FACDL Defender Summer 09 by Laura Sullivan

From the President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 RICHARD HERSCH

Editor’s Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 FLORIDA ASSOCIATION OF CRIMINAL DEFENSE LAWYERS Post Ofﬁce Box 1528 Tallahassee, Florida 32302 800 / 369-9503 850 / 385-5080 Facsimile: 850 / 385-6715 E-mail: facdlinfo@facdl.org Web page: www.facdl.org EDITOR & PUBLISHER Brian Tannebaum Kathryn L. Bradley, CAE EXECUTIVE COMMITTEE President – Richard Hersch President Elect – Paula Saunders Vice President – Brian Tannebaum Treasurer – Nellie L. King Secretary – Derek Byrd Immediate Past President – A. Russell Smith DIRECTORS AT L ARGE James S. Benjamin Lisa Call Robert B. Fisher Richard A. Greenberg John M. Howe Victoria McFadyen

Andrew B. Metcalf James T. Miller Hal G. Schuhmacher M. Stephen Stanﬁeld William R. Wade Barry M. Wax

CHAPTER REPRESENTATIVES Russell L. Akins Tania Alavi Lisa Anderson Kevin T. Beck Chris Brown James H. Burke, Jr. Carlos Canet Chad Cronon Bob Dillinger D. Todd Doss Ronald L. Ecker, II John Fernandez Miguel C. Fernandez, III H. Scott Fingerhut Ian Goldstein Randall Grantham Robert H. Gray Bobby Guttridge Ross Haine, II Robert Harrison Wayne F. Henderson Lisa M. Hurley Lisa Jama M. James Jenkins Jason W. Kreiss Michael H. Lambert

Gregg Lerman Warren W. Lindsey Beatriz Llorente Domenic Lucarelli Michael P. Maddux Sam Masters Brett McIntosh David Mengers Gene Mitchell David Oberliesen A. Mariah Park Marianne S. Rantala Gary A. Roberts Leonard A. Sands Ian S. Seitel Jason Smith Teresa J. Sopp Kenneth M. Swartz William Grey Tesh Ronald N. Toward Varinia Van Ness Melissa Vickers Robert Wesley Eugene Zenobi Nick Zissimopulos

EXECUTIVE DIRECTOR Kathryn L. Bradley, CAE 

The Florida Defender is published quarterly by the Florida Association of Criminal Defense Lawyers. The material contained herein is solely for informational purposes. Opinions expressed herein may not necessarily reﬂect the views and/or policies of FACDL. Editorial matter, change in address, and correspondence regarding advertising should be mailed to P.O. Box 1528, Tallahassee, Florida 32302. Copyright © 2009. Florida Association of Criminal Defense Lawyers. All Rights Reserved.

2 • FLORIDA DEFENDER

B R I A N L . TA N N E B A U M

Executive Director’s Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 K AT H R Y N B R A D L E Y

ORLANDO! FACDL’S 23RD ANNUAL MEETING REGISTRATION . . . . . . . . 7 FACDL NEWS:

•FAIRLAWS “Brown Bag It” Campaign . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 •FACDL Strike Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9 •FACDL Calendar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 •Life Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 •FACDL-Miami Members Offer Pro Bono Service . . . . . . . . . . . . . . . . . . . . . . . . . . 65

CLE SEMINAR MATERIALS: Death Is Different XV Death Penalty Seminar . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

You Never Said That Before: A Brief Review of Negative Impeachment. . . . . . . . 11 A . M A R G OT M O S S

CLE SEMINAR MATERIALS: 2008 Criminal Law Certiﬁcation Review Seminar . . . . . . . . . . . . . . . . . . . . . . . . . 14

“Crack” in the Prison Door: Retroactive Cocaine Base Guidelines Amendment – One Year Later . . . . . . . . . . 15 LISA CALL

CLE SEMINAR MATERIALS: Showcase on Sentencing in Florida VI Seminar . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Evaluating Mental Competency in Juvenile Defendants: A Guide for Florida Attorneys . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 LAURA KLOSSNER

Eleventh Circuit Case Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 K E N S WA R T Z

CLE SEMINAR MATERIALS: Ethics Made Fun! Seminar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Is the Prescription Junkie Really “Trafﬁcking” ? . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 DENIS M.

DEVLAMING

AND KYM RIVELLINI

The 3:32 a.m. Sleepy Defense Attorney’s Guide to Answering the 24/7 Line . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 JOE BODIFORD

CLE SEMINAR REGISTRATION: Blood, Breath & Tears XVI Seminar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

DUI Notes: DMV Fought the Law and the Law Won . . . . . . . . . . . . . . . . . . . . . . 45 M I TC H S TO N E

Ask BuddyBob . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 From the Pits: Treat or Punish Addicts? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 DENIS M.

DEVLAMING

Florida Case Law on CD Order Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Death Is Different: Florida Death Penalty Case Law Update . . . . . . . . . . . . . . . . 51 PETER N. MILLS

FACDL’s Bookshelf: Review of The Challenge: Hamdan v. Rumsfeld and the Fight Over Presidential Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 TERI SOPP

Random Jaded Thoughts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 B R I A N L . TA N N E B A U M

FACDL Membership Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

FROM THE PRESIDENT

“Wings Level” by

Hal Schuhmacher. Expanded to a day and a half three years ago, no other seminar teaches the nuts and bolts of handling DUI cases like BBT. “Death is Different” keeps getting better and better with each year that Barry Wax continues to handle the controls of this three day seminar. Despite the changes in the

f you hang around a general aviation airport long enough all sorts of lessons for life can be learned. One of them involves checklists. In the wisdom of aviation it is known that there are three types of pilots that use checklists: students, professionals and smart ones. While a checklist won’t get an aircraft off the ground (that requires two things, airspeed and money), they are important to monitor the condition of any craft at important junctures. There are checklists for take-off, landing, emergency procedures, shutdown and even for straight and level cruise. By the time you read this FACDL will be on the runway waiting to take off for its latest ﬂight with a new president at the “controls,” speciﬁcally, the very capable Paula Saunders. But as the gavel (the helm, if you will) is passed, the need to run through the checklist one last time presents itself. A review of all critical systems is in order.

CLE “Blood Breath and Tears” still rocks on as the best DUI seminar in Florida under the capable control of

iStockphoto.com | © Jake Holmes

Richard Hersch

conﬂict counsel system, attendance continues to remain strong. Speaking of which, the “Criminal Law Certiﬁcation Review” again showed strong participation and, in its two day format, still scores as the best general program produced in Florida.

LEGISLATION The Legislative Committee, chaired by President-Elect Brian Tannebaum, with the able assistance of Stephen Stanﬁeld and Lisa Hurley,

has taken FACDL to a new level. The year started with a search for a new lobbyist occasioned by the unfortunate passing of Linda Cox. It was feared that acclimating to a new lobbyist this year (the winner: Jorge Chamizo and his firm, Floridian Partners) would handicap our efforts. Not so. Even with the Legislature bent on cutting funding in ever y conceivable fashion, they still found the time to throw us a challenge in the way of the deposition bill. Seeking to strip depos from third-degree felony cases (except for “good cause”), this bill had a priority push from the Speaker of the House. FACDL launched a timely email and telephone “attack” on two committees. By the participation of all of our members from across the state, our message was heard. The bill never made it to the ﬂoor of either house. Many other bills were quietly killed with the assistance of our new team of lobbyists. Kudos to Brian and the hundreds of members that participated. “Just wait ‘til next year” has a whole new, and tremendously positive, meaning in this area. SEE PAGE 6

FLORIDA DEFENDER • 3

THE EDITOR’S NOTES by

Brian L. Tannebaum

All Things (or at least 3) Come to an End —SCHOOLHOUSE ROCK, 1973

ith this edition of The Defender, three things happen. Three things end. My term as Vice President, my role as Editor, and my ﬁve-year term as Legislative Chair. The answer to the common question of “How do you have time to practice law?” is still a snarky “I don’t watch Lost, 24, or spend half my days chasing money buried deep in silly payment plans better known as ‘non-payment plans.’ ” Spending as much time as I have before the legislature has caused me to stop complaining, as much, about judges. As legendary St. Pete Times political columnist Lucy Morgan wrote the day before I penned this column: “Something strange comes over state legislators when they gather inside the Capitol. It’s like everyone’s IQ drops below room temperature — and in a building that is always colder than necessary lest someone break into a sweat — this is a dramatic drop.” There is so much I can say about what goes on in Tallahassee, but to sum up my ﬁve years, the legislative process in Florida is worse than ever. Term limits, 4 • FLORIDA DEFENDER

whether you believe in them or not, have created a system of getting elected at 29 years old, taking “ideas” to Tallahassee only to learn that if leadership is what you want, in the next eight years, you will do and say as told. The little independent thought that exists up there is among legislators who realize leadership is not in the cards for them, or the couple who iStockphoto.com | © Atlee Mercer

Three is a magic number, Yes it is, it’s a magic number. Somewhere in the ancient, mystic trinity You get three as a magic number.

Nothing happens quicker in Tallahassee than increases in criminal penalties and offenses, and it’s all a joke…

don’t care. “I don’t like this bill but I’m going to vote for it because I have a bill I need your vote on,” is as common as getting a plea offer in criminal court. Prosecutors and Sheriffs and DHSMV propose bad laws that are championed by unknowing legislators who don’t care if they are unconstitutional, cost money, or will clog up the

system. When you have to run every two years, quickly making a misdemeanor a felony, or adding a minimum mandatory, plays well over free danish and coffee at the local town hall. What else are you going to do in two years? Fix education? Create tax incentives for investment? Nothing happens quicker in Tallahassee than increases in criminal penalties and offenses, and it’s all a joke, played to the people under the most famous two words in politics, all together now — “public safety.” Over 80% of the members of the Florida Legislature are not lawyers. Some who are, hate lawyers. There are lawyers sponsoring anti-lawyer legislation and championing it while ignoring that they in fact have a Bar card. I believe any lawyer-legislator who sponsors anti-lawyer legislation should resign from The Florida Bar. I hope as well that someone out there in FACDL land runs. So you lose? Run. Yes, you in the conservative area you live in where criminal defense lawyers are the scourge of the planet. Run. But I digress. The job of the FACDL Vice President is to put together four issues of The Defender. For those keeping count,

SEE PAGE 6

EXECUTIVE DIRECTOR’S REPORT

Goodbye, Martha! We Wish You Well! by

Kathryn Bradley, CAE

ACDL Membership Director Martha Rodriguez has left FACDL and moved on. I will miss her very much, and I’m sure all of you will, also. Martha came to the United States with her family as they ﬂed Castro’s Cuba when she was three years old. They arrived in New York with just the clothes on their backs and they spoke only Spanish. Her parents and grandparents had been professionals in Cuba, and they quickly adapted to their new country and became proud United States citizens. When she was a young teen her family relocated to Miami. Soon afterward her brother John got

married, and Jose Rodriguez, his best friend from New York, came down to be his best man. Jose saw that “little Martha” had grown into a lovely young woman, and it was love on the spot. The newlyweds moved back to New York, and Jose was working for the Port Authority of New York on 9/11 when he and Martha lost some of their closest friends in that tragedy. A rising star in his profession, Jose soon moved with his young family to Tallahassee to work for Figg Engineering Group, where he designs bridges all over the world. And that’s how Martha came to FACDL. With her three children in school all day, Martha sought employment outside her home, and FACDL was lucky enough to get her. If you haven’t met

her in person, most of you have spoken with her on the telephone. You could hear the smile in her voice when she talked to you about your FACDL membership and the services we offer. Outgoing and friendly, Martha was always ready to help, and she did it with sincerity and professionalism. Martha’s legacy with FACDL is the website, and all the features she inspired and implemented. It didn’t matter what we wanted to do, Martha found a way to do it, and put it on the website. It was her baby, and she poured her enthusiasm into it. As this issue goes to press I am interviewing candidates to fill the position. No one will ever replace Martha, and all of us will miss her. We wish her the ver y best, always. 

It didn’t matter what we wanted to do, Martha found a way to do it, and put it on the website. …She poured her enthusiasm into it.

FLORIDA DEFENDER • 5

FROM THE PRESIDENT • from page 3

AMICUS COMMITTEE Mike Ufferman has been busy this year. Comments on rules to the Florida Supreme Court, a favorable opinion from that court, a Petition for Cert to the United States Supreme Court, and participation on several District Court cases are just some of the things that Mike and the Amicus Committee has worked on. FACDL will support Robert Harrison on intervention in the FDLE v. CMI declaratory action (think Intoxilyzer) and will be requesting amicus status on the Pelham/McLaughlin certiﬁed conﬂict (applicability of the Fourth Amendment in DUI administrative suspension proceedings). Great work, Mike.

STRIKE FORCE Headed by Past-President Donnie Murrell (also the Chair of the Criminal Law Section of The Florida Bar), our Strike Force responds when any of our members are faced with contempt proceedings. Once again, none of our members got held in contempt due to the prompt intervention of Donnie and the Strike Force.

MEMBERSHIP With the total number of members holding strong, FACDL has focused on increasing young lawyer participation. For the second year, FACDL has offered free membership to lawyers with 0-3 years of experience. A new chapter in St. Augustine and the resurgence of the Broward and Hillsborough chapters has complimented the strong participation of the local chapters from Key West to Pensacola.

EXECUTIVE COMMITTEE FACDL is blessed with committed, talented lawyers slated to head the organization. Paula Saunders, Brian Tannebaum, Nellie King, Derek Byrd, all persons with both an understanding of the mission of FACDL and vision for advancement of the organization and our members. 6 • FLORIDA DEFENDER

ADMINISTRATION The day-to-day operation of the FACDL emanates from Tallahassee. Our Executive Director, Kathryn Bradley, has this organization running like a finely tuned Swiss watch. Although Membership Director Martha Rodriguez has recently left FACDL (after five terrific years), Kathryn will surely continue providing the excellent administrative service that she has for the past decade and a half. I have to give Kathryn special thanks, because she quietly makes everything happen in a calm and orderly fashion. We certainly could not provide the service to our members without her

EDITOR • from page 4

this is number four, which you are reading now that you have returned from St. Pete (all except those “in trial” that weekend) for Paula Saunders’ installation as President, surrounded by four days of sun and fun and great CLE. I was the one saying, “Talk to our new VP, Nellie King,” to those who approached me about the magazine. Good luck Nellie, just leave a few voicemails for me and I’ll eventually call you back. Putting together any issue of The Defender requires a team of writers. My sincere thanks to those who, although they barely speak to me anymore, wrote for every issue — Mitch Stone (whose descriptive prose on A/C units is worth the price of the magazine), Peter Mills, Ken Swartz, Past President Denis de Vlaming, President Richard Hersch, Kathryn Bradley, and of course, that drunk scoundrel BuddyBob. There is talk that Buddy will ﬁnally enter rehab next year at the Boone’s Farm Trailer Park. We’ll see. I also wish to thank the author of Random Jaded Thoughts, a tortured most cynical character. Judge Steven Rushing, thank you for allowing us to publish your cartoons and your offer to continue making them available to The Defender. Laura Sullivan, a name not previously mentioned here, is our designer, “can I make 12 more changes Laura,” and deserves a great deal of credit

dedicated service. Looking ahead, we see the nature of our work changing. Economic hard times have increased the number of cases ﬁled while removing resources from the system. Indigent services or paid cases, there is less money to allow us to do our jobs. FACDL is aware and working on the myriad of problems this creates. It is possible you might see my smiling face again on these pages (BillyBob is still out there). Thanks to all for a great year, and the opportunity to serve as your president. It is with both a sense of pride and sadness that I can announce the call-out of a pilot on short ﬁnal: Checklist complete. 

for this magazine, in addition to being a pleasure with which to work. This last issue has all the regulars and a slew of practical articles. Former public defender A. Margot Moss reminds us about that cool little negative impeachment thingie, current federal public defender Lisa Call enlightens us on the year since the United States Sentencing Commission injected a little fairness in the cocaine guidelines, Former President Denis deVlaming and Kym Rivillini (both Stetson grads, I went to law school with the smart one) helps us with a growing issue in our practices — trafﬁcking in prescription drugs. Joe Bodiford, not concerned over a 3 a.m. call to the White House, talks plainly about that 3:32 a.m. call to the criminal defense lawyer. Finally, Laura Klossner, who none of you probably know, writes our cover story, on incompetency and juveniles. The reason you probably don’t know her is because she’s not a criminal defense lawyer. She’s a law student. My work completed here, I move on to doing the traditional President-elect job – planning the next annual meeting. For those who keep asking, the meeting will be where we’ve never met for the annual. For outgoing President Pilot Richard Hersch, the location is N28° 28.7107´, W081° 27.777´. 

F o r t h e F i rst T i m e . . .

Orlando

FAC D L

23 ANNUAL MEETING RD

June 10-13, 2010 Loews Portoﬁno Bay Hotel at Universal Orlando® REGISTRATION FORM To register, return this form with the appropriate fee to: FACDL, P.O. Box 1528, Tallahassee, FL 32302 or Fax credit card payment to: 850 / 385-6715 or Register online at www.facdl.org NO TELEPHONE REGISTRATIONS, PLEASE.

