Looking Into the Eyes of an Alleged Sexual Predator, Richard Russell McDade (Photo Compliments of the Florida Department of Corrections Prison System)
Panama City, Bay County, Florida
Sunday, April 12, 2015
By: Kevin Earl Wood, Email: allunited@bellsouth.net
Bay Community News has been aggressively lobbying the Florida Senate to pass a law allowing ALL victims of crime to “record” evidence of the crimes against them. Particularly crimes by law enforcement officers.
Yesterday, Saturday, April 11, 2015, a black man, Walter Scott was laid to rest after he was shot five times in the back by a white police officer, Michael Slager, who fired his gun eight times while Walter Scott was running away simply over a child support arrears case.
Fortunately a witness to the brutal murder, Feidin Santana, a 23-year-old Dominican immigrant, recorded the murder with his cell phone. This emphasizes that citizens have a “right to record” evidence of crimes whether a witness to a crime, or as a victim of a crime.
This past Tuesday, April 7, 2015, this reporter appeared and testified before the Florida Senate Judiciary Committee to no avail on Senate Bill CS/SB 542 that only allows children under 18 to “record” evidence of sexual or violent crimes against them.
Bay Community News aggressively advocated to the Florida Senate, and the House of Representatives, to simply repeal the 1974 Nixon/Watergate “John Dean Amendment” by former Senator W.D. Childers, today a convicted criminal himself who has forfeited all state retirement benefits as a result.
The “John Dean Amendment” changed Florida from a “one party consent” to an “all party consent” interception state. Federal “interception” law and the vast majority of other states in this country are “one party consent” states.
The “John Dean Amendment” in 1974 was a knee-jerk reaction to the 1973-1974 Nixon/Watergate scandal passed to protect politicians in Florida from a similar Nixon/Watergate scandal. It was not passed to protect victims of crimes or innocent citizens who merely want to “make a record” of their own communications with others.
The Senate bill provides:
(k) It is lawful under ss. 934.03-934.09 for a child under 18 years of age to intercept and record an oral communication if the child is a party to the communication and has reasonable grounds to believe that recording the communication will capture a statement by another party to the communication that the other party intends to commit, is committing, or has committed an unlawful sexual act or an unlawful act of physical force or violence against the child.
In contrast, the Florida House of Representatives has a companion bill that allows children and adult victims to intercept and record a communication:
(k) It is lawful under ss. 934.03-934.09 for a person to intercept and record an oral communication if the person is a party to the communication and has reasonable grounds to believe that the recording will capture a statement by another party to the communication that the other party intends to commit, is committing, or has committed an unlawful sexual act or an unlawful act of physical force or violence against the person.
Under the Senate version, if a person 18 or over “intercepts and records” an incoming telephone communication at his or her home or office to gather evidence that someone is threatening to kill you, your family, your children, or burn down your home or office, this remains a crime under Chapter 934 F.S. et. seq. if you push the “record” button on your answering machine.
Furthermore, get this, the criminal that threatened you and your family can sue you for monetary damages under Chapter 934 for “recording” the conversation without the criminal’s consent.
Furthermore, under Chapter 934, the criminal can have his attorney exclude (suppress) the “recording” in any criminal trial against the criminal for making the threatening phone call.
In 1985 the Florida Supreme Court faced another absurd result in State v. Anthony Inciarrano, 473 So.2d 1272, 10 Fla. L. Weekly 340 (Fla. 06/27/1985).
In that case Michael Phillips was murdered by Anthony Inciarrano in Phillips’ own business office in a deal gone bad.
With foresight of a conflict, Phillips activated a tape recorder to capture his conversation with Inciarrano. Investigators discovered this recording after the murder. The “recording” captured, “the sound of a gun being cocked, five shots being fired by Inciarrano, several groans by the victim, the gushing of blood, and the victim falling from his chair to the floor” as recognized by the Florida Supreme Court.
Yet, now the Florida Senate in CS/SB 542 wants to suppress that recording because the murder victim, Phillips, is 18 or over and does not qualify for the child violence protections afforded in CS/SB 542.
In a separate extortion case, another crime, the Florida courts have again absurdly ruled that a crime victim of extortion in his own home cannot “record” evidence of the extortion against him in State v. Walls, 356 So.2d 294 (Fla. 03/02/1978).
As a result of the Court’s ruling in Walls that means that the victim of the crime of extortion, Francis Antel, committed a felony crime under Chapter 934 by recording the crime against him, was subjected to a possible civil damages suit by the extortionists, and under Chapter 934 the “recording” would be suppressed as evidence of extortion in the criminal extortion case against Harold Walls and Stanley Gerstenfeld, the criminals.
