WHAT HAPPENED AND WHAT I DID

    I have three children. My oldest daughter has Autism. At the time that this occurred, my son and daughter, (the children who are NOT disabled) had not been getting along and were constantly bickering. Their rapidly declining relationship was distressing to my wife and I because the prior year they had gotten along very well and each had even considered themselves to be friends with one another. But as things sometimes happen with teenagers, the relationship turned from bad to worse. I had never considered, however, that I could not leave them home alone while I took my third child to the doctor. My oldest daughter, who has autism, regularly sees a therapist, who prescribes much needed medication. On the night that this had occurred, my wife and I thought that we would take her to the therapist, then perhaps the three of us would pick up some dinner before returning home. Of course, this did not happen.

    In February, 2015, my teenage Daughter (17) and my teenage son (16) were in a physical altercation, an actual fistfight, while my wife and I were out taking our third daughter to the doctor. My middle daughter called the police and by the time my wife and I had returned home with our oldest daughter, the police were in our home and she was filling out a police report.

    The police arrested him. 

    The State charged him with aggravated assault with a deadly weapon, alleging that he threatened my daughter with a screwdriver, though he denied the allegation and one was never found. The two of them were fighting over an iPhone, which my teenage daughter won possession of after beating her brother down. After escaping her, my son left the house and was stopped by the police down the road.

    That night my daughter moved out of my home and in with her boyfriend. She turned 18 years of age a few months later and never came back home. My son was charged with domestic battery and aggravated battery with a deadly weapon. About two weeks later, my daughter called me and wanted me to accompany her to the State Attorney's office because she wanted to drop the charges against her brother. Of course I accompanied her, and sat and listened in silence as she relayed the events to the State Attorney. I felt that the incident was mutual combat but the prosecutor filed charges anyway. I could not believe that the State Attorney's office filed charges because my children could not have been the first to have a fight over an iPhone. Of course, they were the first to have the State Attorney's office involved. One aspect of this that bothered me is that I knew most of the State Attorneys very well as I'd been a public defender for many years and we'd all worked together. 

    The prosecution of my son was nothing short of vicious. One would think that he had murdered a busload of nuns with how the state attorney's office was treating him. During the case, I waived speedy trial and attempted to negotiate a plea, but was unsuccessful. My son, who was a straight "A" student in the IB program at the military school was not guilty of the charges. I felt the incident was mutual combat, and that the prosecution was a product, at the very least, of specific enforcement.

My daughter had made her wishes known, in writing, before the State filed charges. 

     She had specifically requested a dismissal.   Further, she went to the State Attorney's Office on her own, drove her own car, signed the waver of prosecution at the State Attorney's Office, with their notary, after requesting the document from them. Afterwards, she was repeatedly contacted by the State Attorney's office even though she had made her wishes known. Both my wife and I were regularly threatened with being charged with witness tampering and I would often find my wife sitting alone in the dark and sobbing at what had become of things. To this day it feels me with great sadness as to what she experienced throughout this. She didn't deserve any of it, but suffered nevertheless.

    My daughter (of course the one without autism) had packed her belongings and moved out of my house that night, immediately after the fight with her brother. For the trial against my son, the State never served her a subpoena. The fact that she was never served was not my fault. In the interest of avoiding further harassment by the State Attorney's office, I was the one giving them the addresses where they could find her. while all this was happening, I had a heart attack and my health was not very good. We had great difficulty keeping in touch with her after she moved out. The Bar and the State both alleged that my daughter was served a subpoena, a fact which was important to my prosecution by the Bar, as it is alleged that I coerced her to ignore the subpoena. The allegation that she was served a subpoena for the trial against her brother is incorrect. One of the addresses, the State's Process Server had written "moved out" on prior to signing. One of the other subpoenas (that was supposedly "served") had been taped to one of my daughter's friend's garage door. I had little to no contact with her, but thankfully, she was still attending school. On at least two occasions, I provided her school address to the State Attorney's Office, and told them to serve her there and this was never done. She could have been reached throughout the day there, they just failed to send someone there to serve her.

As the case dragged on, I attempted to negotiate a plea and was unsuccessful. This was a child who had never been questioned nor arrested or even had any contact with the police prior to this. He was an honor student.

The judge who was handling my son's case is also the one who filed a grievance against me. After the case had dragged on with the state refusing to dismiss it, I had demanded a speedy trial to get the thing finally over with. In court I had to stand there and listen as the state attorney spoke ill of me, much of what she said was incorrect and misquoted. It didn't matter if I objected, much like a bar case, hearsay was perfectly allowed. (Of course I wasn't allowed to relay anything.)

     The Judge had stated in his grievance to the bar that my daughter was wavering in her willingness to testify against her brother. Within the first few weeks after my son was arrested, and everyone calmed, (and my daughter had moved out of the house and in with her boyfriend with the blessings of the judge and the legal system) she signed a “waiver of prosecution” asking the State Attorney to dismiss the charges.     In open court, I was made to stand at the podium while the state attorney made disparaging remarks, maligning my character and ethics alleging that I had coerced my daughter. (If I had that kind of power, she would have lived with either me or my family, not on her own someplace.  Among the allegations against me was the alleged coercion of my daughter and coercing her.