FAC D L 23RD ANNUAL MEETING LOEWS PORTOFINO BAY HOTEL AT UNIVERSAL ORLANDO®

June 10-13, 2010 Experience luxury with an Italian

SEMINAR AND SOCIAL EVENTS

Earlybird After 5 / 15 / 10  FACDL Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $350 . . . . . . . . . $375 $  Public Defenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 275 . . . . . . . . . $300  Non-FACDL Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $395 . . . . . . . . . $450  Public Defenders (Non-FACDL Members) . . . . . . . . . . . . . . . . . . . . . $275 . . . . . . . . . $300

accent at the Loews Portoﬁno Bay

SOCIAL EVENTS ONLY No earlybird rates available

Porotino, you’ll enjoy the authentic

 Non-registered FACDL Members (includes Saturday night banquet) . . . . . $150 per person  Spouse/Guest Banquet Only. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $60 per person  Saturday Night Kids’ Party . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $40 per child Will this be your ﬁrst Annual Meeting?  Yes  No

at the stunning re-creation of the Mediterranean seaside village of music, food and warm hospitality of Italy, and you’ll be within easy walking distance of both Universal

 Check here if you do not want $10 of your registration fee to be contributed to the FACDL Political Action Committee (FAIRLAWS). This contribution does not affect the total amount of your registration and is not tax deductible. $

Hotel at Universal Orlando.® Here

Orlando® Resort theme parks and the Universal CityWalk® entertainment complex.

Total enclosed or to be charged to credit card listed below.

Refund Policy: Tuition refund less a $25 administrative fee will be made for cancellation received in writing by June 1, 2010. No refunds will be made after that time.

As a guest of Portoﬁno Bay Hotel, you can bypass the regular

Registration fee includes: Seminar sessions and reference materials, welcome reception, Friday reception, Saturday banquet and two continental breakfasts.

attraction lines! Just present

To register, complete the following form and mail with check or money order, OR you may fax your registration with completed credit card information and signature.

each participating ride and attraction’s express entrance. Plus, you’ll enjoy a host of other

NAME

special theme park beneﬁts.

ADDRESS CITY

STATE

BUSINESS PHONE

ZIP

F O R TH O S E U N A B L E TO ATTEND PRESENTATION:

COURSE MATERIALS FOR CLE CREDIT  FACDL Members or Public Defenders $224.63  Non-FACDL Members $274.63 Choose format:  MP3  CD  Downloadable Course material prices include sales tax, shipping and handling, plus audio materials, all written materials and information for posting CLE credits online.

your hotel room key card at

Total enclosed or to be charged to credit card listed below.

 Enclosed is my check payable to the Florida Association of Criminal Defense Lawyers, Inc., or please charge as indicated below:     CARD NO.

EXP. DATE

NAME ON CARD

SIGNATURE

For more information call 800 / 369-9503 or 850 / 385-5080 or FAX 850 / 385-6715.

EARLYBIRD REGISTRATION DEADLINE: May 15, 2010

HOTEL INFORMATION: FACDL is pleased to oﬀer these guest rooms for your enjoyment. A limited number of each room type is available and rooms may sell out, so make your reservation today! •Standard Room. . . . . . . . . . . . . . . . $189 •Kid Suite . . . . . . . . . . . . . . . . . . . . . . $189 •One Bedroom Portoﬁno Suite . . . . . . . . . . . . . . . $385

FOR ROOM RESERVATIONS CALL:

407/503-9000

Be sure to tell them you’re with FACDL to get the group rate. FLORIDA DEFENDER • 7

Heard around the Criminal Defense Bar:

“We need a stronger presence in Tallahassee.” “We should give some money to that candidate, we need to get involved in that race.” “We need to fund a campaign against that terrible bill.”

THE ANSWER:

Brown Bag It, Once A Week Currently, FACDL members who contribute to FAIRLAWS, our political action committee, volunteer $10 a year. If every FACDL member voluntarily contributed $5 a week, or the equivalent to skipping a cheap lunch and “brown bagging it,” our contributions would increase to over $500,000 a year. This money is used to support political candidates and participate in other political efforts that beneﬁt the Criminal Defense Bar.

$5 a week is $260 a year. Need a brown bag?

All participants of the Brown Bag Campaign will receive a FAIRLAWS lapel pin. Contributions to FAIRLAWS are voluntary and not tax deductible. Please make checks payable to FAIRLAWS and send to: FACDL, P.O. Box 1528, Tallahassee, FL 32302 or donate on line at www.facdl.org. 8 • FLORIDA DEFENDER

WHAT IS FAIRLAWS?

ACDL established FAIRLAWS (Floridians Associated to Insure Responsible Laws), a Committee of Continuing Existence, (CCE), to help further our legislative agenda in Tallahassee. This committee enables FACDL to continue to expand its lobbying efforts to ensure that Florida’s criminal statutes do not become more unjust. Our Legislative Affairs Committee has worked hard over the years to fight for positive changes in the criminal justice system and to defeat unjust laws. Your continued ability to take depositions in criminal cases is just one example of the success of our legislative efforts. FAIRLAWS gives us a powerful tool to continue that fight. In the upcoming legislative session we intend to address a range of issues that will affect the way every one of our members practices. We will be advocating for mandatory recording of interrogations, open discovery in DUI cases, unanimous verdicts to support imposition of death sentences, and, of course, adequate compensation for conflict counsel representation, to name a few. In addition to our current, exhaustive lobbying efforts, we believe we can make a greater impact in advancing our legislative agenda and have a greater voice in the Legislature by actively participating in the political process through member contributions. To help finance this important endeavor, $10 from the annual dues of each non-public defender member of the Association will be earmarked for FAIRLAWS. This is a voluntary contribution and members may choose not to participate. Membership dues will remain the same, either way.

THE BROWN BAG CAMPAIGN You can also make an additional contribution to FAIRLAWS by participating in the Brown Bag Campaign. We look forward to you becoming an integral part of this effort to strengthen our legislative efforts.

To make a contribution to FAIRLAWS in any amount, please complete the form below, make your check payable to FAIRLAWS and mail to: FACDL, P.O. Box 1528, Tallahassee, FL 32302

Your Association Working for You!

FACDL STRIKE FORCE

Or, fax your credit card information to (850) 385-6715 Or, go to www.facdl.org

NAME

ADDRESS

CITY

STATE

BUSINESS PHONE

ZIP

 Enclosed is my check payable to FAIRLAWS  Or, please charge my contribution: $_____________ Please check one:



 One-time



 Monthly

 Quarterly



 Semi-annually

 Billing address is same as above CARD NUMBER

EXP. DATE

ealous advocacy of unpopular clients or causes can result in personal attacks on the criminal defense lawyer. When that happens, FACDL is there to help. Whether as counsel of record or amicus, the FACDL Strike Force will defend you against undeserved charges of misconduct in any forum and at every level. Call, fax or email the chair of the FACDL Strike Force:

DONNIE MURRELL Telephone: 561/686-2700

NAME ON CARD

Fax: 561/686-4567

SIGNATURE

Email: ldmpa@bellsouth.net

QUESTIONS?

Call FACDL Headquarters at 800 / 369-9503

We will respond. You are not alone. FLORIDA DEFENDER • 9

Death is Different XV

FACDL’S FIFTEENTH ANNUAL DEATH PENALTY SEMINAR Approved by The Florida Bar for 15 hours of CLE credit

NOW AVAILABLE AS STREAMING VIDEO AT WWW.FACDL.ORG The Florida Association of Criminal Defense Lawyers brings quality Continuing Legal Education right to your computer!

SPEAKERS AND TOPICS INCLUDE: Creative Mitigation STEVE POTOLSKY

Advanced Voir Dire in a Capital Case

CONVENIENT: Watch on your own schedule

U.S. Supreme Court Update

ACCREDITED: Approved by The Florida Bar for 15 CLE hours

EUGENE ZENOBI

PAUL RASHKIND

INSTRUCTIVE: Produced by FACDL

When Life Depends On It: Supplementary Guidelines on Mitigation Function of Capital Defense Teams

PLEASE SEND “DEATH IS DIFFERENT XV” TO:

SEAN D. O’BRIEN

War and Peace in the Jury Room: Lessons from the Capital Jury Project

Name

PROFESSOR SCOTT SUNDBY

Business Address

Anatomy of a False Confession

City

DETECTIVE JAMES LEE TRAINUM

Forensic DNA: The Basics and Legal Applications DR. MICHAEL BAIRD

Businesss Phone COST:

DNA

ANDREA LYON

Creative Motion Practice TERENCE LENAMON

Florida Case Law Update PETER MILLS

Introducing Evidence of Insanity: Are You Crazy RICHARD ROSENBAUM

10 • FLORIDA DEFENDER

Zip

 $370.63 each for FACDL members (includes shipping & handling)  $420.63 each for non-FACDL members (includes shipping & handling) Upon receipt of payment, you will receive an email with your password and instructions for accessing the streaming video.

PROFESSOR KARIN MOORE

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You Never Said That Before: A Brief Review of

Negative Impeachment by

A. Margot Moss

ou’re at trial and the victim is testifying on the stand. The prosecutor asks, “And what happened next?” The victim states, “And then the defendant pulled out a sledgehammer and started swinging it at me.” At first you are confused. You furiously look through the police report. You quickly scour the victim’s deposition. You realize … he’s never said that before. And then, you get up to begin your cross-examination. Can you, the defense attorney, somehow point out to the jury that this witness is making up facts as he goes along and

that he’s never stated this ever before? Yes, we can. This article discusses the great tool of negative impeachment — its clear foundation in Florida law, some of its limitations and its great advantage at discrediting witnesses. Both the Sixth Amendment of the United States Constitution and Article I, section 16 of the Florida Constitution provide an accused with the right to confront adverse witnesses testifying against them. The right of cross-examination is “implicit in the constitutional right of confrontation, and helps assure the ‘accuracy of the truth-determining process.‘ ” 1 It is through cross-examination that the credibility of a witness is tested to the fullest. One of the most signiﬁcant tools of cross-examination is the ability to

impeach witnesses who have provided contradictory testimony. Florida statute 90.608 permits impeachment of a witness with a prior inconsistent statement — if Witness A testifies at trial that the defendant pointed a gun at her, defense counsel may impeach her with a previous statement given in which Witness A stated that the defendant had a knife. Clearly, defense counsel is not presenting the evidence to show that the defendant had a knife, but, rather, to demonstrate that the witness is not credible because she is changing her “story.” It is not necessary that the prior statement of the witness be under oath.2 It may be an oral or written statement, including a statement to police, a friend, a by-stander, a diary, etc. It is also well-settled that Florida law allows impeachment of a witness by FLORIDA DEFENDER • 11

the omission of a fact within a previous statement — so-called “negative impeachment.” 3 Similar to impeachment with a prior inconsistent statement, if Witness A states that the defendant pointed a gun at her in an armed robbery trial, but previously testiﬁed in a deposition and mentioned nothing about a firearm; defense counsel should point out to the jury that Witness A is suddenly changing her story. Defense counsel can question Witness A about the fact that she never mentioned a gun before. Thus, the State’s often-stated objection “Negative Impeachment” is, in fact, not a proper objection. When seeking to impeach a witness with an omission in a prior statement, counsel should establish what the circumstances of the previous statement were and that, at that time, the witness was articulating everything important that had happened. If the objective is to prove that the prior statement (with no mention of a gun, for example) is the correct version, the attorney may want to lead up to the revelation of the omission with the following questions: £ You were asked what happened by the police? £ You told them what happened? £ You told them everything that happened? £ You were being truthful? £ You didn’t intentionally leave anything out? £ You were not trying to mislead anyone? £ You knew that what you told them was important? £ That they would rely on what you told them? £ You didn’t need to tell them later that you had to add or change any part of your statement? After these initial questions before the jury, the lawyer then confronts the witness with the fact that she never mentioned in that prior statement to the police anything about a gun.4 There are, however, some limitations on the use of impeachment by omission. Although Florida law clearly recognizes negative impeachment as a means of 12 • FLORIDA DEFENDER

discrediting a witness, a court may still disallow questioning regarding a failure to assert a fact based on the subject matter of the omission. As with prior inconsistent statements, impeachment by omission is permitted only with non-collateral, material matters. If a witness in her previous statement failed to mention a fact which would have been natural to mention, the omission of the fact from the statement is admissible as an inconsistent statement. What is material, non-collateral, or “natural to mention” is often left to the discretion of the court. Some courts have found that the test of materiality is whether the cross-examining party could have, for some intention other than impeachment, introduced evidence on the subject in its case in chief.5 In other words, if the evidence is relevant to a material fact in issue, attempts to reveal a motive or bias for providing particular testimony, or demonstrates incompetency of a witness, it is permitted. Other courts have stated that the omission must be of a “crucial” or “critical” fact, without defining what these words mean. The Florida Supreme Court has previously stated that impeachment by omission “must be of a material, significant fact rather than mere details.” 6 A later case, however, determined that “any lack of detail about [the offense in the witness’ prior statement] was material and may constitute permissible impeachment.” 7 In this subsequent case, the Court examined whether defense counsel was permitted to impeach a witness with the omission of facts in a prior eight-hour videotaped statement, in which the witness testified he told the police everything, after providing very detailed trial testimony. Under these circumstances, the Court said negative impeachment was warranted. In other words, where the witness had been so specific and precise in a prior statement about other facts, the omission of mere details in that prior statement was appropriately brought to the jury’s attention. One clear fact which has been found material and, thus, fit for impeachment is the failure to previously state a crime took place. A witness’ prior statement omitting the occurrence of offenses with

which the defendant is charged is another instance in which negative impeachment appears fully permissible.8 In Davis v. State, 756 So.2d 205 (Fla. 4th DCA 2000), the defendant was charged with, among other offenses, aggravated battery and aggravated assault with a deadly weapon. The alleged victim testified at trial that, while she was eight months pregnant, the defendant shoved her and then waved a gun around. She had not mentioned these facts to the police in a statement she gave soon after the incident presumably occurred. The appellate court held that it was error for the trial court to prevent defense counsel from impeaching the witness with her prior omissions. These were the types of facts which “naturally would have been asserted” when the police questioned the witness as to what happened. Another patent example of a material fact is an admission, statement or confession of a defendant. Police Officer X testifies at trial that the accused admitted to committing the theft. Officer X’s police report, however, makes no mention of such confession. A police officer would appear unbelievable to testify that a confession is not a critical fact that would have been included in a report, had it actually occurred. In a different case involving a fact less obviously material, a court found that statements regarding the behavior of an accused was ripe for impeachment. In Varas v. State, 815 So.2d 637 (Fla. 3d DCA 2001), no dispute of fact existed other than the demeanor of the defendant. Here, the Florida Third District Court of Appeal held that defense counsel should have been permitted to attack the testimony of a witness by revealing the absence of any comment regarding the defendant’s demeanor in a previous report.9 Therefore, while there is still nothing definitive about what “material” means or how significant the omission must be, case law has shown that, at a minimum, the courts have evolved to having less stringent standards. What happens then if defense counsel is successful in impeaching a witness with an omission from a prior statement — can the prosecutor then bring

in a prior consistent statement (in which the fact was mentioned) to rehabilitate the witness? Florida Statute section 90.801(2)(b) governs the admissibility of a prior consistent statement. Generally, a prior statement consistent with the witness’ present testimony is considered hearsay and is not admissible to bolster the credibility of the witness.10 The prior statement becomes non-hearsay only when Aoffered to rebut an express or implied charge against the declarant of improper inﬂuence, motive, or recent fabrication.” 11 Thus, if the defense is claiming the witness was threatened to testify a certain way, the prosecutor may offer a statement of the witness prior to the threat to show that the threat did not inﬂuence or motivate the witness to change her testimony. Similarly, if the defense alleges at trial that a witness has recently changed her story, the witness’ pretrial statement which is consistent with the trial testimony may be offered to rebut the allegation of fabrication. It is important to note, however, the distinction between a recent fabrication and a general allegation that the testimony is untruthful. A prior consistent statement is not admissible simply because the defense attacked the credibility of a witness or claims a witness’ testimony at trial is untruthful.12 Where the defense’s theory is that the witness has never told the truth and the charges were false from the onset, a witness’ prior statement which coincides with their trial

testimony is not permitted.13 In conclusion, while many judges and prosecutors are unaware of the ability of defense counsel to negatively impeach a witness’ trial testimony, there is abundant case law which conﬁrms that Florida law plainly allows such practice. Therefore, be prepared. Bring your case law to your trial and gear up for use of this great weapon. Negative impeachment is an invaluable tool for the criminal defense lawyer which should be vigorously pursued.  1 Conner v. State, 748 So.2d 950, 955 (Fla. 1999) (quoting Chambers v. Mississippi, 401 U.S. 284, 295, 35 L. #d. 297, 93 S. Ct. 1038 (1973)). 2 Garcia v. State, 816 So.2d 554 (Fla. 2002). 3 Jenkins v. Anderson, 447 U.S. 231, 239, 65 L. Ed. 2d 86, 100 S. Ct. 2124 (1980) (“Common law traditionally has allowed witnesses to be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted.”); Garcia v. State, 816 So.2d 554 (Fla. 2002); State v. Johnson, 284 So.2d 198 (Fla. 1973); Varas v. State, 815 So.2d 637 (Fla. 3d DCA 2001); Davis v. State, 756 So.2d 205 (Fla. 4th DCA 2000); Sanjuro v. State, 736 So.2d 1263 (Fla. 4th DCA 1999); Harper v. State, 677 So.2d 72 (Fla. 4th DCA 1996); McGee v. State, 570 So.2d 1079 (Fla. 3d DCA 1990). 4 Again, it may not necessarily be that the initial version of the incident is correct, but that the believability of either of the witness’ statements should be examined. If this is the case, counsel will want to preface the introduction of the omission with a different set of questions. 5 Lawson v. State, 651 So.2d 713 (Fla. 2d DCA 1995); Dempsey v. Shell Oil Co., 589 So.2d 373 (Fla. 4th DCA 1991). 6 State v. Smith, 573 So.2d 306 (Fla. 1990) (emphasis added). 7 Garcia v. State, 816 So.2d 554 (Fla. 2002) (emphasis added). 8 Davis, 756 So.2d 205 (Fla. 4th DCA 2000).

