arrest is just that kind of information. It’s clear that Bussell’s burglary arrest did not have an influence on his later decision to download child pornography.

Faucheaux seems to imply in the article that the two crimes are related because Bussell was trying to harm the little boy in the burglary incident. But Bussell was not charged with kidnapping, molestation or any similar crime, suggesting that there was no evidence to support such a charge. It’s possible that there are details about the incident that the article left out, but child molestation is far from the only reason for a drunk person to behave badly. The incident certainly reflects badly on Bussell, but it is not evidence that he is a child molester. Prosecutors should not -- and in most Florida cases, cannot -- use this type of guilt by implication to get convictions that the relevant evidence does not support.

Keeping this kind of bad prosecutorial behavior out of the courtroom is an important part of my job as a Fort Lauderdale cyber crime criminal defense attorney. As this article suggests, not all prosecutors are happy to play by the rules. Knowing that introducing unfair, excluded evidence will help them win the case, some prosecutors try to bend the rules. Defendants who are representing themselves may not even realize that this is a problem, and overworked public defenders may not be able to catch the problem in time. But as an experienced defense attorney, I watch for tricks like these and fight them vigorously whenever I find them. In the end, prosecutorial misconduct may lead to having the case reversed in an appeals court, as the article notes. But that only happens after the defendant has been in prison for some time -- and I prefer to keep my clients out of prison as much as possible.

If you or someone you love is facing criminal charges in Florida, don’t hesitate to call Seltzer Law & Associates for help. To learn more or set up a free consultation, call us -- 24 hours a day and seven days a week -- at 1 888 THE DEFENSE (1-888-843-3333) or send us a message online.