By Russell Smith

Joseph Bray recently did something we wager he will never do again:  he forgot his wife Sonja’s birthday. She took umbrage at this flagrant violation of a Marriage Commandment – and a fight ensued. Things turned physical, Mrs. Bray called the police, and when they arrived, she told them that that her husband had pushed her onto the couch, grabbed her near the neck and balled up his fist, though he didn’t strike her. Mr. Bray was arrested and charged with battery.

After a night in jail, the couple appeared before Judge John “Jay” Hurley for a “first appearance hearing.” Mrs. Bray informed Judge Hurley that she loved her husband, she wasn’t hurt and she didn’t fear him.

It was just before Valentine’s Day, and since this seemed like a “minor incident,” Judge Hurley decided to play Cupid. He agreed to release Mr. Bray on his own recognizance – but only if he took his wife out for a birthday celebration, with a card, flowers, a Red Lobster dinner, and bowling.

The story quickly became a media darling, appearing on ABC, CBS, CNN, MSNBC, and NPR. It was even satirized by “Saturday Night Live.” (On Weekend Update, Seth Meyers discussed the story and deadpanned:  “Red Lobster—where people are sentenced to dinner.”) Some pundits felt that Judge’s Hurley’s order was romantic , and some argued that it didn’t take the domestic violence charges against Mr. Bray seriously enough.

And still others wondered: “Can judges really order people to do things like this?”

The Wall Street Journal Law Blog posed the question, but stopped short of answering it. Problematically, the Law Blog’s analysis relied on a case dealing with sentencing a defendant who had already been convicted of a crime – not, as in the Brays’ case, a judge’s power to place conditions on the defendant’s release prior to trial.

So while it is true that a federal appellate court held that it was not a cruel and unusual punishment for a judge to sentence a mail thief to stand outside a post office holding a sign that read: “I stole mail. This is my punishment” – it’s also irrelevant.

In fact, a review of the applicable law reveals that Judge Hurley lacked the authority to order the Brays a birthday dinner.  

The Florida Rules of Criminal Procedure set out in great detail the permissible steps a judge can take at a criminal defendant’s first appearance. Rule 3.131, which governs pretrial release, has a presumption that in all cases, the judge should issue a “no contact order,” requiring the defendant to refrain from contacting the victim in any way, whether in person, by phone, email, text message, Facebook post, tweet, smoke signal – okay, you get the picture. If you watch this video of Mr. Bray’s first appearance hearing, you’ll see Judge Hurley say he is opting not to issue such an order. No problem – Rule 3.131 permits the court to “modify the condition precluding victim contact if good cause is shown and the interests of justice so require.” Judge Hurley apparently felt that because this was a “minor incident” and Mrs. Bray was willing to reconcile with her husband, good cause existed not to mandate the couple separate during the pendency of this case.

From a policy perspective, it is a good thing when judges tailor no contact orders to individual cases. Blindly issuing such orders disproportionately harms indigent defendants who have trouble finding new places to live.  And for cases like the Brays’, it’s overkill.

But Judge Hurley didn’t just refrain from issuing a no contact order.  He went one step further.

He ordered togetherness.

There is nothing in the law which grants him this power.

At this stage in the proceedings, the court has three goals in mind: to protect the community from risk of physical harm, assure the presence of the accused at trial, and assure the integrity of the judicial process. For serious crimes, a judge may determine that no form of release would be consistent with these goals, so he or she can remand the defendant (send him back to jail with no opportunity to post bail). Otherwise, Florida’s Rule 3.131 provides judges with a list of conditions they can place on the release of the defendant. There is no wandering or straying from this list, as the Rule is airtight.  It states that the court “shall impose any combination of the following conditions.” That means what it says.  Judges have absolutely no discretion to invent new conditions, no matter how “tasty and sweet” those conditions may be.

First, a judge may release a defendant on his own “recognizance.” This is actually no condition at all. The defendant is simply released and expected to return on his own to fight the criminal charges against him.

Second, a judge can condition a defendant’s release on posting a specified amount of bail. This incentivizes a defendant’s return to court, because if he doesn’t, he forfeits the bail money.

Third, a judge may place “restrictions on the travel, association, or place of abode of the defendant during the period of release.” This is the section which gives judges the authority to issue no contact orders and other temporary restrictions on the defendant’s rights. Judge Hurley’s order that Mr. Bray affirmatively treat his wife to a dinner and bowling? Doesn’t satisfy this condition.

Fourth, a judge may place a defendant in “the custody of a designated person or organization agreeing to supervise the defendant.” This is how things like pretrial house arrest are organized. Not applicable to the Brays’ case unless the court secretly organized with a Red Lobster hostess to keep an eye on Mr. Bray.

And lastly, a judge may impose “any other condition deemed reasonably necessary to assure [the defendant’s] appearance.” In issuing his order, perhaps Judge Hurley assumed this catchall provision would authorize a Red Lobster dinner, but it almost certainly doesn’t. This provision only enables judges to come up with creative ways to make sure that the defendant returns for his next court appearance. Unless the judge worried that Mrs. Bray would literally kill her husband if she didn’t get an evening of fine dining and bowling, it’s difficult to grasp how a dinner date makes it more likely for Mr. Bray to return to court.

None of the acceptable conditions on pretrial release authorize Judge Hurley’s order, which though clever, has no basis in law.

The order was invalid and from a legal standpoint and Mr. Bray can just forget all about it. Then again, that’s how he got into trouble in the first place, isn’t it?