Id. (agent testified at trial that defendant was nervous while being questioned, but failed to mentioned defendant’s demeanor in three prior statements). 10 See Rodriguez v. State, 609 So.2d 493 (Fla. 1992), cert. denied, 510 U.S. 830, 114 S. Ct. 99, 126 L. Ed. 2d 66 (1993); Va Gallon v. State, 50 So.2d 882 (Fla. 1951); McElveen v. State, 415 So.2d 746 (Fla. 1st DCA 1982). 11 Fla. Stat. ‘90.801(2)(b) (2009). The statute also requires that the declarant testify at the trial and is subject to cross-examination. 12 Jenkins v. State, 547 So.2d 1017 (Fla. 1st DCA 1989). 13 See Hebel v. State, 765 So.2d 143, 146 (Fla. 2d DCA 2000) (because the defense theory was that the victim Ahad fabricated the charges from the outset, not that she had ‘recently’ fabricated them,” the prior statement should have been excluded); Bertram v. State, 637 So.2d 258, 260 (Fla. 2d DCA 1994) (accused’s “defense was that the charges were fabricated, but not that they were recently fabricated”). Beware, however, of Monday v. State, 792 So.2d 1278 (Fla. 1st DCA 2001). In Monday, the defense impeached the victim of an alleged lewd and lascivious act with a prior inconsistent statement regarding the date of the offense. The prosecution then admitted the victim’s diary and called a police officer to testify regarding a prior consistent statement by the victim as to the date. The First District Court of Appeals ruled that this was not error. It stated that ‘the prior consistent statements were not offered as substantive evidence under the hearsay exclusion in section 90.801(2)(b), but rather to rehabilitate a witness who had been impeached…. A statement that is offered to impeach or rehabilitate a witness is not hearsay as defined in section 90.801(1), because it is not offered to prove the truth of the matter asserted.” Id. at 1281. Monday cites a number of federal cases which similarly permit a prior consistent statement to rehabilitate a witness. The court goes on to compare the rulings of appellate courts from other states, which are split on the issue. In conclusion, the First District Court of Appeals held that it is within the discretion of the trial judge to determine the admissibility of a prior inconsistent statement offered to rehabilitate a witness who has been impeached. 9

Margot Moss is a FACDL member and partner at Fowler White Burnett, P.A. As a member of the White Collar Criminal Defense Practice Group, she represents corporations and individuals in complex criminal prosecutions. She has tried over 100 cases ranging from charges of misdemeanors to murder. Prior to joining Fowler White Burnett, she worked for more than 10 years at the Miami-Dade Public Defender’s Ofﬁce where she represented clients in the felony crimes division, domestic representation unit and juvenile division.

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“Crack” in the Prison Door: Retroactive Cocaine Base Guidelines Amendment: One Year Later by

Lisa Call

n federal court, sentences imposed in drug cases are largely driven by the amount of drugs involved in the offense. One of the most serious policy debates within the criminal justice system centered around the different sentences imposed in cocaine base (crack cocaine) and powder cocaine cases. Historically, the 100-to-1 ratio involved in powder cocaine and cocaine base cases was one of the most discussed and criticized aspects to the Federal Sentencing Guidelines. In 2007, the United States Sentencing Commission lowered the base offense level for cocaine base offenses. On December 11, 2007, the Commission announced that it had made the amendments to the crack cocaine sentencing guidelines retroactive. The Commission delayed implementation of the retroactivity until March 3, 2008.1 One year after the implementation of the retroactive amendment, there have been more than 13,000 sentence reductions granted nationwide and more than 1,100 granted in Florida.2 As expected, the retroactive amendment has overwhelmingly affected young black men. Blacks received 86% of the reductions granted. Men received almost 94% of the reductions and the average age of the offender was 30 years old.3 The impact of the sentencing reduc-

tions in Florida has been signiﬁcant. (See table on following page.)4 The Commission’s decision to make the amendment retroactive was unanimous. The Commission made its decision after months of deliberation and years of examining cocaine sentencing issues.5 It solicited public comment on the issue of retroactivity and received over 33,000 letters or written comments, almost all of which were in favor of retroactivity.6

HISTORY OF COCAINE SENTENCING In May 2007, the Commission published a Report to Congress entitled “Cocaine and Federal Sentencing Policy” giving an overview and history of cocaine sentencing in federal courts.7 The AntiDrug Abuse Act of 1986 established the basic framework of statutory mandatory minimum penalties currently applicable to federal drug trafficking offenses. The quantities triggering those mandatory minimum penalties differed for

various drugs.8 In establishing the mandatory minimum penalties for cocaine, Congress differentiated between powder cocaine and cocaine base and provided significantly higher punishment for cocaine base offenses. As a result of the 1986 Act, federal law requires a five-year mandatory minimum penalty for a firsttime trafficking offense involving five grams or more of cocaine base or 500 grams or more of powder cocaine, and a ten-year mandatory minimum penalty for a first-time trafficking offense involving 50 grams or more of cocaine base or 5,000 grams or more of powder cocaine. When Congress passed the 1986 Act, the Commission was in the process of developing the initial sentencing guidelines. The Commission responded to the legislation by generally incorporating the statutory mandatory minimum sentences into the guidelines and extrapolating upward and downward to set guideline sentencing ranges for all drug quantities. Offenses involving five grams or more of cocaine base or 500 grams or more of powder cocaine were assigned a base offense level (level 26) corresponding to a sentencing guideline range of 63 to 78 months for a defendant in Criminal History Category I. Similarly, offenses involving 50 grams or more of cocaine base or 5,000 grams or more of powder cocaine were assigned a base offense level FLORIDA DEFENDER • 15

IMPACT OF SENTENCING REDUCTIONS IN FLORIDA Average Current Sentence in Months

Average New Sentence in Months

Average Percentage Decrease

Middle Florida

162

131

18.5%

Northern Florida

230

187

18.1%

Southern Florida

134

112

16.6%

District

(level 32) corresponding to a sentencing guideline range of 121 to 151 months for a defendant in Criminal History Category I.9 Cocaine base and powder cocaine offenses for quantities above and below the mandatory minimum penalty threshold quantities were set proportionately using the same 100-to-1 drug quantity ratio. Because of the 100-to-1 drug quantity ratio, the sentencing guideline penalties based solely on drug quantity are three to over six times longer for cocaine base offenders than for powder cocaine offenders with equivalent drug quantities, depending on the exact quantity of drug involved.10 In May 2007, the Commission sought to address this problem by promulgating an amendment to the Drug Quantity, effectively lowering the cocaine base guidelines by two levels. As the Commission explained, the amendment modiﬁed the drug quantity thresholds in the Drug Quantity Table so as to assign, for cocaine base offenses, base offense levels corresponding to guideline ranges that included the statutory mandatory minimum penalties, rather than guideline ranges that exceeded the statutory mandatory minimum penalties. Accordingly, ﬁve grams of cocaine base is now assigned a base offense level of 24 (51 to 63 months at Criminal History Category I), and 50 grams of cocaine base is now assigned a base offense level of 30 (97 to 121 months at Criminal History Category I). Cocaine base quantities above and below the mandatory minimum threshold quantities were adjusted downward by two levels.11 16 • FLORIDA DEFENDER

18 U.S.C. §3582(C)(2) MOTION

CORRECTION TO

In most circumstances, when the THE ‘BAD MATH’ ISSUE Sentencing Commission amends a In addition to amending the drug guideline provision, the amendment goes table itself, the Commission amended into effect only for future cases and does Application Note 10, addressing cases not impact previously sentenced defenin which an offender is held responsible dants. The Commission can, as it did for more than one controlled substance. here, make an amendment apply retroPrior to the November 1, 2007 amendactively. However, the power to make an ment, when a case involved more amendment retroactive than one controlled is seldom invoked by the substance, the guideCommission.12 lines directed that the The reduction is separate controlled not automatic. Since a substances each be federal court sentence is converted to a quantity generally ﬁnal upon its of marijuana using the imposition, the court drug equivalency table only has authority to and then combined for …Penalties based revisit it under limited one offense level.13 solely on drug circumstances. Under A troubling twist to quantity are three 18 U.S.C §3582(c), the the amended guidelines court may reduce the arose in the amended to over six times term of imprisonment Application Note 10. longer for cocaine previously imposed In many cases, using “in the case of a defenthe amended Applibase offenders than dant who has been cation Note, when a for powder cocaine sentenced to a term of quantity of cocaine base imprisonment based was added to a quantity offenders with equivaon a sentencing range of another controlled lent drug quantities. that has subsequently substance, the base been lowered by the offense level would Sentencing Commission … after considremain unchanged from the pre-amendering the factors set forth in section ment guidelines, based only on the 3553(a) to the extent that they are appliconversion of the cocaine base to its cable, if such a reduction is consistent equivalency. The Commission soon saw with the applicable policy statements this glitch and amended the Applicaissued by the Sentencing Commission.” tion Note, effective May 1, 2008. The Thus, every sentencing reduction had to Commission noted that “Application be effectuated by a district court judge Note 10(D) has resulted in certain in an Order reducing the offender’s sentencing anomalies in which some sentence. offenders have not received the beneﬁt

of the two-level reduction provided by Amendment 706 merely because of the conversion of cocaine base to its marihuana equivalent, and some offenders have received a reduction greater than intended.” 14 Under the second amended Application Note, if the offense involves cocaine base and one or more other controlled substance, the guidelines direct that the court determine the combined offense level, using the pre-amendment drug equivalency table, and then reduce the combined offense level by 2 levels. This reduction does not apply if 1) the offense involved 4.5 kg or more, or less than 250 mg, of cocaine base; or 2) the 2-level reduction results in a combined offense level that is less than the combined offense level that would apply if the offense involved only the other controlled substances.15

OTHER ISSUES Very quickly, it became clear that there were numerous, somewhat routine cases where there was no question that defendant was entitled to relief under the amended guidelines. However, there were also numerous areas of litigation, some of which continue in the district and appellate courts: Supervised Release / Violations of Supervised Release Generally, the district courts denied relief in cases where the defendant is currently incarcerated on a violation of supervised release. The Commission stated its view that “only a term of imprisonment imposed as a part of the original sentence is authorized to be reduced under this section. This section does not authorize a reduction in the term of imprisonment imposed upon a violation of supervised release.” 16 However, if the defendant had served longer on his sentence than he would have under the amended guidelines, the sentencing court may consider any such reduction that it was unable to grant to the prison sentence in a motion for early termination of a term of supervised release under 18 U.S.C. §3583(e)(1).

However, the fact that a defendant may have served a longer term of imprisonment than the court determines would have been appropriate in view of the amended guideline range determined under subsection (b)(1) shall not, without more, provide a basis for early termination of supervised release.17 Career Offender In United States v. Moore, 541 F.3d 1323 (11th Cir. 2008), the Eleventh Circuit held that the retroactive amendment to sentencing guidelines was inapplicable to sentences of defendants who had been sentenced as career offenders since the defendants’ sentences were based on the guidelines ranges applicable to career offenders and the defendant’ base offense levels played no role in the calculation of the ranges. The exception to the exclusion was if the sentencing court, in the original sentencing, found that the defendant’s criminal record score as a career offender overstated his criminal record under USSG §4A1.3 and sentenced him to the guidelines range without consideration to the career offender guidelines. In United States v. Argo, et al, No. 88-14591, there is a second series of career offender appeals pending before the Eleventh Circuit in a consolidated Petition for Hearing En Banc. Booker? Under USSG §1B1.10(b)(2)(A), the Commission instructed that except under limited circumstances, the court should not reduce the defendant’s term of imprisonment under §3582(c)(2) to a term that is less than the minimum of the amended guideline range. In United States v. Melvin, 556 F.3d 1190 (11th Cir. 2009), the Eleventh Circuit held that United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Kimbrough v. United States, ____ U.S. ____, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), do not prohibit Congress or the Sentencing Commission from limiting the discretion of a district court in reducing a sentence under §3582(c)(2). Concluding that Booker and

Kimbrough do not apply to §3582(c)(2) proceedings, the court in Melvin held that the district court is bound by the limitations imposed by §3582(c)(2) and the applicable policy statements by the Sentencing Commission. Keep Hope Alive In Kimbrough, the Supreme Court held that “under Booker, the cocaine Guidelines, like all other Guidelines, are advisory only,” and that “it would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence ‘greater than necessary’ to achieve §3553(a)’s purpose, even in a mine-run case.” 18 Thus, the sentencing judge can still consider the large disparity between the cocaine base and powder cocaine guidelines. Even though the Commission made a reduction in the base offense levels, there are still valid arguments that the amendment did not do enough to correct the disparity.19 For example, with respect to doses, one gram of powder cocaine generally yields five to ten doses, whereas one gram of cocaine base yields two to ten doses. Thus, 500 grams of powder cocaine — the quantity necessary to trigger the five-year statutory minimum penalty — yields between 2,500 and 5,000 doses. In contrast, five grams of cocaine base — the quantity necessary to trigger the five-year statutory minimum penalty — yields between ten and 50 doses.20 The Supreme Court stated that the holding in Kimbrough means “that even when a particular defendant in a cocaine base case presents no special mitigating circumstances — no outstanding service to country or community, no unusually disadvantaged childhood, no overstated criminal history score, no post-offense rehabilitation — a sentencing court may nonetheless vary downward from the advisory guideline range. The court may do so based solely on its view that the 100-to-1 ratio embodied in the sentencing guidelines for the treatment of cocaine base versus powder cocaine creates an unwarranted disparity within FLORIDA DEFENDER • 17

the meaning of §3553(a), and is at odds with §3553(a). The only fact necessary to justify such a variance is the sentencing court’s disagreement with the guidelines — its policy view that the 100-to-1 ratio creates an unwarranted disparity.” 21 Given that the amendment reduced but did not eliminate the disparity, a good sentencing presentation can still include policy arguments on whether the cocaine base guidelines produce a sentencing range that is greater than necessary. Overall, the amendment was a “modest” adjustment. However, for the 11,000 people nationwide and the 1,100 people in Florida who have seen their sentences reduced, in some cases signiﬁcantly, the modest change gives them a chance to begin their lives again much sooner than expected.  1 Press Release of U.S. Sentencing Commission, available at http://www.ussc.gov/PRESS/ rel121107.htm. 2 This article is being written in April 2009, using the last statistical report issued by the Commission in March 2009. 3 Statistics from “U.S. Sentencing Commission Preliminary Crack Cocaine Retroactivity Data Report,” December 2008 data; available at http:// www.ussc.gov/USSC_Crack_Cocaine_Retroactivity_Report_Mar2009.pdf, Table 5. 4 Id., Table 8. 5 The Sentencing Commission previously published reports critical of the cocaine base vs. powder cocaine sentencing schemes in May 2002, April 1997, and February 1995. 6 The United States Department of Justice

HOW CRIMINAL TRIAL LAWYERS RELAX opposed the amendment and its retroactive application. 7 Report available at http://www.ussc.gov/ r_congress/cocaine2007.pdf 8 Id. at pg 2. 9 Id. at pg 3. 10 Id. at pg 3. 11 Id. at pg 9. 12 When the Sentencing Commission intends for an amendment to apply retroactively, the amendment is included in USSG §1B1.10(c). There have been over 700 amendments to the Guidelines. However, only 28 amendments are listed in this section. 13 United States Sentencing Commission, Guidelines Manual, §2D1.1, comment. (n. 10)

(Nov. 2006) 14 Amendment 715, USSG §2D1.1, comment (n. 10), effective May 1, 2008. 15 USSG §2D1.1, comment. (n. 10), (Nov 2008). 16 USSG §1B1.10, comment. (n. 4(A)), (Nov 2008). 17 USSG §1B1.10, comment. (n. 4(B)), (Nov 2008). 18 Kimbrough, 552 U.S., at ______, 128 S.Ct., at 560, 563; see also Spears v. United States, 129 S.Ct. 840 (2009). 19 The Commission’s prior studies, available at provide statistics to support these arguments. 20 Id. at pg 63. 21 Spears, 129 S.Ct. at 842.

Lisa Call graduated from the University of Florida with a bachelor’s degree in business administration with high honors and a juris doctor with honors. She has been an Assistant Federal Defender in the Middle District of Florida, Jacksonville Division, since 2000. She serves on the FACDL Board of Directors as a Director at Large.

