Anyone out there watch ABC’s Castle? It’s a solve-the-murder-flirting-detectives show (a la Moonlighting) that follows just about the same formula as any other crime show out there. You know they haven’t found the killer within the first 15 minutes of the show because if so, what will they talk about for the remaining 45 minutes? (Actually, they could fill the time with fake trailers for Castle’s upcoming movies, and that would be creative, but network television has somewhat abandoned anything remotely creative) Anyway, there’s always that one character early in the show that says “we’ve found the killer, let’s go have some drinks.” But no, the lead detective (Beckett) has a hunch that something just isn’t right, and she’s going to peel back the layers to uncover the truth. Believe it or not, this happens in criminal cases as well. In our case today, we find an intellectually lazy majority opinion written to preserve a conviction, yet one dissenting judge stands up to uncover the truth behind the intellectual dishonesty of the majority opinion. All of this excitement can be found in Jenrette-Smith v. State, 114 So. 3d 427 (2d DCA 2013).
Before we delve into the Jenrette-Smithcase, it is important to review some basic mandates of legal construction. Florida Statutes Section 775.021(1) contains a mandatory rule of construction, so that “when the language [of a law or statute] is susceptible of differing constructions, it shall be construed most favorably to the accused.” Easy enough, right? Is there anything more important for an appellate judge to do than interpret the law as it applies to a given set of facts? As you will soon discover, knowing the law and knowing how to interpret it are two different things.
Mr. Jenrette-Smith received 30 years in prison after a jury convicted him of promoting sexual performance by a child. In the spring of 2009, Jenrette-Smith decided to permit M.S. (she’s a juvenile, so we don’t use her full name), a sixteen year old runaway girl, to live in a bedroom of his home. Both M.S. and Jenrette-Smith decided to take sexual pictures of themselves, with no one else was around during the picture taking (no audience, in other words). M.S. and the defendant had the pictures developed at Walgreens, defendant paid. M.S. told the jury that the pictures were stashed in Jenrette-Smith’s mattress. She could not remember who carried the pictures from Walgreens to their home, or even if Jenrette-Smith ever looked at the pictures. Also, there was no testimony as to who stored the pictures in the mattress.
The first obvious question here is–did the state prove, via M.S.’s testimony, that Jenrette-Smith actually “possessed” these photographs? Because the testimony indicated that Jenrette-Smith took the pictures himself, paid for the pictures, and stored them in his bedroom, the majority court reasoned there was enough evidence to prove he possessed them. What’s most interesting about this case is how the court defined the crime of promoting a sexual performance by a child.
Under (what was then) Florida Statute section 827.0731(3), “a person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he or she produces, directs, or promotes any performance which includes sexual conduct by a child less than 18 years of age.” The term “performance” is further defined in section 827.071(1)(b) as “any play, motion picture, photograph, or dance or any other visual representation exhibited before an audience.” It is these last four words, ‘exhibited by an audience’, that are not defined in the statute–so we must look to section 775.021(1) and interpret this phrase in a light most favorable to Mr. Jenrette-Smith. As you might expect, the majority opinion ignored this law entirely.
Again, “performance” means “any play, motion picture, photograph, or dance or any other visual representation exhibited before an audience.” Even though an audience can be just one person (anyone who has ever played in a band knows this to be true), I’m sure courts in Iran and China have such discretion, but American courts have no discretion when interpreting an ambiguous statute such as this. They must hold in favor of the defendant. It took the sharp legal mind of Judge Northcutt to expose the faulty reasoning of the majority in this case. Let’s take a closer look at his dissenting opinion, one of the best dissents I’ve read in a while:
In section 827.071(1)(b), “performance” is said to mean “any play, motion picture, photograph, or dance or any other visual representation exhibited before an audience.” The first ambiguity relates to the extent to which the phrase “exhibited before an audience” qualifies the balance of the definition. The statute might be read to mean that only “any other visual representation” must be exhibited before an audience to violate the statute. On the other hand, it is also reasonable to interpret the phrase as qualifying the entire list of offending activities, such that a performance is defined as “any play, motion picture, photograph, or dance or any other visual representation” that is “exhibited before an audience”. Because the latter construction narrows the scope of the criminal prohibition, and thus is most favorable to the accused, it is the one that must prevail. Simply put, then: exhibition before an audience is an element of the crime defined in the statute.” Id.
Judge Northcutt is not done blasting the intellectual dishonesty found in majority opinion:
Note that the question is not whether this interpretation is the most reasonable of the possibilities. Under section 775.021(1), courts must apply the rule of lenity when statutory language merely “is susceptible of differing constructions.” In that case, the statute “shall be construed most favorably to the accused.” Id. Again, as the Florida Supreme Court has recognized, this rule is not merely an aid to statutory construction to be weighed along with others. It is a statutory directive, which we must obey even if construction aids such as the doctrine of the last antecedent could support a different, reasonable interpretation. ….As the Perkins court put it, “words and meanings beyond the literal language may not be entertained nor may vagueness become a reason for broadening a penal statute.” Id [internal citations omitted]
To add insult to injury for the majority, Judge Northcutt’s dissent tears into the majority’s definition of “exhibiting to an audience”. In order to uphold Jenrette-Smith’s conviction without evidence that the pictures were shown to an audience, the definition of “audience” must only include the picture taker or participants, right? I don’t know of a middle school English teacher in Afghanistan that would agree with that definition, and they’re not known for the quality of their education, especially if you happened to be female. And yet, that’s the definition accepted by the majority opinion in this case. Isn’t it their job to interpret words and their meaning? The dissent correctly asserts that “exhibiting to an audience connotes volitional acts aimed at displaying something to someone else.” Id. So, after Judge Northcutt calls out the majority for their inability to interpret words and their meaning, is there anything left of the majority’s opinion, intellectually speaking? Well, yes.
Remember the state’s so-called proof of “possession”, in that Jenrette-Smith paid for the photographs to be developed and went to Walgreens with M.S. to pick them up–therefore he must have possessed them? The dissent, again, correctly points out, “M.S.’s testimony that Jenrette-Smith paid to have the photographs developed and printed did not prove that he viewed them or even physically handled them.” In essence, the majority believed “that Jenrette-Smith possessed the ‘images’ at the moment he took them….That is an absurd proposition: the fact that cows eat corn does not mean that corn qualifies as hamburger. It is just as absurd to suggest that a single step in the photographic process, the casting of reflected light on chemical-coated celluloid, constitutes what is commonly understood to be a photograph.” id.
As a side note here, the majority opinion has on their side several other poorly reasoned opinions, including Killian v. State, 761 So. 2d 1210 (Fla. 2d DCA 2000) (holding that an audience is not required to convict under this statute). Also, the prosecution in this case could have simply charged Jenrette-Smith with something like possession of material depicting sexual conduct by a child, or possession of child pornography. The statute found in 827.071(5) is way overbroad, and it makes it a crime to possess, control or view child pornographic images (overbroad as it relates to computer images to which a person may have no knowledge of their existence, and yet still find himself in prison). There’s no requirement under this statute that the accused “promote” the images, no requirement that he exhibit the images to an audience. Of course, we then have the issue of defining “image”, but that’s a discussion for another day.