John “Jack” Scarola, Prosecutor in State v. Walls Case
The prosecutor in the Walls case, John “Jack” Scarola sent this letter to this reporter in 1994:
September 30, 1994
Mr. Kevin Wood
6935 Wood Place
Panama City, FL 32404
RE: Security of Communications Act
Dear Mr. Wood:
It was a pleasure speaking with you today concerning F.S. Chapter 934, the Security of Communications Act, and your interest in modifying the consent provisions of the act to allow for expanded lawful recording of communications with one party consent. As the Assistant State Attorney who prosecuted the case of State v. Walls (which was the subject of an appellate opinion reported at 356 So.2d 294), I am well aware of the potential injustices which can result under the existing legislative prohibitions, and I strongly favor modifying Florida law to conform with the existing Federal standards.
In response to your inquiry concerning the victim in the Walls case, Francois Antel, I can confirm that criminal charges against Mr. Antel for violation of F.S. Chapter 934 were considered and rejected. While there was clearly sufficient evidence to support such charges – Mr. Antel had voluntarily “confessed” and delivered the violative recording – we recognized that such a prosecution would be a gross miscarriage of justice.
Good luck in your efforts.
Sincerely,
JACK SCAROLA
JS/as
Recently Bay Community News started a petition to appeal to the Florida Legislature to properly fix the defects in the Florida “interception” law, Chapter 934 et. seq. by repealing the 1974 Nixon/Watergate “John Dean Amendment.”
Attorney John “Jack” Scarola signed the petition leaving this comment as to why he signed the petition:
John Scarola WEST PALM BEACH, FL, WROTE:
“The restrictions on one party consent to recording should be amended
to permit the warrantless interception and recording of communications
by non-law enforcement individuals where there is a reasonable basis
to anticipate that the communication will constitute evidence of the
commission of a crime.
“It is time to set the post-Watergate paranoia of legislators aside
and untie the hands of criminal prosecutors to be able to use reliable
and compelling evidence voluntarily spoken by criminals themselves.”
To jump in time to the present, the Florida Supreme Court has continued its absurd rulings in Richard Russell McDade v. State of Florida.
It is the McDade case that has prompted an uneducated, uniformed knee-jerk reaction by the Florida House and Senate in CS/SB 542 and HB 7001.
In the McDade case a child, initials B.S., was habitually raped and sexually battered by a stepfather, Richard Russell McDade, from when she was 10 years old and into her teens under threat of deportation of her and her mother back to Mexico if she didn’t comply with the sexual demands of McDade, an ice cream truck driver that has regular contact with children.
Nobody believed the child including her mother, church personnel, or her doctor.
In her teens now, her boyfriend gave her an MP3 digital recorder and the child used this audio recorder in her own home with McDade to “record” McDade’s own confessions.
B.S. provided the recording to law enforcement and based on the recording McDade was immediately arrested and prosecuted for two capital felonies and other sex offense charges.
The prosecutor used the “recording” to prosecute McDade and he was convicted and sentenced to two life sentences for sexual battery on a child under the age of 12 and other sexual offense sentences, particularly sexual battery on a child by a custodian of the child.
McDade’s appeal eventually ended up in the incompetent hands of the Florida Supreme Court.
The Florida Supreme Court in an absurd ruling ruled on December 11, 2014 that because McDade did not “consent” to the incriminating recording under Chapter 934 F.S. that therefore the recording should be suppressed as evidence in a new trial.
McDade could go free to threaten other children, possibly customers of his ice cream truck business.
McDade was released from prison and the custody of the Florida Department of Corrections and has now been returned to the Lee County, Florida, County Jail where he remains today held without bond awaiting a new trial.
McDade has been placed in segregation at the Lee County Jail apparently for his own safety awaiting his new trial.
Chapter 934 F.S. was polluted in 1974 when former Florida senator W.D. Childers submitted an amendment to change Florida from a “one party consent” state to an “all party consent” state.
The 1974 amendment by Childers was a knee-jerk reaction to the Nixon Watergate scandal of 1973 to 1974 involving recordings and interceptions made by the Nixon administration.
The 1974 amendment by Childers has been dubbed the “John Dean Amendment” in honor of Nixon’s chief legal counsel.
The 1974 “John Dean Amendment” was passed by the Florida Legislature to protect politicians, not victims of crime or innocent citizens, or children, in Florida who merely want to “make a record” of their own communications with others to which they are a party particularly as victims of crime.
Florida needs to repeal the 1974 “John Dean Amendment” to restore Florida law to harmony with federal law and the vast majority of other states in this country.
The bottom line is that the Florida Senate has crapped on many other victims of crime and the innocent people of Florida who merely want to make an accurate “record” of their own conversations with others.