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The past year has seen numerous and signiﬁcant changes in both Florida and Federal Sentencing Practice. Last December, the Supreme Court came out with the Rita and Gall decisions. In April, the Court decided Begay v. United States and in June, the Eleventh Circuit decided United State v. Archer. On Nov. 1, a whole new set of sentencing amendments took effect. In Florida courts, numerous sentencing decisions have changed the sentencing landscape. Every practitioner needs to know about new legislation. Finally, there are Jimmy Ryce civil commitment issues which every practitioner needs to know in preparing for a sentencing hearing in Florida. In light of these dramatic developments, FACDL will be bringing you the nuts and bolts information you need to know when representing your client in a sentencing in both State and Federal court. S TAT E A N D F E D E R A L Welcoming Remarks

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FLORIDA DEFENDER • 19

A GUIDE FOR FLORIDA ATTORNEYS

Evaluating Mental Competency in Juvenile Defendants “At a recent meeting of the states’ administrators of juvenile correctional programs, the host asked one of them, ‘In your opinion, what are the three most pressing issues in juvenile justice facilities today?’ The administrator answered without hesitation, ‘Mental health, mental health and mental health.’” by

Laura Klossner

he juvenile court system began more than one hundred years ago as a rehabilitative court for young people who were “incorrigible” or wards of the state. Today, it resembles a younger version of adult criminal court, with offenses that make headlines.2 Since 1960, juvenile delinquency cases have increased over 300%.3 Between 1985 and 2004, delinquency cases involving person, drug and public order offenses have more than doubled.4 The rate of mental illness among juvenile offenders is striking: annually, at least 15,000 youth are incarcerated upon arrest because of a mental disorder.5 Some studies estimated as many as 70% of the youth in the system are affected with a mental disorder.6 But mental disorder is not the only reason for a ﬁnding of incompetence in the juvenile system. Research indicates many children are too immature both cognitively and physiologically to be tried in a criminal setting. Combine these trends with the high turnover in public defender ofﬁces and it is a public health crisis in the making. This article is intended to assist attorneys who are practicing in Florida’s 20 • FLORIDA DEFENDER

juvenile delinquency courts. Juvenile courts are often a training ground for attorneys, as they can work on a variety of ﬁles, from status offenses to misdemeanors to felonies, yet almost never be subjected to a jury trial. Inexperience with offenders, overwhelming case loads and just trying to “learn the system” causes many attorneys to overlook the subtle

signs the juvenile may be mentally incompetent to proceed in court. The Supreme Court determined defendants must have the mental competency to understand the legal process and assist in their defense in the 1960’s. No case law clarifies the same principle for juveniles. While most juvenile courts apply adult court holdings, statutes are more likely the source of clarification. Within the last 20 years the sources available regarding juvenile competency have greatly increased. While few books specifically cover the topic, a number of professional articles and studies have been published. The best studies to date are the work of the MacArthur Research Network on Adolescent Development and Juvenile Justice, which is sponsored by the John D. and Catherine T. MacArthur Foundation.7 A group of experts in the field of juvenile justice, lead by developmental psychologist Laurence Steinberg, the Director of the Juvenile Law Center Robert Schwartz and Professor Thomas Grisso, is collabo-

rating to develop a series of guides for professionals. The group began work in 1996 and over the next eight years worked in three phases: a review of the legal and psychological questions associated with juvenile justice, a nationwide scientific research study to explore youth competence and the development and publication of documents, tools and practice guides. Grisso is the author of an excellent guide for practicing attorneys, which provides a brief, yet detailed guide to the competency evaluation process in juvenile court.8 There are a number of books and articles discussing competency issues, many directed at the field of psychology, but several for legal professionals. However, there are few which discuss juvenile court specifically. No Florida state specific sources have been found which address the issue from a legal professional’s perspective. The issue of incompetence in juvenile court takes on many faces. Besides the obvious mental illnesses, attorneys must also consider whether or not their clients are mature enough to be competent in court. The procedural issues of juvenile court, such as shortened time for speedy trial and bench trials rather than jury trials, raise issues. The factor of being a counselor-at-law is more important in juvenile court where attorneys are not only dealing with their client, but the client’s parents or legal guardians, child protective services and the department of juvenile justice. Advocating for one’s client and keeping confidentialities becomes complex. Finally, cases in juvenile court are rarely “closed.” They are often “disposed” which does not mean the issue is finalized, but rather given adjudication and reviewed periodically.

BRIEF HISTORY OF MENTAL INCOMPETENCE Mental incompetence was first clarified by the court system in 1960. The U.S. Supreme Court in Dusky v. United States held in adult court, in all stages of the criminal justice process, a criminal defendant must have “sufficient present ability to consult with his lawyer with

a reasonable degree of rational understanding [and have a] rational as well as factual understanding of the proceedings against him.” 9 Later, the court added the defendant must have the capacity “to assist in preparing his defense.” 10 The court later affirmed Dusky and held the standard for competence to stand trial also applied to the waiving of rights to counsel and to plead guilty.11 From this legal standpoint, a defendant is either competent for adjudication or s/he is not. The fact that a defendant is under the influence of psychotropic medication does not bar a competency finding if the defendant is otherwise competent. Tests of a competency address the defendant’s capacity, not willingness, to participate in the adjudication. The 1980s saw an increase in teen violence that resulted in almost every state requiring more severe penalties for violent young offenders, which reduced the discretion of juvenile court judges to screen for mental health disorders. In addition, many states received decreased funding for public mental health services for children and the number of residential treatment facilities for youth declined significantly.12 In 2001, the Florida Supreme Court affirmed Dusky was the standard for competency 13 and added, “The reports of experts are ‘merely advisory to the [trial court] which itself retains the responsibility of the decision.’ Muhammad v. State, 494 So.2d 969, 973 (Fla. 1986) (quoting Brown v. State, 245 So.2d 68, 70 (Fla. 1971). And, even when the experts’ reports conflict, it is the function of the trial court to resolve such factual disputes. Fowler v. State, 255 So.2d 513, 514 (Fla. 1971). The trial court must consider all evidence relevant to competence and its decision will stand absent a showing of abuse of discretion. Carter v. State, 576 So.2d 1291, 1292 (Fla. 1989).” There has not been any U.S. Supreme Court determination as to the standard for mental competency in juvenile court. The closest the court has come to addressing the issue is Roper v. Simmons.14 In Roper, the court prohib-

ited the execution of juveniles under the age of eighteen and in so doing noted developmental differences between juveniles and adults. In extending Eighth Amendment protections to 16- and 17year-old juvenile offenders by declaring the death penalty unconstitutional, the Court held that youths’ underdeveloped sense of responsibility and subsequent lack of maturity, vulnerability to peer pressure, and less-fixed transitory personalities make them less culpable than adult offenders.15 The Court recognized this diminished culpability for juveniles and found “[t]he relevance of youth” itself to be a mitigating factor.16 At the very least this case may be used in argument against waiver to adult court for serious youthful offenders. At the very best, it will lead to a specific standard for juvenile competency. Twenty-six states have statutes addressing juvenile competency determination.17 Ten other states have case law suggesting the use of juvenile competency evaluations.18 Florida applies adult standards to juvenile court when statutes or case law fail to specifically address the juvenile issue. Commentary suggests that the appellate courts have failed to see the changes that have taken place in the juvenile courts within the last few decades, regarding types of charges and dispositions.19 Juvenile court was originally intended to be rehabilitative and non-punitive. It issues “dispositions” not “sentences.” But the reality is that juvenile courts are seeing more criminal charges and less status offenses. The dispositions ordered may place a juvenile into detention until they are 21, with the time from age 18 to 21 being served in an adult prison or jail. Juvenile court is usually open and nonconfidential. Some states use juvenile adjudications to enhance adult crimes or as part of a “three strikes” law. 20 Federal sentencing guidelines provide for sentencing enhancement based upon prior juvenile adjudications.21 Because decisions as a juvenile may affect adult life, the court system must be sure that all due process rights regarding competency be strictly protected. FLORIDA DEFENDER • 21

STATISTICS ADDRESSING JUVENILE INCOMPETENCE Recent studies have further defined the need for competency evaluations within the juvenile system. Most empirical studies look at three factors: age, mental illness and mental retardation or IQ. The first factor, age, reveals the majority of children under the age of thirteen should be found incompetent under the Dusky standard, but the majority of children over age thirteen would be competent. 22 In a 1995 sample of 136 juveniles (age 9 to 16 years) referred for pretrial competency evaluations, it was reported that the evaluators judged as competent: 72% of the 16-year-olds; 84% of the 15-yearolds; 67.7% of the of the 14-year-olds; 55.6% of 13-year-olds; 27.3% of the 12-year-olds; and 18.2% of the 11year-olds.23 A study by the MacArthur Foundation found that nearly one-third of 11- to 13-year-olds and one-fifth of 14- to 15-year-olds had deficits that courts might see as serious enough to question their ability to proceed in a trial. These patterns varied little by raceethnicity, gender, socioeconomic status, or region of the country. Interestingly, the performance of 16- to 17-year-olds did not differ from that of the young adults (aged 18 to 24).24 An evaluation tool asked respondents to recommend the best and worst choices in three hypothetical situations: responding to police interrogation when one is guilty of a crime; disclosing information during consultation with a defense attorney; and responding to a plea agreement in exchange for a guilty plea and testimony against other defendants.25 Generally, teens aged 11 to 13 proved less mature in their decision making than older youth. The youngest individuals were more likely to endorse decisions that comply with what an authority seemed to want as measured by their willingness to confess and plea bargain. The number of youth who recommended confession decreased with age, from about half of the 11- to 13-year-olds to only onefifth of the 18- to 24-year-olds. Few individuals in any age group chose to 22 • FLORIDA DEFENDER

actively deny the offense. The proporFoundation research group showed that tion that advised accepting a plea agreetwo-thirds of those under age fifteen in ment declined from nearly three-fourths juvenile detention facilities had an IQ of 11- to 13-year-olds to one-half of lower than 89 compared with one-third young adults. Once again, the study in the community sample. Therefore, revealed few statistically significant because a greater proportion of youth differences among those older than age in the juvenile justice system are of 15. The study also found no differences below-average intelligence, the risk for by age in the effects of peer pressure on incompetence to stand trial is even decision making. greater among adolescents who are in the The second factor, mental illness, juvenile justice system than it is among finds that if a child is diagnosed with adolescents in the community. For a mental illness, they example, among 11- to are likely to be found 13-year-olds with very With rising incompetent. The low IQ scores, more third factor, mental than one-half scored crime rates, retardation or IQ, also as poorly as adults who victim advocacy shows that the lower are typically found the IQ, the more likely incompetent to stand programs and a finding of mental trial. Once again, none 26 changing economic incompetence. of the findings varied However, it is rare that by race-ethnicity, conditions, children are diagnosed socioeconomic status, juvenile court with a mental illness.27 or locale. Only 28 percent of Data suggests systems have the juveniles who had that “many adjudicome to resemble a severe mental illness cated juveniles may and 46 percent who likely be undetected the adult systems. had a history of special incompetents,” and education placements Grisso has suggested 28 were judged to be competent. that there should be a legal presumpA 2001 study by McGaha and tion of incompetence to stand trial for colleagues looked at 471 juveniles adjudijuveniles younger than age 14.31 No state, cated incompetent to proceed in Florida however, has adopted such an approach. 29 from May 1997 to August 2000. They All states presume competence, with the found male and African-American youth defense bearing the burden of proving were substantially over- represented in incompetence.32 those adjudicated incompetent. Most were charged with assault and battery or SOURCES OF INFORMATION property crimes; none were charged with Florida statutes are the best starting homicide. Eighteen percent had at least point for learning more about mental one charge occurring at school. Seventy incompetence proceedings in court. The percent of the juveniles were mentally ill Florida Rules of Criminal Procedure and 70 percent were mentally retarded. 3.210 to 3.215 describe the proceeding The average IQ was 61 (mild mentally in adult court. Florida Rules of Juvenile retarded range) with psychosis evident in Procedure 8.095 describe the procedure seventeen percent of the juveniles. Virtuas it applies to juvenile court. Florida ally all the juveniles had been placed in Statutes Chapter 985.19 gives further special education classes at school, and guidance regarding incompetence in forty percent had been diagnosed with juvenile delinquency cases. brain damage. Some of the most informative articles The MacArthur Foundation Study regarding juvenile mental incompetence found juveniles with lower IQs performed can be found on the American Bar more poorly on all questions.30 The Association website in the Criminal

Justice section. Law reviews dedicated to, or publishing a special issue on juvenile law include the Journal of Juvenile Law & Policy (UC Davis) and the University of La Verne Law Review. Thomas Grisso has authored a number of books dedicated to juvenile competence, based upon research conducted with the MacArthur Foundation. His books cover a multitude of topics ranging from competence issues to culpability and are designed as guides for particular professionals within the system, such as attorneys, judges and mental health evaluators. Other proliﬁc authors include Lynda Frost and Robert Shepard. Many organizational websites are now available which provide the latest research and statistics. The Coalition for Juvenile Justice, the Southern Juvenile Defender Center, Florida’s Department of Juvenile Justice, Florida’s Children First, the National Council of Juvenile and Family Court Judges, the Juvenile Information Network, and the National Center for Juvenile Justice (part of the federal Ofﬁce of Juvenile Justice and Delinquency Prevention) are just a few.

REASON FOR CONCERN The juvenile court system is obligated to identify youths’ mental disorders for three reasons: custodial obligation, due process obligation and public safety obligation.33 When youth are in custody and their liberty is restricted, the adults holding them have a legal and moral responsibility to attend to their needs. It would not be economically feasible to require that every juvenile custody agency treat a mental disorder, but the agencies are responsible for recognizing when a mental issue exists and protecting the child from harming himself or others. In addition, they must allow the child to participate in rehabilitative services. Juveniles also have a due process right based on case law. Because of immaturity most juveniles either are not aware of or do not fully understand these rights. It is the legal responsibility of law enforcement and the court system to assure that these rights are protected.

The issue of public safety concerns both short-term and long-term placement. Judges must consider all placements and weigh the safety of the youth, his family and his community, in addition to any legal responsibility and suggested therapies. Treatment options may be limited, which further burden the legal system. The conﬂicting issues of public safety versus treatment for the child are rarely mandated.

RECOGNITION OF INCOMPETENCE BY COURT PERSONNEL The judge is typically the ﬁrst person in the court system to come into contact with a juvenile defendant. The prosecutor and a defense attorney soon follow. Any of these persons may suggest a competence evaluation. Certain charges are more likely to suggest an issue of competence, particularly from a mental health standpoint. They include sex offenses, assaults, batteries, harassment or stalking, or other crimes with a particular victim. In addition to the offense, the defendant’s demeanor in court is often suggestive of competency. Most juveniles appearing in court are subdued and frightened. Those that are aggressive, loud, obnoxious and unruly are often acting out of fear or imbalance. But the quiet ones cannot be overlooked. They are often coping with the situation at hand and hoping to escape. Parents or guardians, if they are present in court, can give insight to any problems or issues that will spur an evaluation. The caretaker should always be questioned as to any health problems, counseling services or educational issues in the child’s life. The defense attorney is the most likely to ask for an evaluation for competency. Defense attorneys often ask for an evaluation even when they do not think there is a competency issue. The evaluation is sometimes used later in an insanity defense for culpability or mens rea. This can be a dangerous strategy, because in the event that the child is found to be incompetent, rehabilitative services may take up several years of the child’s life and still result in a disposition.

Often a child is better off taking a plea to a lesser charge and receiving mental health services while in detention or via their probation ofﬁce.

STATUTES, RULES AND PROCEDURE Florida Statutes Chapter 985.19 (2008), the Florida Rules of Criminal Procedure §§3.210 to 3.215 (2008) and the Florida Rules of Juvenile Procedure §8.095 (2008) guide juvenile incompetence. Florida follows the Dusky standard for competence. The Department of Children and Families approves all court-appointed mental health evaluators and determines the course of rehabilitative treatment for children found to be incompetent but restorable. Florida is one of a few states that allow a finding of incompetence based upon age or immaturity, however no specific guidelines are given regarding what is a minimum age or what the standards are for immaturity.34 To explain the process of competency evaluation, imagine this scenario: as a criminal defense attorney you are assigned to a juvenile court case. You meet with your 14-year-old male client. After your initial meeting, you believe he may be mentally ill. What do you do? How do you figure out whether he is incompetent to proceed? As an attorney you must always remember that unless you are a licensed psychiatrist or psychologist, you cannot diagnose mental illness. In addition, “incompetent to proceed” means the child will be unable to proceed at any material stage of a criminal proceeding, which includes not only the trial of the case, but the pretrial hearings involving questions of fact on which the defendant might be expected to testify, entry of a plea, proceedings for violation of probation or violation of community control, sentencing, and hearings on issues regarding a defendant’s failure to comply with court orders or conditions or other matters in which the mental competence of the defendant is necessary for a just resolution of the issues being considered.35 The procedures for requesting a FLORIDA DEFENDER • 23

competency evaluation are explained in Fla. Stat. §985.19. The attorney should first be sure the child understands he is waiving speedy trial, until competency is restored.36 Youth generally want to “get out of juvie” and go home, so they must realize that this may delay that wish. The defense attorney, the prosecutor or the judge may file a “Motion questioning competency to proceed” which must include their reasons for their belief that the child is incompetent, a preference of doctor, an order for hearing and an order for evaluation of mental condition. Copies must then be served upon the Judge, State attorney, Department of Juvenile Justice (DJJ) attorney and the Department of Children and Families (DCF) attorney. In extremely rare instances the motion may be denied. The court would have to explain why they do not believe the child may be incompetent to proceed. However, must judges would rather err on the side of caution than risk a remand. Should the motion be denied, the attorney should immediately submit a Motion to Reconsider. And in the meantime, prepare a defense for trial based upon incompetence or a standard defense. Alternative, the attorney should discuss a plea with their client and the prosecutor. In the vast majority of cases, the motion will be granted. Prepare a Subpoena duces tecum for school and medical records. The appointed mental health professional may acquire these, but the process will be expedited if the attorney supplies them. Discuss the child’s educational, medical, and psychiatric history with the parent(s), if possible. Through these interviews it is often quickly discovered that the child has indicators or confirmation of mental retardation or mental disorder. Next choose a psychiatrist or psychologist that is approved by the court. Consider his or her expertise specifically in the field of youth evaluation and legal competency. Prepare a “Motion for child to be released to parents or DCF pending evaluation.” While undergoing evaluation, the child is to be held in the least restrictive setting that also assures public safety. For many 24 • FLORIDA DEFENDER

children, this means that they can go home and be evaluated with outpatient treatment. Help schedule the evaluation; at least two, but no more than three, experts according to statutory guidelines must see the child.37 With some children, transportation by the parents to two or three appointments may be difficult. Assisting with the arrangements, often with the help of a social worker, could alleviate the stress of the situation. After receiving the reports, the attorney may need to follow up on any unanswered questions or unclear statements. All of the evaluations should be finalized within 30 to 60 days. After receiving and reviewing all of the evaluations, schedule the hearing. Be sure that a finding of incompetence or competence is specifically stated in the evaluations. They must also include a recommendation of type of treatment. The evaluations must address the child’s capacity to appreciate the charges against him, appreciate the range and nature of penalties, understand the adversarial nature of the legal process, disclose pertinent facts to counsel, display appropriate courtroom behavior and testify relevantly. If the court at the hearing finds the child incompetent, the clerk of court submits all documentation to DCF. DCF must then place the child in an appropriate setting and within thirty days, submit a treatment plan to restore competency. A review will be held every six months, for up to two years, with one additional year allowed if the prosecutor makes a case for it. In most cases, competency is established within six months.

