Imprisoned for sex on the beach

The dire consequences of succumbing to passion are legendarily numerous, but a couple’s felony conviction for having sex on a Florida beach has to fall at the extreme end of the spectrum. Last summer Jose Caballero and his girlfriend, Elissa Alvarez, were seen cavorting on the sand on Cortez beach in Bradenton, engaging in some kind of sexual maneuvering, the exact nature of which nobody seems to know. Witnesses called the police, and the two were arrested and put on trial for “lewd and lascivious exhibition,” a felony under state law. After being convicted on Tuesday, both will have to register as sex offenders. Alvarez faces jail time, and because Caballero has a previous drug conviction, he will likely be given the maximum sentence, 15 years in prison.

The Caballero-Alvarez case exemplifies many of the dysfunctions of American criminal justice. The notorious overzealousness of prosecutors was on full display, with the state attorney openly admitting that he wished to make an example of the couple, who were tourists to the area. It needs to be “well known to the community, what will be tolerated and what won't be,” he said.

The couple were not helped by the text of the law itself. The Florida statute in question criminalizes any act that simulates sexual activity, if someone under 16 witnesses it. (Prosecutors called a 3-year-old girl to testify.) It’s so broad that under its terms, any time parents are walked in on by their child during a liaison, they technically become unconvicted sex offenders.

But there’s another reason Caballero and Alvarez are now lifelong felons after a rollick in the sand. The pair’s lawyer, Ronald Kurpiers, has been disbarred or suspended in multiple states, and until last year was prohibited from practicing in Florida. Kurpiers was arrested for forgery after he faked his client’s signatures on legal documents, and put a fabricated notary stamp on them. He tried to swindle the court out of a large sum of money to represent indigent clients, lying and saying he was taking their cases pro bono when he was in fact charging them. It was a deeply calculated and devious embezzlement scheme.

The perils of hiring Kurpiers are starkly evident. His strategy at trial was to insist that no witness could testify to having seen penetration. But since the law doesn’t require any evidence of penetration, this argument was colossally misguided. No wonder the jury took only 15 minutes to convict the pair.

Sadly, the representation of Caballero and Alvarez is anything but untypical. Often overlooked in discussions of criminal justice, amid abuses by police and prosecutors, is the serious crisis in American defense representation. Though the Sixth Amendment mandates the right to counsel, courts have maintained very low requirements for the actual quality of this counsel, with the result that sleeping and intoxicated lawyers have both been held to provide “effective” assistance. Those who purchase cheap lawyers often get precisely what they pay for, with courts exercising almost no meaningful oversight.

But this shameful state of affairs is most evident America’s shabby public defender system. In 2004, in a comprehensive evaluation that still holds, the American Bar Association found that “thousands of persons are processed through America's courts every year either with no lawyer at all or with a lawyer who does not have the time, resources or, in some cases, the inclination to provide effective representation.” The problem is straightforward: Giving a truly rigorous defense requires an extraordinary amount of resources, and public defenders are simply stretched too thin to possibly execute their duties capably. In many cases, what results is “meet-em-and-plead-em” justice, with lawyers often spending only a few minutes on each case before entering a guilty plea.

The consequences to this lack of competent counsel are often deadly. In Texas, indigent capital defendants unfortunate enough to be assigned to attorney Jerry Guerinot are virtually guaranteed death, since his failure to conduct even basic case investigation has sent dozens of his clients to their executions. By contrast, a well-funded and capable public defender’s office can keep nearly all of its clients from being put to death. The quality of the defense lawyer is a key determinant of who lives and who dies, independent of how strong the evidence may be or who the prosecutor is.

Our society’s inequality in legal defense reflects our society’s larger inequalities. Since one can always pay for a better lawyer, this results in the powerful going free, where the nameless poor are shuffled into the penitentiary by the thousands. Such discrepancies explain why a New Orleans man is serving 13 years of hard labor for the possession of two grams of marijuana, while the wealthy drunk-driving teen whose “affluenza” led him to kill four people was permitted to recover in a comfortable California treatment facility. Because it’s so dependent on the quality of one’s counsel, the right to a fair trial is no longer a basic guarantee, but a purchasable commodity.

The unjust felony conviction of Jose Caballero and Elissa Alvarez had many precipitating factors. The prosecutor saw an opportunity for public shaming, and Florida laws are draconian to begin with. Further, it might be worth pondering whether these charges would have been pursued quite so harshly had the perpetrators been frisky white University of Florida students. But there’s also a serious disadvantage to being represented by a disbarred forger with no legal knowledge. As Jose Caballero is sent away possibly for the next 15 years of his life, we can see what happens when the Sixth Amendment’s protections are drained of their substance. Tourists who are tempted by the romance of Florida beaches should make sure to bring a good attorney along.