Witness arrests in Orange County spur questions, lawsuits

By Elyssa Cherney
Orlando Sentinel

ORLANDO, Fla. (AP) — Mircale Cole had all but forgotten witnessing someone vandalize her roommate’s car in Maitland in 2010 — until the calls started coming in.

It was three years later, and prosecutors with the Orange-Osceola State Attorney’s Office wanted her to testify in the case. A college student and Toys “R’’ Us employee, Cole said she moved to West Palm Beach and couldn’t make the trip.

Then police showed up at Cole’s house with a warrant for her arrest. She spent eight days in jail, until prosecutors ultimately dropped the case after she had been transported to Orlando.

Usually reserved as a last resort in the most serious crimes — such as murder — state law empowers prosecutors to ask for the arrest of key witnesses to ensure their testimony at trial. Data shows that Orange prosecutors asked for more of these arrests between 2013 and 2015 than in other Central Florida counties combined, according to different judicial circuits across the state.

Cole, 27, was one of ten witnesses who was jailed in that time — though most were in homicide cases. Judges signed a total of 32 arrest warrants for allegedly reluctant witnesses.

In addition to using warrants for violent felonies, prosecutors did so in less severe cases — sale of cocaine, fleeing and eluding, battery and burglary. For Cole, the underlying case was charged as criminal mischief.

In court papers, the prosecutor and a witness coordinator said Cole acknowledged being served with a subpoena. Cole said she never got one, which is why their sudden phone calls confused her.

“Out of nowhere, some attorneys started calling my phone,” Cole said. “I said, ‘I have to go to work, I have to go to school. ...’ They kept calling my phone, screaming and harassing me, so I stopped picking up.”

As the Orange-Osceola State Attorney’s Office fends off two lawsuits over witness arrests in different incidents, an organization of local defense attorneys is objecting to the practice. State Attorney Jeff Ashton declined an interview request, citing the pending litigation.

The 10 witnesses who were arrested stayed in custody ranging from a couple of hours to two weeks. Some were victims who didn’t want to be part of the prosecution, witnesses who feared retribution for taking the stand and parents concerned about testifying against their own children.

“We issue subpoenas for nearly every witness who is to testify at trial,” Angela Starke, a spokeswoman for Ashton, said earlier this year. “In 2015, there were 249,877 subpoenas issued...Thus, not even a sliver of witnesses — if any — are subject to the motion (for arrest).”

Prosecutors in other Central Florida counties requested far fewer arrests in the same period, according to different State Attorney’s Offices. In all of Lake, Marion, Citrus, Sumter and Hernando counties, just one arrest was requested. In Volusia, Flagler, Putnam and St. Johns counties, there were four. Brevard County had the second most behind Orange with nine petitions.

Statistics were not available in Seminole, Osceola, Miami-Dade, Hillsborough or Pinellas counties.

But Karla Reyes, president of the 130-member Central Florida Association of Criminal Defense Lawyers, found the number of witness arrests alarming. A federal public defender who also represented indigent
clients in state court, Reyes said there should be a better procedure if witnesses’ liberty is at risk.

Because there’s no law that deals with the rights of arrested witnesses, they are not entitled to a lawyer and probable cause for their arrest does not have to be established, Reyes said.

“It makes me very uncomfortable,” Reyes said. “They get worse treatment than someone who is alleged to have committed a crime.”

To ask for the arrest of a witness, prosecutors submit a petition to a judge outlining failed efforts to reach the person and why their testimony is crucial to the case. Even if a judge grants the request, the warrants can be recalled — meaning no one gets arrested — if the witness shows up or the case is dropped.

Orange-Osceola Chief Judge Fred Lauten recalled issuing witness warrants in serious crimes, usually days before trial. Judges generally accept the representations about reluctant witnesses made to them by attorneys, he said.

Michael Barber, a private attorney and former Orange County prosecutor, said witness warrants should be used sparingly but are sometimes necessary.

In a 2013 grand theft case, he asked for the arrest of the sister of a man accused of stealing a Bright House cable van. The woman changed her statement and would talk to defense attorneys but not take his calls, Barber said.

“In those sorts of cases, subpoenas aren’t optional,” he said. “Our entire justice system depends on the subpoena power. If we can’t compel people to come to court and testify, everything would come to a grinding halt.”

Ultimately, Barber dropped the charge against the defendant because the sister would not cooperate. He made that decision before she was arrested and before the judge granted his request.

Debate over witness warrants center on when prosecutors can use them. One Florida statute states prosecutors can only do so in cases that carry a life sentence or the death penalty — murder, armed kidnapping and crimes with sexual components.

Other attorneys, though, said the law governing witness arrests is broader because it encompasses all statutes about contempt of court. Since ignoring a lawful subpoena is defying a court order, failing to appear as a witness is contempt of court, according to former Orange County prosecutor Marc Consalo.

To resolve the issue, Reyes said the Florida Legislature needs to explicitly remedy the confusion in state law. The Central Florida Association of Criminal Defense Lawyers plans to ask Lauten to issue a directive to judges or it will turn to lawmakers, she said.

Though some arrested witnesses have pursued legal action, Cole said she’s not interested in that. She lost wages for the eight days she spent in jail, but was able to return to her job.

After the ordeal, prosecutors paid for a hotel and a bus ticket home, she said.

“It was my first real experience going to jail,” Cole said. “At first I was confused about what was going on ... then I started to get aggravated ... I was just happy to be out.”