WORKING WITH MENTAL HEALTH PROFESSIONALS Defense attorneys must critically evaluate the ﬁndings of the evaluators. If the juvenile is found to have a “disorder” this does not necessarily mean they will be found incompetent to proceed by the court. Mental health professionals often disagree that a) certain disorders mean incompetence and b) that children may be diagnosed with certain disorders.

For instance, many disruptive behavior disorders are not considered to render the child incompetent.38 And many psychiatrists argue that schizophrenia cannot be diagnosed in a child. Studies have also shown that youth in juvenile justice facilities have very high rates of co-morbidity (meeting the criteria for more than one mental disorder), and that the majority of mentally disordered youth are white, non-Hispanic and female.39 Mental health professionals who do competency evaluations on juveniles must be trained to recognize “malingering” or pretending to be incompetent. In Virginia, after enacting juvenile competency statutes, it became well known in the juvenile detention centers that you could “beat the rap” if you malingered as incompetent.40 Juvenile attorneys should also be aware that malingering could be contrary to their clients’ interests in at least two respects. First, it will adversely affect their credibility with the judge, and second, it may result in a longer detention stay during which time the clinicians sort out whether the incompetence is genuine or feigned. Juvenile court clinicians typically focus on the broad psychological picture of the juvenile rather than answering a speciﬁc legal question. In addition, many psychological instruments that are particularly good at detecting malingering are not normed for use with juveniles.41 Complicating the task for evaluators is the lack of research on malingering in juveniles. Juvenile evaluators must assist the juvenile court in making accurate determinations regarding competency by placing a strong emphasis on distinguishing feigned from real impairment, and using future clinical research which clariﬁes the nature and characteristics of malingering in juveniles.

WORKING WITH DCF AND DJJ The defense attorney should stay in contact with the Department of Children and Families (DCF) caseworker assigned to his client. DCF is responsible for the rehabilitative services to the child.

However, DCF caseworkers, like many social workers around the country, are often overloaded and have more pressing issues. Most juvenile court ofﬁces have a DCF caseworker assigned to them. This person should be considered an ally and a valuable resource. They can often cut through red tape and get answers faster than the best paralegal. Another important source of information is the Department of Juvenile Justice (DJJ). Every juvenile courthouse has a DJJ staff member. This person is often present in court or nearby. They have quick access to records of the child’s commitment. Many DJJ ofﬁces release a daily intake sheet that quickly shows how long a child has been in commitment and why. It is often the responsibility of the defense attorney to review this data and determine if a child should be released for exceeding statutory guidelines for commitment. Having an attorney who is up-to-date on a child’s whereabouts is particularly important for those children who have been committed to DCF custody because of parental abandonment or abuse. These children often “fall through the cracks” because no one is watching out for them.

ADVOCATING FOR THE CHILD In addition to being a counselor, the attorney is primarily an advocate for the child. During the competency hearing, the child’s attorney must be very attuned to all aspects of the hearing and must make sure that the record contains speciﬁc information from the judge and evaluations. Should there be an appeal based upon an error in the competency determination or even an appeal related to a later defense of insanity, it is crucial that the competency hearing records be as accurate as possible. After at least two, and perhaps three, competency evaluations have been completed a competency hearing will be held. A DCF representative should be in the courtroom to discuss any questions that may arise from the reports, particularly questions about the evaluators themselves, as they are all DCF approved. It is unlikely that any

of the mental health evaluators will be present to testify. The applicable statutes or rules of procedure do not require testimony from experts and courts have stated that the reports are advisory for the court only. Ultimately, it is the judge who makes the competency determination. The report that the court relies upon must address six specific issues of competency: that the child can appreciate the charges or allegations, the child can appreciate the range and nature of possible penalties than may be imposed, the child can understand the adversarial nature of the legal process, the child can disclose pertinent facts to his/her attorney, the child can display appropriate courtroom behavior and the child can testify relevantly.42 Should the judge not specify that he find all six factors to be met, the attorney for the child should object to the court’s finding and ask for specifications. If the child is determined by the court to be competent, proceedings will typically continue immediately, depending upon which stage in the process the court is in. In most cases when the child is determined to be incompetent the child must be ordered for competency services in order to have his or her competency “restored.” Restoration of competence usually consists of special education, individual or group training, behavioral management and psychiatric services for several hours per week. The Florida Statutes can be very confusing. Ch. 985.19(2) states a child found incompetent to proceed and who has committed an equivalent felony must be committed to DCF for restoration. The phrase “has committed” indicates that they have been determined delinquent or found guilty in some way. Why have they been adjudicated if they are incompetent to proceed? This section also points out that children found incompetent due to age or immaturity must not be committed to DCF. Also, a child charged with a misdemeanor must not be committed to DCF for restoration. This is because a first-degree misdemeanor in Florida carries a maximum penalty of one year in jail and/or a $1,000 fine. Therefore,

the restoration process would likely take longer than the maximum penalty. The McGaha study of juveniles in Florida undergoing restoration found for 50%, restoration services were provided only in the home (65% of those with mental retardation, 52% of those with mental illness, and 37% with mental illness and mental retardation).43 Twentynine percent received some services in a secure residential facility and 22% in a residential treatment facility, although 83% of juveniles received at least some services at home. Once restoration services began, it took an average of about six months until the service provider determined that the juveniles had been restored to competence or was unrestorable. Twenty-nine percent of the juveniles were determined to be unrestorably incompetent (44% of those having mental retardation, 34% of those having both mental illness and mental retardation, and 8% of those having mental illness as the primary predicate condition). Once the service provider notiﬁed the court of its determination, juveniles typically waited one to two months before adjudication. Thus, juveniles waited an average of about six or seven months from the time they were referred for restoration until adjudication. Florida statutes require a competency review hearing to be held every six months for up to two years.44 The prosecutor may request an additional year for good cause.45 Children who are found to be incompetent to proceed, but are not deemed restorable, or cannot legally be sent for restoration, may have their delinquency petitions dismissed by the court. The court may also order proceedings under Florida Statute Chs. 393 (Developmental Disabilities) and 394 (Mental Health).

CLOSING THE CASE The continuation of a juvenile case often leads to the question of whether or not a juvenile case with competency issues is ever really “disposed” or “closed.” Some children enter the juvenile delinquency system, receive treatment and disposition and are never seen in the system again. But this is rare. It is difﬁFLORIDA DEFENDER • 25

cult to explain the rate of recidivism in juvenile court. National data reports count a child who appears on a second case as simply two cases, not a case and recidivism.46 In addition, multiple cases are often consolidated and disposed of in one action. If a child commits a grand theft auto, while on probation, and then assaults the guard in the detention center, it will be disposed of with enhanced sentencing, not as three separate offenses. If the child has been committed for restoration, a process which could take up to three years, then the attorney is likely to retain that ﬁle for three years, with a hearing at least every six months. Many attorneys in the juvenile system become personally involved with their clients and care about them and their families on many levels. It can be difﬁcult attorneys and judges to see a child struggle with mental health issues, fail repeatedly in treatment and appear many times before the court. Attorneys must be aware of their own mental issues and take care they are neither too calloused nor too personally involved in a case.

CONCLUSION Both attorneys and judges within the delinquency courts have a legal and moral duty to be aware of and recognize mental health and competency issues. Mental disorders, retardation, developmental disabilities and immaturity may lead to incompetence in understanding court proceedings and assisting counsel. While no one would expect all juvenile court personnel to become experts on mental illness or developmental processes in children, they can be expected to at least be aware of these issues and raise the question of competency when they suspect a problem. To ensure justice for all, the due process rights of children must be protected as well. It would be a hypocritical society that protects those who can protect themselves, but takes advantage of those who are most vulnerable. 

BIBLIOGRAPHY

U.S. Supreme Court Cases Drope v. Missouri, 420 U.S. 162 (1975). Dusky v. U.S., 362 U.S. 402 (1960). In re Gault, 387 U.S. 1 (1967). 26 • FLORIDA DEFENDER

Kent v. U.S., 383 U.S. 541 (1966). Roper v. Simmons, 125 S. Ct. 11831 (2005). In re Winship, 397 U.S. 358 (1970). State Cases Commonwealth v. Fisher, 213 Pa. 48 (1905). Evans v. State, 800 So.2d 182 (Fla. 2001). Ex parte Crouse, 4 Whart. 9 (1839). Federal Statutes & Rules U.S. Sentencing Guidelines Manual §4A1.2(d) (2008). State Statutes & Rules Fla. Stat. §916.106 (2008). Fla. Stat. §985.19 (2008). Fla. R. Crim. P. §§3.210-.215 (2008). Fla. R. of Juv. P. §8.095 (2008). Model Rules of Prof ’l Conduct.

BOOKS

Mental Health Screening and Assessment in Juvenile Justice (Thomas Grisso, et al. eds., 2005). John T. Whitehead and Steven P. Lab, Juvenile Justice: An Introduction, Fourth Ed. 46 (Ellen S. Boyne, ed., Anderson Publishing Co. 2004). Richard E. Hardy & John G. Cull, Psychological and Vocational Rehabilitation of the Youthful Delinquent (1974). Richard I. Frederick, et al., Examinations of Competency to Stand Trial: Foundations in Mental Health Case Law (2004). Thomas Grisso, Clinical Evaluations for Juveniles Competence to Stand Trial: A Guide for Legal Professionals (2005). Thomas Grisso, et al., Evaluating Competencies: Forensic Assessments and Instruments (2d ed. 2003).

ARTICLES & REPORTS

Annette McGaha et al., “Juveniles Adjudicated Incompetent to Proceed: A Descriptive Study of Florida’s Competency Restoration Program,” 29 Journal of the American Academy of Psychiatry & Law. 427 (2001). Christopher A. Mallett, “Juvenile Competency Standards’ Perfect Storm: Ineffective Punitive Policies; Undetected Incompetent Youth;” and “Roper v. Simmons,” 44 No. 6 Criminal Law Bulletin 1 (2008). Jeffrey A. Butts, “Can We Do Without Juvenile Justice?,” 15 Criminal Justice Magazine. (2000) available at http://www.abanet.org/crimjust/ juvjus/cjmag.html. Laurence Steinberg, “Juveniles on Trial: MacArthur Foundation Study Calls Competency into Question,” 18 Criminal Justice Magazine. (2003) available at http://www.abanet.org/ crimjust/juvjus/ cjmag.html. Lynda E. Frost and Robert E. Shepard, Jr., “Mental Health Issues in Juvenile Delinquency Proceedings,” 11 Criminal Justice Magazine. (1996) available at http://www.abanet.org/ crimjust/juvjus/ cjmag.html. MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice, Issue Brief 1: Adolescent Legal Competence in Court (year unknown), available at http://www. adjj.org/content/page.php?cat_id=2&content_ id=28.

MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice, Issue Brief 3: Less Guilty by Reason of Adolescence (year unknown), available at http://www.adjj.org/ content/page.php?cat_id=2&content_id=28. MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice, Issue Brief 4: Assessing Juvenile Psychopathy: Developmental and Legal Implications (year unknown), available at http://www.adjj.org/ content/page.php?cat_id=2&content_id=28. Marty Beyer, “Immaturity, Culpability, and Competency in Juveniles: A Study of 17 Cases,” 15 Criminal Justice Magazine. (2000) available at http://www.abanet.org/crimjust/juvjus/ cjmag. html. National Center for Juvenile Justice, Juvenile Court Statistics 2003-2004 (2007), http:// www.ojjdp. ncjrs.gov/ojstatbb/njcda. Peter Ash, “Commentary: Risk Markers for Incompetence in Juvenile Defendants,” 31 Journal of the American Academy of Psychiatry & Law. 310 (2003). Richard E. Redding & James C. Howell, “Blended Sentencing in American Juvenile Courts,” in The Changing Borders of Juvenile Justice: Transfer of Adolescents to the Criminal Court 145 (Jeffrey Fagan & Franklin E. Zimring eds., 2000). Richard E. Redding and Lynda E. Frost, “Adjudicative Competence in the Modern Juvenile Court,” 9 Virginia Journal of Social Policy and the Law. 353 (2001). Robert E. Shepard, Jr., “Rebirth of the Infancy Defense, 12 Criminal Justice Magazine. (1997) available at http://www.abanet.org/crimjust/ juvjus/cjmag.html. Robert E. Shepard, Jr., “Special Education Issues: Part II,” 18 Criminal Justice Magazine. (2003) available at http://www.abanet.org/crimjust/ juvjus/cjmag.html. Robert E. Shepard, Jr., T“he Relevance of Brain Research to Juvenile Defense,” 19 Criminal Justice. 51 (2005). Sarah Hammond, “Mental Health Needs of Juvenile Offenders (National Conferemce of State Legislatures. ed., 2007) (part of a series; see also http://www.ncsl.org/programs/cj/ juvenilejustice.htm). Stacey Gurian-Sherman, “Back to the Future: Returning Treatment to Juvenile Justice,” 15 Criminal Justice Magazine. (2000) available at http://www.abanet.org/crimjust/juvjus/ cjmag.html. Thomas Grisso, “The Competence of Adolescents as Trial Defendants,” 3 Psychology, Public Policy & Law. 3 (1997). Thomas Grisso, “Executive Summary of Double Jeopardy: Adolescent Offenders with Mental Disorders,” in 2004 Series: (ADLP) Adolescent Development and Legal Policy (Franklin E. Zimring, ed., 2004). Thomas Grisso, “Juvenile Competency to Stand Trial: Questions in an Era of Punitive Reform,” 12 Criminal Justice. (1997) available at http:// www.abanet.org/crimjust/ juvjus/cjmag.html. Vance L. Cowden & Geoffrey R. McKee, “Competency to Stand Trial in Juvenile Delinquency Proceedings: Cognitive Maturity and the Attorney-Client Relationship,” 33 University of Louisville Journal of Family Law 629 (1995).

ENDNOTES

1 Mental Health Screening and Assessment in Juvenile Justice 3 (Thomas Grisso, et al. eds., 2005). 2 See State v. Massey, 803 P. 2d 340 (Wash. Ct. App. 1990) (13-year-old convicted of aggravated first-degree murder, currently serving life sentence); State v. Green, 502 S.E.2d 819 (N.C. 1998) (13-year-old convicted of first-degree sexual assault, currently serving mandatory life sentence); Tate v. State, 864 So. 2d 44 (Fla. Dist. Ct. App. 2003) (12-year-old convicted of firstdegree murder, received a life sentence, which was shortened on appeal, but then subsequently committed a parole violation leading to his current 30-year sentence). 3 National Center for Juvenile Justice, Juvenile Court Statistics 2003-2004 (2007), http://www. ojjdp.ncjrs.gov/ojstatbb/njcda. 4 Id. 5 Mental Health Screening and Assessment in Juvenile Justice xi (Thomas Grisso, et al. eds., 2005). 6 Sarah Hammond, Mental Health Needs of Juvenile Offenders (Washington D.C.: National Conference of State Legislatures, June 2007) (part of a series; available at http://www.ncsl.org/ programs/cj/juvenilejustice.htm). 7 Thomas Grisso, Clinical Evaluations for Juveniles Competence to Stand Trial: A Guide for Legal Professionals 3 (2005). 8 Thomas Grisso, Clinical Evaluations for Juveniles Competence to Stand Trial: A Guide for Legal Professionals 3 (2005). 9 362 U.S. 402 (1960). 10 Drope v. Missouri, 420 U.S. 162, 171 (1975). 11 Gondinez v. Moran, 113 S.Ct. 2680 (1993). 12 Thomas Grisso, “Executive Summary of Double Jeopardy: Adolescent Offenders with Mental Disorders,” in 2004 Series: (ADLP) Adolescent Development and Legal Policy (Franklin E. Zimring, ed., 2004). 13 Evans v. State, 800 So.2d 182, 187 (Fla. 2001). 14 125 S. Ct. 1183 (2005). 15 Id. at 1187-88 (“Three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders … these qualities often result in impetuous and ill-considered actions and decisions … (i)n recognition of the comparative immaturity and irresponsibility of juveniles, almost every State prohibits those under 18 years of age from voting, serving on juries, or marrying without parental consent.”). 16 Id. at 1188. 17 Richard E. Redding and Lynda E. Frost, “Adjudicative Competence in the Modern Juvenile Court,” 9 Virginia Journal of Social Policy & Law. 353 (2001). 18 Id. 19 Id. at 354. MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice, Issue Briefs 1 & 2 (year unknown), available at http://www.adjj.org/content/ page. php?cat_id=2&content_id=28.