The bars case against me, like most legal matters, took a long time. I got a firsthand immersion into what happens when a person is charged with a crime because that's how it felt.  They were trying to take my license away. All attorneys know that because of the immeasurable resources and time spent in becoming a lawyer, a lawyer's identity is wrapped up with being a lawyer. While I waited for trial, my friend said I was crazy for not hiring an attorney to represent me. I became an expert in the rules of ethical conduct and read every case I could find that was even remotely similar to mine. I knew that the State had not subpoenaed my daughter for my son's trial, even though that allegation was made against me. How could I have coerced my daughter to ignore subpoena that she was never served? In trial, the judge chastised the State Attorney's office and told them that they needed to review the rules of proper service of process. Of course, taping a subpoena to a friend's garage is not proper effecting of service of process. The fact that she was not properly served was not my fault as I had given them the address to her school and for some unknown reason they simply didn't go there and hand her the papers. The trial against me was simple and quick. All witnesses testified by phone. The only people in trial the whole time were myself, bar counsel, the court reporter, clerk, and judge.  I listened to state attorneys testify and refer to me by my first name, stating that they had been friends with me for over 15 years. I listened to the State Attorney who had my daughter's case relay that my daughter had said to her over the phone that she was going to file charges against her if she didn't stop calling and bothering her. I listened to the State Attorney relay that my daughter asked her if she needed to tell her in Chinese because she obviously didn't understand that my daughter wanted nothing to do with it and that she should drop the case because she worked for my daughter, as my daughter was "a taxpaying citizen." The judge realized something that I had been saying all along: that my daughter does what she wants, nobody tells her what to do, not even her father who is a lawyer. 

    At the conclusion of the Bar's evidence, one at a time, in open court, the judge dismissed the charges against me and when he got to the last one he began to waver a little as I had told one of the State Attorneys that I was going to "put my foot up his ass." The state attorney while testifying referred to me by my first name and said we had been friends for many years. Of course, he did not believe that I was going to actually put my foot up his ass, but he relayed that I cursed at him, and I admitted that was true.

As I was arguing to the judge that just because we are lawyers we are allowed to curse at our friends, that we are allowed to make empty threats regarding "kicking someone's ass." As the judge was about to dismiss the last charge, bar counsel stood and told the Judge that he could give me diversion, I could take a class and the case would be dismissed with no damage to my license. (This was not an offer that been previously made to me, incidentally.) The judge then turned to me and said: "how about it, would you take a class? If you did I would not have to rule on this last issue." 

I was afraid that if I had not taken the sudden offer of diversion on the allegation of unprofessionalism, he would rule against me simply for that fact. In retrospect, I wish I would have stood my ground. 

    I believe men who are friends should be able to curse at one another. The fact that those men are lawyers should not preclude the empty threat to "kick a friend's ass."

     Is important to note at this point, that I tell everyone how I now consider the Bar counsel who prosecuted me. I feel I can have a conversation with her and we have a courteous and professional relationship. My wife and I showed her pictures of our grandson when we were in the courthouse and it was as if I was talking to an old friend. I have never met anyone in a prosecutorial position who is more professional, courteous, and for a lack of a better way to describe her, human. Throughout the process, she spoke to me as if I was a person and never treated me like I was a criminal or a bad person. She answered only the questions she was allowed and answered my emails promptly. She was honest and straightforward throughout the case and no matter how I tried, I could not be angry with her. (Believe me, I wanted to hate her, it would have made things easier.) It was painfully obvious to me early into the case that she had very little discretion in the process and that there were supervisors scrutinizing her work. It is my impression that most of the attorneys going to court on behalf of the Bar are like her and as this is the case, I cannot explain why things are the way they are or feel to me the way that they do.

    After the damage to my family, a heart attack, the loss, the case was finally over. I took the class and found it to be an exercise in sadness, as all but one of the attorneys there was there because of simple conversations where the Bar felt that the attorney was unprofessional. One attorney was there because she had had a conversation with a therapist outside of the courthouse, and the therapist complained that the attorney spoke sternly to her. This was a family law case, incidentally. Another attorney was there for having an argument with a witness in a similar sort of situation. It is apparent that the Florida bar wants attorneys to somehow be zealous advocates but also be aware that if we have an argument with the wrong person and some things are said, we will be sanctioned. Most of my colleagues will now refuse to have even a conversation with a witness. I paid my $750, took my class, and tried to never look back. Unfortunately, every single time I speak to a client, a potential client, or anyone, I have a fear that if speak my mind I will be misunderstood, misquoted, and once again charged by the bar.

                                                                                                                                                                                                       Jeff Rapkin

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