“Oh, grow up!”

Ten states have “blended sentencing” systems in the juvenile court. See Richard E. Redding & James C. Howell, Blended Sentencing in American Juvenile Courts, in The Changing Borders of Juvenile Justice: Transfer of Adolescents to the Criminal Court 145, 148-51 (Jeffrey Fagan & Franklin E. Zimring eds., 2000). 21 U.S. Sentencing Guidelines Manual §4A1.2(d) (2008). 22 Richard E. Redding and Lynda E. Frost, “Adjudicative Competence in the Modern Juvenile Court,” 9 Virginia Journal of Social Policy & Law. 353, 375 (2001). 23 Vance L. Cowden & Geoffrey R. McKee, “Competency to Stand Trial in Juvenile Delinquency Proceedings: Cognitive Maturity and the Attorney-Client Relationship,” 33 University of Louisville Journal of Family Law 629, 652-53 (1995). 24 MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice, Issue Brief 1: Adolescent Legal Competence in Court, 1-2 (year unknown), available at http://www.adjj.org/content/page.php?cat_ id=2&content_id=28. 25 Id. at 2-3. 26 Richard E. Redding and Lynda E. Frost, “Adjudicative Competence in the Modern 20

Juvenile Court,” 9 Virginia Journal of Social Policy & Law 353, 375 (2001). 27 Richard E. Redding and Lynda E. Frost, “Adjudicative Competence in the Modern Juvenile Court,” 9 Virginia Journal of Social Policy & Law 353, 375 (2001). 28 Vance L. Cowden & Geoffrey R. McKee, “Competency to Stand Trial in Juvenile Delinquency Proceedings: Cognitive Maturity and the Attorney-Client Relationship,” 33 University of Louisville Journal of Family Law 629, 653 (1995). 29 Annette McGaha et al., “Juveniles Adjudicated Incompetent to Proceed: A Descriptive Study of Florida’s Competency Restoration Program,” 29 Journal of the American Academy of Psychiatry & Law 427, 429-31 (2001). 30 MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice, Issue Brief 1: Adolescent Legal Competence in Court, 3 (year unknown), available at http://www. adjj.org/content/page.php?cat_id=2&content_ id=28. 31 Richard E. Redding and Lynda E. Frost, “Adjudicative Competence in the Modern Juvenile Court,” 9 Virginia Journal of Social Policy

SEE PAGE 35

Laura Klossner is currently in the Criminal Law LLM program at SUNY Buffalo Law School. A graduate of FAMU College of Law, she intends to return to Orlando this summer and practice criminal defense. (And join FACDL.) FLORIDA DEFENDER • 27

ELEVENTH CIRCUIT CASE LAW UPDATE

Ken Swartz

f nothing else, you should at least read through these summaries. In U.S. v. Irey the Court upheld a substantial variance for a particularly despicable offense, giving full deference to the sentencing judge. But in U.S. v. Shaw, the Court upheld a substantial upward variance from the guidelines for criminal history. The Court in U.S. v. Knight, reduced the defendant’s sentenced for failure to give credit for state time served for an enhancement factor. Also worth noting is the en banc decision in U.S. v. Svete endorsing the Pattern Jury Instruction in a fraud scheme. While I normally do not cover district court opinions here, U.S. v. Shaygan, 2009 WL 980289 (SDFL April 9, 2009) is a case out of the Southern District of Florida that is worth mentioning. The defendant, an M.D., was charged with 141 counts of distributing controlled substances (pills) to patients, which were not intended for legitimate medical purposes. After a four-week trial he was acquitted on all counts. During the course of the trial, the defense learned that during the pretrial preparation two of the government’s witnesses had tape recorded one of the defense attorneys during a witness interview. This was done as part of a government “investigation.” It turns out that the prosecutors had decided to launch a 28 • FLORIDA DEFENDER

witness tampering investigation against the defense team without the authority of the United States Attorney’s office. Following the trial, a hearing was held on the misconduct and a motion for sanctions pursuant to the Hyde Amendment. In a 50-page order, Judge Gold awarded attorneys fees and costs to the defendant in the amount of $606,795. He also entered sanctions and public reprimand against the prosecution team of Assistant United States Attorneys Karen Gilbert, Sean Cronin and Andrea Hoffman for “filing a superseding indictment, instigating and pursuing the collateral witness tampering investigation, engaging in discovery violations, and creating a potential conflict-ofinterest under McLean for the defense team, plac[ing] Dr. Shaygan’s liberty at unnecessary risk and violated their moral obligation to the accused.” Prior to the decision, the United States Attorney had announced that an investigation by the D.O.J.’s Office of Professional Responsibility had begun and the district court reserved further sanctions pending the results of the D.O.J. investigation. This opinion is a must read for criminal defense attorneys as well as prosecutors (who I am sure have been reading it.)

The defendants were German businessmen who purchased a Florida corporation owned by another German citizen, living in Florida at the time of the events that gave rise to this prosecution. One of the defendants borrowed part of the purchase price from German investors and he ﬁnanced the balance by giving the seller a mortgage on his property together with a note. Eventually, the defendants demanded that the seller/victim rescind the purchase and cancel the purchase mortgage, claiming the defendants’ financial backers were demanding payment. To persuade the seller to comply, they described their investors as dangerous underworld ﬁgures who would do anything to recover their money and warned the seller he better comply or his family would be at risk. The defendants’ appeal involved his challenge to the district court’s refusal to delete from the jury instruction on the Hobbs Act elements the words “fear of economic loss.” The appellate court rejected this argument as it found there was evidence that the victim feared the possibility of suffering economic loss by the defendants’ actions.

U.S. v. Bornscheuer, 2009 WL 814587 (11th Cir. March 31, 2009)

£Imposition of maximum sentence of 10 years was not an unreasonable upward variance from 30-37 months in order to protect the public from further criminal activity by the defendant.

£Evidence supports a jury instruction that states “fear” involved of fear of economic loss in this Hobbs Act prosecution.

The defendants were charged with extortion in violation of the Hobbs Act.

U.S. v. Shaw, 2009 WL 510323 (11th Cir. March 3, 2009)

The defendant appealed for his statutory maximum sentence of 120 months for possession of a ﬁrearm by a felon,

claiming it was an unreasonable upward variance from the sentencing guidelines range of 30 to 37 months. Predictably, the outcome was not good for Mr. Shaw, as three sentences into the opinion Judge Carnes described his rap sheet as “long enough to require extra postage.” The Court applied a two-step process for reviewing this upward departure. First, determining whether the district court committed a significant procedural error (e.g. improperly calculating the guidelines range, treating the guidelines as mandatory, failing to consider §3553(a) factors, selecting a sentence based on clearly erroneous facts or failing to adequately explain the chosen sentence, including any deviation from the guidelines.) If the ﬁrst step is met, the second step is to review the sentence’s “substantive reasonableness under the totality of the circumstances” including “the extent of any variance from the Guidelines range.” Quoting from Gall v. United States 128 S. Cr 586, 597 (2007). After discussing Shaw’s lengthy prior criminal history and his continued recidivism, the appellate court upheld the sentence as reasonable given the district court’s wide latitude, reasoning that the defendant had many chances and the public needed to be protected from Shaw’s further crimes. U.S. v. Brannan, 2009 WL 736005 (11th Cir. March 23, 2009) £The defendant waived his challenge to a faulty Information by agreeing to proceed to trial.

Evidently indecent exposure was a big problem in the Wheeler National Wildlife Refuge in Northern Alabama as it led to Mr. Brannan’s arrest by Federal Wildlife ofﬁcers who conducted a “covert operation” posing a member of the public walking trails and sitting on park benches. On appeal, the defendant claimed the charging information was defective because it left out an essential element of the crime by omitting the requirement that the jury ﬁnd the “sexual act was committed without consent of the victim,” an element of the offense

under applicable Alabama law. The appellate court rejected the claim, on the Invited Error Doctrine, finding the defendant encouraged the district court to proceed to trial, knowing the count was incorrect and did not ask for a dismissal at that time.

U.S. v. Lopez, 2009 WL 763128 (11th Cir. March 25, 2009)

U.S. v. Carmichael, 2009 WL 539953 (11th Cir. March 5, 2009)

This was a remand from the U.S. Supreme Court which directed the Court of Appeals to decide whether the deadline for filing a notice of appeal in a criminal case under Rule 4(b) is jurisdictional. The Court found it was not jurisdictional because the time limits are not based on any federal statute. The defendant then argued that the government forfeited its objection to the untimely appeal (filed days after the expiration of the period). The Court found that the government did not have to raise an objection with the district court and could object with the filing of its brief.

£In a Sixth Amendment challenge to the racial makeup of the venire, the defendant was unable to show a lack of fair and reasonable representation of the venire.

The defendant was indicted for conspiracy to distribute over 3,000 kilograms of marijuana and with conspiracy to launder the proceeds. In this appeal the defendant challenged the venire summoned to hear his case under the Jury Selection and Service Act of 1968 (JSSA) 28 U.S.C. §1861 et seq. and the Sixth Amendment. The issue arose from a previous problem in the selection process in which jurors who chose to defer jury service are placed back in the summons pool, making the total pool of summoned jurors disproportionately white. (Jurors who deferred are two to one white.) A new system was devised to erase the disproportion, but apparently a new jury administrator accidentally violated the new system, creating a disproportion for the pool from which the defendant’s trial was drawn. The court found no violation of the JSSA. As for the Sixth Amendment claim, a prima facie violation of the fair cross section requirement requires the defendant to show: (1) the group alleged to be excluded is a distinct group in the community, (2) the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community, and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. Because the defendant could not show a lack of fair and reasonable representation, his claim was denied.

£Filing a notice of appeal in a criminal case is jurisdictional but the government does not forfeit its objection by raising the issue with the ﬁling of its brief.

U.S. v. Williams, 2009 W.L. 817498 (11th Cir. March 31, 2009) £In a limited remand for resentencing, the sentencing court is restricted to only those issues specifically that form the basis of the remand with some limited exceptions that are not applicable here.

The defendant appealed a life sentence for possession of crack cocaine, imposed at resentencing following a remand by the court of appeals. In Williams I the court had remanded to the district court directing the court to give reasons why a life sentence on this 26-year-old defendant was appropriate. In this appeal, the defendant argued that the district court interpreted the Court of Appeal’s mandate too narrowly and failed to consider 3553(a) factors in order to impose a lesser sentence. In other words the district court treated the guidelines as mandatory. The Court rejected the challenge ﬁnding that this was a limited remand restricting the district court from revisiting issues already afﬁrmed. As the district court complied by giving reasons which included failure to take FLORIDA DEFENDER • 29

responsibility for his actions, his lengthy criminal history, the need to promote respect for the law, deterrence and the need to protect the public. £The exception to the restriction on a limited remand.

The only exception to a limited remand is for an intervening change in controlling law. The defendant argued that the Florida Supreme Court had held recently that BOLEO conviction is not a forcible felony for the purpose of sentencing enhancement under Florida’s violent career criminal statute and for that reason the district court erred in classifying him as a career offender. The court already rejected this argument in United States v. Johnson, 528 F.3d 1318 (11th Cir. 2008), cert. granted, __ S. Ct.___, 2009 WL 425080 (Feb. 23, 2009), and although it is pending review in the U.S. Supreme court it is still controlling law. U.S. v. Willis, 2009 WL 514313 (11th Cir. March 3, 2009) £No clear error in the sentencing court’s calculation of intended loss in a FEMA fraud.

Bernetta Willis was convicted of theft of government property and for submitting 17 fraudulent applications for FEMA aid following Hurricane Katrina. The defendant challenged the PSI’s calculation that the intended loss calculation was $471,600 based on the defendant’s 20 fraudulent claims and the maximum aid of $26,200 available for each claim. The defendant argued that the sentencing guidelines should be calculated based on the actual loss of $79,607.45. The Court affirmed the intended loss calculation ﬁnding that the district court was presented with sufﬁcient circumstantial evidence of the defendant’s intent to obtain the maximum possible amount through the fraudulent claims. While the district court may not speculate concerning the existence of a fact that might lead to more severe sentence, the district court did not speculate here in arriving at its decision. 30 • FLORIDA DEFENDER

£The sentence was reasonable and no basis found for downward variance.

The defendant also challenged her sentence on the grounds that the court should have given her a variance. Specifically the court should have considered here diminished capacity which prevented her from accepting guidance from her lawyers. The court rejected the challenge as the forensic evaluation showed defendant “was likely malingering and that she was possibly motivated by external incentives.” U.S. v. Irey, 2009 WL 806860 (11th Cir. March 31, 2008) £Downward variance upheld for a defendant convicted of making sexually explicit ﬁlms with minors where the sentencing factors supported the sentence as reasonable.

Mr. Irey was convicted to using minors outside the United States for the purpose of making child pornography. The defendant made repeated trips to Cambodia on sex tours and videotaped himself having sex with minors, some of which depicted graphic sex acts and torture. The appellate court described the crime as “horriﬁc.” Nevertheless it pointed out that defendant presented evidence through a psychologist who submitted a psychosexual report, that the defendant was treatable, was a medium to medium low risk of recidivism, and could be successful in supervised release after treatment. The defendant’s family testified he was a wonderful husband father and person and that he embraced treatment, he had been acting as a peer mentor to others in narcotics and alcoholic anonymous, and that the family would remain supportive. The district court also noted his age of 50. His guideline range was the statutory maximum of 360 months with a minimum sentence of 180 months, the statutory minimum. Though he was sentenced to 210 months and given a lifetime of supervised release, the government appealed. The Court reafﬁrmed that a party challenging the sentence has

the burden of establishing the sentence is unreasonable in light of both the record and the factors of §3553(a) factors. It reviewed the procedure a sentencing court must follow: First, consult the sentencing guidelines and calculate the correct guidelines sentence; Second, consider the factors listed in 3553(a). The Court found no procedural error in determining the applicable guidelines sentence; it rejected the government’s argument that the sentence was too lenient. The Court said that even though it may disagree with a sentence, it would not second guess the district court decision where as here the sentencing judge took the sentence seriously, proceeded thoughtfully and the sentence was reasoned. The court did consider the factors of §3553(a). The Court of Appeals did not second guess the district court as it respects the district court as a sentencer and accepted the sentence as it “was within the outside borders for a reasonable sentence for this kind of case.” U.S. v. Knight, 2009 WL 764999 (11th Cir. March 31, 2009) £Speedy trial delay warranted a dismissal without prejudice and not with prejudice.

After the car Mr. Knight was riding in as a passenger was pulled over, a police officer saw him place a gun on the floor boards. He was arrested on state charges. While still state custody he was indicted by a federal grand jury on September 29, 2005, for possession of the firearm by a convicted felon. A federal detainer was lodged against him to hold him in the event he made bond. He was visited by ATF officers in the county jail who advised him of the pending investigation. Knight made some incriminating statements and did not ask for an attorney. He was transferred to federal custody where he pled not guilty. The district court granted a speedy trial claim but dismissed without prejudice. As to the appeal from the district court’s order dismissing “without prejudice” the Court applied the factors and found the district court did not abuse its discretions.

£The seizure of evidence was found reasonable based on initial stop of the driver which led to the resulting seizure from the defendant.

The Court upheld the denial of the motion to suppress evidence seized in the stop. It found the initial stop of the car was valid because the driver was seen without a seat belt on. The officer had probable cause to stop the car, and the officer was entitled to ask the driver to step out the car. He had reasonable suspicion to pat down the driver and the officer smelled marijuana and alcohol. £The denial of the motion to suppress statements.

The Court found that the prior invocation of rights in the state case did not apply to the federal case. Statements made to the ATF were admissible. £The district court committed clear error for failing to reduce Knight’s sentence for time spent in state custody for obstruction of justice.

Where a defendant has a prior offense that is relevant to the instant offense and resulted in an increase in the offense level of the instant offense, the sentencing guidelines provide that the sentence include a credit for a period served in state custody for the obstruction case. The government conceded the error because the conduct that was used to enhance his federal sentence was related to the state conviction and the BOP would not give credit for that time. U.S. v. Siegelman, 2009 WL 564659 (March 6, 2009) £Reversal of two bribery convictions.

The Court reversed two bribery related convictions of the former governor of Alabama. The Court found that he should not have been convicted of honest services mail fraud based on Richard Scrushy’s self dealing once Scrushy became a member of the Board of Health Review. Siegelman had a lack of involvement in Scrushy’s self dealing and there was no agreement between the two at this point. £Denial of defense jury instruction upheld.

Siegelman wanted a jury instruction

for the bribery charge stating that a quid pro quo agreement must be express. The Court noted that the case law merely requires an “explicit” agreement which can be achieved through winks and nods, if not express words. Furthermore, an agreement can be implied from words and actions £Denial of statute of limitations challenge upheld.

The Court rejected Siegelman’s statute of limitations challenge, noting that he failed to raise it until the ﬁling of the motion for judgment of acquittal under Fed. R. Crim. P. 29(c), post verdict. If a defendant fails to raise the statute of limitations defense at trial, the defense is waived. £Sentencing upward departure upheld.

The Court affirmed an upward sentencing departure based on the fact that the Governor’s conduct had seriously undermined public conﬁdence in the executive branch of the Alabama government. U.S. v. Ambert, 2009 WL 564977 (March 6, 2009) £No Ex Post Facto violation where statute criminalizes failure to register and not prior travel.

The defendant was indicted for failing to register as required by the Sex Offender Registration and Notiﬁcation Act. (SORNA) The Court rejected the defendant’s argument that his travel in interstate commerce occurred before the Attorney General determined that the SORNA’s registration requirements applied on February 28, 2007 to previously convicted sex offenders and therefore did not subject him to criminal liability for failing to register. The Court found the defendant traveled after February 28 and his violation was a failure to register which in his case occurred after February 28.

because the right of a person convicted of sex offenses to refuse registration was not deeply rooted in the nation’s history and applying the rational basis scrutiny, the registration requirement was reasonably related to the goal of protecting the public from recidivist sex offenders. The Court also found that the registration requirement falls within the jurisdiction of the Commerce Clause. The Court found that when a sex offender travels from one state to another he is an instrumentality of interstate commerce. U.S. v. Vazquez, 558 F.3d 1224 (11th Cir. 2009) £Sentencing court’s disagreement with application of 4B1.1 career offender is not a factor the court may consider in determining a sentence.

This was an appeal from a 180month sentence following a remand. In Vazquez I the appellate court remanded because the 110-month was procedurally unreasonable as it was based on an impermissible factor, which is that the sentencing court disagreed with the application of the career offender provision 4B1.1. In this appeal the defendant argued that the sentencing court should have considered its disagreement with the career offender enhancement the second time. The defendant reasoned that U.S. v. Kimbrough, which came out after Vazquez I, now made it permissible for the district court to consider its disagreement with career offender. The court disagreed. Citing U.S. v. Williams which held the district court could not consider its views on §4B1.1 as a sentencing factor. It found that that Kimbrough was not inconsistent with Williams as §4B1.1 was a result of “direct Congressional expression.”

£The Court also denied other Constitutional challenges.

U.S. v. Guzman, 558 F.3d 1262 (11th Cir. 2009)

The Court rejected a substantive due process challenge to the SORNA statute ﬁnding that strict scrutiny did not apply

£Special condition of supervised release that the defendant report after deportation was upheld. FLORIDA DEFENDER • 31

Guzman was sentenced with a special condition of supervised release that if he is deported he shall contact probation with in 72 hours of his arrival to provide his current address in Mexico. The court found this condition was reasonably related to the requirements of 18 U.S.C. §3583(d) and did not involve a deprivation of liberty. U.S. v. Harrison, 558 F.3d 1280 (11th Cir. 2009) £Prior Florida conviction for ﬂeeing found not a predicate violent felony for a sentencing enhancement under 924(e).

The issue was whether the district court erred in finding a conviction under Florida Statutes 316.1935(2), which is the willful fleeing statute, is a violent felony for the purposes of the Armed Career Criminal Act 18 U.S.C., §924(e). In a lengthy analysis of recent Supreme Court opinions Begay v. U.S. 128 S. Ct 1581 (2008) and Chambers v. U.S. 129 S. Ct 687 (2009) as well as the Florida statute, the court concluded that the conviction cannot support the §924(e) enhancement. U.S. v. Louis, 2009 WL 485239 (11th Cir. February 27, 2009) £A two level increase for violating a position of public trust is not applicable to federally licensed firearms dealer who sells to a convicted felon.

The main issue in this appeal is whether a federally licensed firearms dealer who sells ﬁrearms to a convicted felon is subject to a sentencing guidelines enhancement for abusing position of public trust. After an in depth review of public trust enhancement cases in the Eleventh Circuit, the Court concluded that a licensed ﬁrearms dealer is not a position of public trust and reversed the sentence enhancement. U.S. v. Svete, 556 F.3d 1157 (11th Cir. 2009) £The En banc Court reversed the panel decision that overturned a 32 • FLORIDA DEFENDER

fraud conviction for the failure to give the defense requested jury instruction.

The panel reversed the conviction because the pattern jury instructions failed to instruct concerning whether it was reasonable for prudent investors to rely on defendants’ statements. The panel held that the inaccuracy in the jury instruction impaired the defendants’ ability to argue that, in light of the available documentation, it was unreasonable for any prudent investor to have relied on the defendants’ contrary statements, or not to seek independent advice. Svete, 521 F.3d 1302. The en banc Court reversed the panel, finding that the mail fraud statute does not require proof that a scheme to defraud would deceive persons of ordinary intelligence. A jury must only find that the scheme would have deceived a prudent and ordinary investor, and not simply one who may be gullible. U.S. v. Jiminez, 009 WL 921437 (11th Cir. April 7, 2009) £Evidence sufficient to support conviction of defendant residing in a marijuana grow house.

The defendant Jimenez and his brother were convicted of charges concerning the manufacture and distribution of at least 100 marijuana plants found in a rural home they occupied. The court found the evidence sufﬁcient to support a conviction of Jiminez, who lived in the house. The evidence of guilt could also include the defendant’s own testimony which the jury could reject and consider as substantive evidence of the defendant’s guilt. £Statements by codefendant incriminating the defendant were admissible.

The defendant challenged an agent’s statement that the co-defendant said that Jimenez was a participant in the grow-house operation. On appeal the defendant challenged the admission on the Sixth Amendment. At trial the defendant did not object to the testimony based on the Confrontation Clause, but instead relied on hearsay grounds. The court noted that a hearsay objection does not preserve a Confrontation Clause objection. The appellate court found no Confrontation Clause violation where the defendant failed to show violation of substantial rights for a violation of the Confrontation Clause. 

Ken Swartz is a partner with Swartz & Lenamon, a criminal defense firm in Miami specializing in federal and state court litigation found at www.swartzlenamon.com. A Board Certified Criminal Trial Lawyer and past president of the Miami FACDL Chapter, he serves as a chapter representative on the Statewide Board of Directors. He has tried over 125 federal jury trials including white-collar fraud, Medicare fraud, money laundering and drug trafficking offenses. He can be reached at 100 N. Biscayne Boulevard, Suite 3070, Miami, Florida 33132, 305 / 579-9090 or at Ken@Swartzlenamon.com.

ETHICS Made Fun!

This ethics seminar is an interactive exchange between FACDL Past President Denis deVlaming and the combined ofﬁces of the Public Defender and State Attorney covering ethics scenarios that come up in the practice of criminal law. VIDEO PRESENTATION AVAILABLE ON DVD OR AS STREAMING VIDEO AT WWW.FACDL.ORG

To order DVD or streaming video, complete this form and mail to: FACDL P. O. Box 1528 Tallahassee, FL 32302

The ethics component of the Continuing Legal Education requirement has been expanded requiring all members of The Florida Bar to accrue ﬁve approved hours in legal ethics, professionalism or substance abuse [RRTFB 6-10.3(b)]. If you’re looking for a couple of extra CLE hours, this is your EASY SOLUTION! Inexpensive: Only $99 (includes shipping and handling) Convenient: Watch on your own schedule Accredited: Approved by The Florida Bar for 3.5 CLE hours in Ethics Instructive: Produced by The Florida Association of Criminal Defense Lawyers

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JUVENILE • from page 27 & Law 353, 376 (2001). Thomas Grisso, “The Competence of Adolescents as Trial Defendants,” 3 Psychology, Public Policy & Law 3, 23 (1997). Thomas Grisso, Clinical Evaluations for Juveniles Competence to Stand Trial: A Guide for Legal Professionals 33 (2005). 32 Richard E. Redding and Lynda E. Frost, “Adjudicative Competence in the Modern Juvenile Court,” 9 Virginia Journal of Social Policy & Law 353, 376 (2001). 33 Mental Health Screening and Assessment in Juvenile Justice 8 (Thomas Grisso, et al. eds., 2005). 34 Fla. Stat. §985.19(2) (2008). 35 Fla. Stat. §916.106(11) (2008). 36 Fla. Stat. §985.19(1) (2008). 37 Fla. Stat. §985.19(1)(b) (2008). 38 Mental Health Screening and Assessment in Juvenile Justice 6 (Thomas Grisso, et al. eds., 2005).

39 Mental Health Screening and Assessment in Juvenile Justice 7 (Thomas Grisso, et al. eds., 2005). 40 Richard E. Redding and Lynda E. Frost, “Adjudicative Competence in the Modern Juvenile Court, 9 Virginia Journal of Social Policy & Law 353, 395 (2001). 41 Richard E. Redding and Lynda E. Frost, “Adjudicative Competence in the Modern Juvenile Court,” 9 Virginia Journal of Social Policy & Law 353, 395 (2001). 42 Fla. Stat. §985.19(1)(f ) (2008). 43 Annette McGaha et al., “Juveniles Adjudicated Incompetent to Proceed: A Descriptive Study of Florida’s Competency Restoration Program,” 29 Journal of the American Academy of Psychiatry & Law 427, 432-33 (2001). 44 Fla. Stat. §985.19(5)(a) (2008). 45 Fla. Stat. §985.19(5)(b) (2008). 46 National Center for Juvenile Justice, Juvenile Court Statistics 2003-2004 1 (2007).

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Is the Prescription Junkie Really

“TRAFFICKING” ?

Denis M. deVlaming

and

Kym Rivellini

ow many times have we seen it? A client calls us from the county jail or appears in our office and tells us that he or she has been charged with trafficking in controlled drugs. Not cocaine, heroin or marijuana, but prescription drugs. They go on to say that they have been addicted for years. It began when they had an accident or illness which caused them to be prescribed the medication. Usually, it’s Oxycotin, Oxycodone or some other morphine-based substance. The pain or discomfort became so great that they increased the dosage. Usually, their health care provider complied. But when it got so severe, either the prescription was not increased or, in some cases, it was withheld altogether. That’s when the problems began. In 1979, the Florida legislature passed the first trafficking-in-controlledsubstances law. Since then, the number of controlled substances that could result in trafficking convictions and sentences has

increased as have the penalties. When the original law was passed (and in each successive amendment) the legislature believed that by merely possessing a certain quantity of controlled substance it presumed that the individual is “trafficking” by law and definition. Sadly, in the scenarios noted above, they were wrong. It is easy to understand when an individual is charged with trafficking in controlled substances when they dispense, sell or deliver large quantities of those drugs. That is trafficking. The mere obtaining of personal use quantities, however, is not by definition or logic trafficking. In fact, it can be argued that in cases where people illegally take possession (for personal use) of a prescription amount of controlled substances that Florida Statute 893.135 (trafficking) is unconstitutional as applied. Rather than discuss the contents of such motion, it is perhaps better to quote the motion verbatim. A copy of that motion is on the following page. The client’s name has been removed for privacy reasons.



If your motion fails, then trial on the merits may be your only option. Getting in your client’s dependence and addiction to these drugs (which began with legal prescriptions) is imperative. If your client has made a statement to police that the state will try to introduce into evidence at trial, you may want to argue the line of cases which hold that an individual’s use of intoxicants at the time that a statement is made is admissible to determine the voluntariness of his statement.1 Even his past addiction may be relevant for that purpose.2 If a jury believes that the client was initially given the same substances lawfully by a health care provider, which he is now charged with trafﬁcking in, and that his dependence caused him to commit the latest offense, your chances of obtaining a conviction for the lesser included offense of simple possession may be realized. If trial is unavoidable, then you will also want to prepare a jur y instruction that the issue of trafficking is no more than a “rebuttable presumption.” By that, you will be opening the door to SEE PAGE 38

A Board Certiﬁed criminal defense attorney in Clearwater, Denis M. de Vlaming has practiced criminal law exclusively since 1972. He has been on FACDL’s Board of Directors since its inception in 1988 and is a Charter Member of the organization. He is a FACDL past president. Kym Rivellini has practiced law with Denis deVlaming since 1999. She graduated from the University of Florida and from Stetson University College of Law where she was a member of the Law Review. She began her legal career as an Assistant State Attorney in the Sixth Judicial Circuit from 1995-1999. 36 • FLORIDA DEFENDER

IN THE CIRCUIT COURT FOR __________ COUNTY, FLORIDA STATE OF FLORIDA

__________________________

CRIMINAL DIVISION

MOTION TO DECLARE SECTION 893.135 UNCONSTITUTIONAL AS APPLIED Defendant, by and through his undersigned counsel, respectfully moves this Court to declare Section 893.135 Unconstitutional As Applied to the above styled case on the following grounds: 1. Defendant, (Client), is charged with trafficking in Oxycodone and Hydromorphone. 2. (Client) has previously, and continues to suffer from numerous medicalinfirmities (including but not limited to back-related injuries, injuries resulting from motorcycle accidents, cancer, hepatitis, liver failure, etc). 3. (Client) has previously been legitimately prescribed these same controlled substances by licensed medical doctors. 4. At one point, (Client) was lawfully receiving approximately 500 prescription pills per month. 5. Over time, according to the medical testimony, (Client) has developed a tolerance of said substances. By his own admission, he is addicted to those medications. 6. In the above styled cases, (Client) is charged with “trafficking in controlled substances” under the “possession” theory. 7. The controlled substances (Client) is charged with “trafficking” are not in and of themselves illicit in nature (as compared with cocaine or heroin which is illegal under any circumstance). 8. The amounts for which (Client) is charged do not exceed, and in fact are less than, the amounts for which he was once lawfully prescribed. 9. There is no admissible or credible evidence which suggests that (Client) “trafficked” in these controlled substances in any other manner other than the theory for which he has been charged. 10. In fact, the evidence suggests that (Client) was obtaining the controlled substances for his personal use and was ingesting the obtained medication. His dependence was so great that sharing or selling the pills was not an option. 11. “Trafficking” is not defined under Section 893.135. 12. “Trafficking is otherwise defined as: Trading or dealing in certain goods and commonly used in connection with illegal narcotic sales.” Black’s Law Dictionary 1340 (rev. 5th ed. 1979) as pointed out in Jordan v. State, 441 So. 2d 657 (Fla. 3d DCA 1983). 13. The Jordan case further points out that the defendant in that case was charged with “trafficking [in drugs] (which, by definition, connotes dispensing).” Id. (emphasis added). That case supports the argument that in the absence of a statutory definition, courts can resort to definitions of the same term found in case law. See LaMorte v. State, 984 So.2d 548 (Fla. 2nd DCA 2008). 14. To charge and punish (Client) with “trafficking” when he is merely “possessing” said substances, and when there is already a statute in place to deal with such behavior, is contrary to law and logic. 15. Under other possible scenarios it might make sense that being in possession of certain quantities of controlled substances lends to the action of trafficking (other facts obtained through confidential informants, such quantities that could never be ingested for mere personal use (ex. fifty kilograms of cocaine), the frequency of coming into possession of the substances, being linked to others who are known to sell the substances, etc.). 16. However, under this scenario there is no such factual basis. There are no additional facts that would lead this Court to believe that by possessing the substances, that (Client) intended on doing anything other than ingesting it (such as manufacturing, delivering, distributing, selling, etc.). 17. A statute is unconstitutional as overbroad when it criminalizes conduct which is otherwise innocent conduct. Gonzalez v. State, 948 So. 2d 892 (Fla. 5th DCA 2007). 18. Taken to its (il)logical conclusion, one could theoretically be charged with Trafficking in a prescription drug if one were to go to the pharmacy and pick up an order for an infirmed relative (picking up a pain reliever for a husband with a broken leg who cannot drive to the store). 19. If an officer were to effectuate a stop on the vehicle for an infraction, see the prescription bag on the center console, see that the prescription in not in their name, see that the quantity exceeds the trafficking amount and is of such a nature that it is a controlled substance, that unsuspecting spouse could be charged with trafficking for the mere possession. 20. Therefore, the statute is overbroad and unconstitutional. WHEREFORE, defendant respectfully requests that this Court enter an order in accordance with the request above.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was furnished by _______________ to Office of State Attorney,

______________________________________________________, this _____ day of _____________________, 2008. ____________________________________ Attorney for Defendant FLORIDA DEFENDER • 37

TRAFFICKING • from page 36

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argue in your closing that although there may be a presumption under the law that an individual is trafficking based upon the possession of a certain amount of pills, that it is rebuttable in cases where the defendant is an addict with no intentions whatsoever to sell or dispense his medication. On October 1, 2008 a bill went into law which reorganized the provisions of Florida Statutes 831.03 and 831.05 relating to counterfeiting. It provides that proof of a person possessing more than 25 pieces of property that bear a counterfeit mark gives rise to an inference that such property is being possessed with the intent to offer it for sale or distribution (emphasis provided). This is precisely what was intended by the legislature in making the crime of trafficking in controlled substances by possession “trafficking.” In fact, when the original trafficking legislation was debated, the minutes of that debate were clear that the lawmakers were passing the law in order to go after “the thoroughbreds and not the mules.” Unfortunately, when it comes to the addict, they are imprisoning nothing but mules. Florida Statute 812.019 deals with the crime of dealing or trafficking in stolen property. That statute defines trafficking as “to sell, transfer, distribute, dispense, or otherwise dispose of property.” It further provides “to buy, receive, possess, obtain control of, or use property with intent to sell, transfer, distribute, dispense, or otherwise dispose of such property.” Simply taking possession of stolen property is not enough. In fact, one appeal case reversed a conviction where the only evidence presented at trial was that the defendant purchased a stolen automobile for his own personal use. Since there was no evidence that he intended to sell, transfer, or otherwise dispose of it, the crime of trafficking in stolen property did not occur.3 In

discussing the trafficking in stolen goods statute, another appellate court held that the dealing in stolen property statute was not designed to punish persons who steal for personal use. Rather, it was designed to dismantle the criminal network of thieves and fences who knowingly redistribute stolen property.4 This DCA opinion quoted the Florida Supreme Court.5 In those opinions, it is clear what trafficking is and what trafficking is not. It involves some intention to have the property in question put into commerce in some form or fashion. It was not designed for people who take possession for personal use. The court needs to be reminded what evil the legislature intended to curb by enacting the tough penalties that the drug trafficking laws provide. It is the distribution by sale or delivery that is sought to be prohibited. It is not the hopeless addict trying desperately to obtain pharmaceutical drugs to keep from going into painful withdraws, vomiting, diarrhea and DT (Delirium Tremens). These cases are difficult. The penalties involved are Draconian. Anything we can do to try and minimize the punishment for those clients who are in need of treatment and not prison should be done. The pharmaceutical companies are already under a great deal of pressure to do something to stop the addictive nature of these drugs that they are selling. Sales and usage are epidemic. Perhaps the legislature will realize that more and more prosecutions are being brought against not traffickers but users and that the law will be amended to address this terrible inequity.  Green v. State, 688 So.2d 301 (Fla. 1996); Hammett v. State, 908 So.2d 595 (Fla. 2nd DCA 2005); Burns v. State, 584 So.2d 1073 (Fla. 4th DCA 1991) 2 McIntosh v. State, 532 So.2d 1129 (Fla. 4th DCA 1988) 3 Townsley v. State, 443 So.2d 1072 (Fla. 1st DCA 1984) 4 Allwine v. State, 978 So.2d 272 (Fla. 4th DCA 2008) 5 State v. Camp, 596 So.2d 1055 (Fla. 1992) 1

The 3:32 a.m. Sleepy Defense Attorney’s

Guide to Answering the “24/7 Line” by

Joe Bodiford

do not know a criminal defense attorney who does not advertise that he or she is “available 24 hours a day, 7 days a week.” It’s the nature of the beast: most crimes don’t happen during business hours. For those of you who advertise that you answer your phones “24/7” and don’t actually answer them, then stop reading now. And change your advertising! For those of you who fumble for the phone, crawl out of bed, and stumble into the home ofﬁce to try to ﬁgure out what the caller wants, then hopefully this guide will help you when you don’t have time to brew a cup of coffee. This guide is not the definitive version of what to do when you are practically comatose and trying to practice law. It is intended as merely as a list of some issues to think about in advance, so when you do get those late-night calls, you have already given some thought as to who you may react to certain scenarios. And, as with any manual, treatise, guide, compendium, or other “scholarly” work, this guide is a work in progress, and I invite comment, criticism and contributions. After we all put our collective sleepy brains together, we may have something worth looking at during that 3:32 a.m. call.

INITIAL CONSIDERATIONS As if it weren’t obvious, don’t engage a caller if you are sick, medicated, or have been drinking (or worse; if you have a problem with “worse,” please seek help through Florida Lawyers Assistance). First impressions are always the best — especially

when speaking to a prospective client. But more important, you are playing a critical role in the legal system and need to have all of your wits about you. It’s OK to turn the phone off sometimes, or to tell the caller that you will call him or her back in a little while, or the next day. If necessary, give the caller the name of another lawyer who may be in better shape than you to address the emergency. It is always best to quickly find out what the actual physical situation is like on the other end of the phone. Ask the caller if there is law enforcement present, and if so, can the officer hear what the caller is saying. If possible, speak to the officer and ask that the caller be permitted to speak with you in private. Some officers are cool about this, but others don’t even want to

talk to you and are offended that the caller even has you on the phone. Try to have the caller move away from law enforcement without getting in trouble. If the officer is within earshot, tell the caller to be very careful as to what he or she is saying, because even though it is being said to you (an attorney), it can be heard by a third party and is not privileged. If the caller can give you some basic details, a good idea is to ask the caller questions and have them answer “yes” or “no.” For instance, if the call is whether to consent to a search, you could ask if the officer is going to find something illegal if a search is conducted. The officer on scene will only hear a oneword answer that will have no context or meaning. The likelihood of those short FLORIDA DEFENDER • 39

responses appearing in a police report as an admission then becomes very low. You will sometimes get calls from the booking area at the jail. I always operate under the impression that the calls are recorded, and that the attorney-client privilege will not apply.1 So, I tell the caller just that, and to be very careful about what he or she says. I also ask a very speciﬁc question: “Why don’t you tell me what the cops are saying you did?” (as opposed to, “Give me your version”). That will give me a version of the events as a basis to work with, and there is no admission by the caller as he or she is simply informing you of what they have been told by police. Most of the time, a next-day jail visit is in order. Make sure you get the name and number of a contact person on the outside, just in case.

DUTY TO PROSPECTIVE CLIENTS You may get a call from an existing client (as was the one that prompted this guide — he was at a party when the cops showed up wanting to come in and search; of course, there was marijuana that he was concerned would be found), but most of the calls are from prospective clients, or just people who found you in the phone book and want an answer. Florida Bar Rule 4-1.18 sets forth your duties to a prospective client. According to Rule 4-1.18(a), a “prospective client” is “[a] person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.” The comment to the rule states: Prospective clients, like clients, may disclose information to a lawyer, place documents or other property in the lawyer’s custody, or rely on the lawyer’s advice. A lawyer’s discussions with a prospective client usually are limited in time and depth and leave both the prospective client and the lawyer free (and the lawyer sometimes required) to proceed no further. Hence, prospective clients should receive some but not all of the protection afforded clients. 40 • FLORIDA DEFENDER

Thus, 3:32 a.m. callers are “prospective clients” and the issues of confidentiality, conflicts and advice arise. You must keep whatever is said on the call confidential — that’s a no-brainer. The tricky issues are with conflicts and advice. As defense attorneys, we all know that conflicts pop up from time to time. If the call is a DUI, or some type of offense that only one person can commit, then the likelihood of a conflict is slim. If it is a burglary or drug case, for example, then you may want to inquire if there are others involved, and try to get a name. You never know when an existing client may be somehow intertwined, and you don’t want to set yourself up for a conflict, or an allegation in a grievance that you misadvised the caller because of your loyalty to another client. Remember, people can get pretty creative in attacking attorneys, even if the claim is not true. The advice issue is most worrisome in a midnight criminal prospective client call. None of us want to give “advice” to someone we don’t represent — it goes against what we’ve been taught about attorney-client relationships. However, the Bar rule says that prospective clients may rely on a lawyer’s advice. I suggest that you do not tell a caller what to do (unless it pertains to not breaking the law or protecting someone’s safety), but that you merely point out options based on potential consequences, and let the caller make his or her own decision. You also don’t want to tell a caller what to do until you have all the information so that you can help the caller (who may later be a bona fide client) make a sound, well-informed decision. I say this to point out that the last thing you want is for a caller to hire another attorney, and then claim that he or she did something based on your advice (i.e. consent to a search, speak to law enforcement) that gets them convicted (see “Should I speak to the cops?” below). I submit that you must qualify everything you say to the caller. Tell them you don’t know all the facts and giving sound advice requires more than just a fleeting phone call in the middle of the

night. If you cannot do that, err on the side of caution with any advice: don’t consent to a search, don’t speak to the cops … that “advice” (if followed) always leaves some wiggle room once the case is in litigation.

“SHOULD I TAKE THE BREATH TEST?” This is not only a frequent 3:32 a.m. question, it is asked at parties by friends and family, in court, in consultations … all the time. Apparently everyone who goes out on a regular basis has pondered this question and wants the deﬁnitive answer. We all know that the law requires that a person submit to an approved breath or blood test. You must advise the caller the status of the law. I submit that the best answer is to merely parrot the Implied Consent statement that law enforcement reads, and tell the caller that the choice is completely theirs. Resist the urge to pontiﬁcate on the question, “If I refuse, do I stand a better chance of beating the DUI?” You are in no position to answer that question without knowing what the evidence against the caller is, and you certainly do not want to advise the caller to break the law in the event that they have a prior refusal and could get criminally charged for the second refusal.

“SHOULD I CONSENT TO A SEARCH?” You already know the Fourth Amendment law in this area. If the caller’s response is “yes” to your inquiry about whether the cops are going to ﬁnd anything, then why consent? If the caller consents, then the likelihood of a persuasive suppression motion goes out the window — especially if the cop notes that the consent was after the caller spoke to an attorney on the phone. Callers will say that the police promised that if they only ﬁnd a small, “non-trafficking amount,” then they will go away and the whole thing will be forgotten (the popular line being used currently in Tampa, where I practice). We all have dealt with the police; is that

a promise that the caller can take to the bank? Will a judge believe the caller later, that such a promise was made in order to induce the consent that would not have otherwise been given? I think not, and you should not tell a caller to believe anything the police are telling them until you have had time to investigate the matter. Callers will also try to convince you that there is a defense to the presence of the contraband (“It’s my roommates stuff ” … “I forgot it was there until just now”…). The 3:32 a.m. phone call is no time to be discussing a possible defense after consent is given. I submit that the best “advice,” or option, to be given to a caller is not to consent. They may not beat the ride to jail that night, but there may be a possibility to beat the charge on a motion later.

“SHOULD I SPEAK TO THE COPS?” Another million-dollar question. Most callers are going to be under the impression that if they speak to the officers, and “come clean,” that everything will be OK. It’s human nature to want to defend one’s self. Some will have been told that if they cooperate and made a statement, then the LEO will “speak to the prosecutor and judge” and go to bat for the caller. As with the search issue, it’s hard to want to believe a cop at 3:32 a.m. when you, the attorney, have no idea what has transpired. I discussed this earlier in the article, but you are generally not going to be in a position to make an informed decision as to whether to tell someone to speak to the police. I offer this as an example of how a knee-jerk reaction can result in misadvice and a potential ineffective assistance of counsel claim. Coincidentally, as I was finishing this article today, I was visited by the mother of a prospective client regarding a post-conviction matter. Her son was contacted by officers who wanted to speak to him about a sexual battery case. She contacted an attorney, who in turn contacted the officers and set up a

meeting. The officers were vague about what evidence they had against him, but told him that it involved an underaged girl, and that if he did not make a statement he would be arrested for rape. The attorney took him out of the room and, with virtually no information about the case, advised him to admit that the incident was consensual, not forceful (I suppose to try to avoid the sexual battery arrest). The defendant did just that, and was arrested on the spot (how embarrassing to have a client arrested in your office). Later, when encouraging the defendant to enter a plea to a prison sentence, he was told that he had no defense as he had admitted the criminal act. The issue now is whether, under Strickland,2 was that advice deficient, and would the outcome have been different had the attorney not advised him to admit the crime. Would it have been winnable at trial? Would the state have offered probation on a weaker case, rather than demanding prison because he had sealed his own fate? Granted, my example is slightly different as it was not done at 3:32 a.m. But the impact of giving the wrong advice can be exactly the same on the phone as it is in person. Again, err on the side of caution. Some callers will be straightforward and admit to you that they are in too deep or caught red-handed. In that case, you may be able to delay any interrogation until you have time to investigate the case and meet with the client in private (and get retained). If it is necessary, then the interrogation can be turned into a proffer — and a proper proffer agreement can be executed with the government to protect your new client.

“THEY WANT ME TO BECOME A COOPERATING SOURCE OR CI…” Yet another tricky situation. I suggest getting the ofﬁcer on the phone, or in some situations, going out to the scene (if you have not gone out in the middle of the night, you don’t get the criminal defense lawyer merit badge). Often times you will know the detective, and if you

have some rapport with him or her, you can get some facts and make a more informed decision as to what to tell the caller. My suggestion is to get the ofﬁcer to agree to release the caller, and set up a proffer (again, with a proffer agreement) to determine whether substantial assistance is going to work for that caller.

“HERE, SPEAK TO MY CO-DEFENDANT…” This falls under the conﬁdentiality and conﬂict consideration penumbra (love that word). You advertise “24/7” access so you can get clients and make a living. If you speak to the co-defendant, you may have just lost either of them — or both of them — as a client. I cannot make any suggestions other than “don’t do it,” but think this out very carefully, and maybe refer the codefendant to another “24/7” attorney in the phonebook.

“I JUST FOUND OUT I HAVE A WARRANT…” The answer is, as I have discussed above, that you must tell the person that they have to turn themselves in as soon as possible. However, there are ways to handle this that comport with the law and will assist the caller. After telling the caller of the obligation to surrender, I suggest that they could retain me (or any other lawyer) to set a bond or bail motion with the court. Some judges will allow the defendant to come in to court from the street, some will require they surrender before a hearing is set. Figure that out, and let the caller know his or her options. If the caller doesn’t like that option, then suggest that they contact a bondsman to arrange the bond, and then head on in. I have also been able to contact the detective looking for the caller, and arrange for them to meet at the jail. Often this will put both the caller and law enforcement at ease — especially if the caller is wanted for a crime of violence that may have law enforcement on high alert (and potentially create a dangerous situation when they go to arrest him or her with guns drawn). FLORIDA DEFENDER • 41

“I AM A VICTIM …” This one is easy. Tell them to call the police directly. You cannot charge someone with a crime. An exception to this may be in a domestic violence situation, where you could be retained to represent the victim in an injunction proceeding. If you practice civil law, then you may want to delve into the situation a little more with the caller.

CIVIL MATTERS The funniest call I ever got was from a former client, who was drunk as a skunk and had been thrown out of a bar for being disruptive. He wanted to sue them for … something …. I told him to get out of there before they called the cops on him, and to take two aspirin and call me in the morning. He never called, and didn’t get arrested, so I guess that was sound advice. If you have an ad in the phonebook, you will get all types of calls. And, as you can see from my example, clients, former clients and prospective clients will happily abuse the “24/7” line for just about any reason. As I don’t practice civil law, I really don’t get into even discussing those cases over the phone. For those of you who do, I submit that Rule 4.1-18 should be closely adhered to in every situation. Most civil cases can wait until morning, unless you think the caller should either call law enforcement or go to the hospital.

AND NOW FOR THE TOUGH ISSUES… The foregoing issues are really judgment calls on your behalf, but you should think through them in advance and have a semi-ﬁrm response that you can recite in the middle of the night. There are some very peculiar situations, where your actions may later be scrutinized for ethics violations or even criminal prosecution. These are the rare circumstances where someone has committed a crime that has not been reported or discovered, or is in possession of a fruit (like drugs) or instrumentality (like a murder weapon) of a crime, and 42 • FLORIDA DEFENDER

are on your phone line at 3:32 a.m. There are several Florida Bar Rules that are critical to this analysis. They are, in pertinent part: 4-3.4: A lawyer shall not: (a) unlawfully obstruct another party’s access to evidence or otherwise unlawfully alter, destroy, or conceal a document or other material that the lawyer knows or reasonably should know is relevant to a pending or a reasonably foreseeable proceeding; nor counsel or assist another person to do any such act… 4-1.6: A lawyer shall reveal such information to the extent the lawyer reasonably believes necessary: (1) to prevent a client from committing a crime… 4-8.4(d): A lawyer shall not: (d) engage in conduct in connection with the practice of law that is prejudicial to the administration of justice… 4-1.2(d): A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows or reasonably should know is criminal or fraudulent. 

have an obligation to turn themselves in. YOU risk being charged with obstruction of justice or a violation of Rule 48.4(d) if you tell them to “lay low” and forget about it. You can tell the caller that although they need to surrender, after you meet and discuss the case in detail, you will be able to arrange their surrender and bond. There are instances where the crime may never be discovered or reported. In that case, ethically, you may have a duty to somehow report it without disclosing that your caller/new client was the perpetrator. The ethical considerations in that circumstance are extremely important, and too complicated for this (the ﬁrst) version of the 3:32 a.m. guide. However, I submit that the primary importance is confidentiality and protecting the interests of the caller (remember, he or she is provided some protections under Rule 4-1.18). Further, you should also disclose your obligation to report the crime to the caller (or new client). If you feel that the caller is going to commit a crime, then you may be justiﬁed in revealing just enough information to prevent the commission of that crime, or for the protection of someone. I’m sure this is just what you wanted to hear on the other end of the phone when you were awakened.

“I’VE JUST COMMITTED A CRIME…”

FRUIT OR INSTRUMENTALITY OF THE CRIME, OR “WHAT SHOULD I DO WITH THIS BLOODY KNIFE?”

Other than the occasional DUI call from the scene, these are pretty rare. Most of the time the caller has been detained or arrested, but sometimes the caller will have done something that law enforcement does not yet know about. The best advice is to tell the caller that they should be in your ofﬁce bright and early the next day. I submit that it is reasonable to believe that the crime will ultimately be discovered and reported, and an investigation commenced. And, depending on the circumstances, it could be inevitable that the caller will be identiﬁed as the perpetrator. You should also tell them that they

In law school they talked about the client who comes to you with the murder weapon and wants you to keep it in your safe so no one knows about it. Nay, nay, you cannot do that; you will certainly run afoul of the ethics rules. A 3:32 a.m. caller may be in a situation where they have contraband or evidence that should be immediately turned over to authorities — often innocently (such as “I found drugs in my car after my friend returned it to me” … “I found stolen checks in my child’s room…”). The caller may be enlisting your help in ridding him or her of that item without getting in trouble. There is ample authority 3 that

supports two critical conclusions in this regard: £ a defense attorney may not accept evidence, fruits, or instrumentalities of a crime unless he or she makes the evidence available to the prosecutor or investigating law enforcement agency; and £ a defense lawyer may not be compelled to reveal the source of the evidence, fruit, or instrumentality (especially if it will implicate the client or breach a confidentiality).4 It is not unethical for an attorney to hold on to the evidence of a crime for a reasonable period of time in order to prepare a defense, but it must be disclosed.5 Also, the available authority in this area seems to draw a distinction between receiving evidence and merely viewing evidence.6 I submit that there is simple a way in which to get evidence, the fruit of, or instrumentality of a crime into the hands of the authorities. As with the issue of an undiscovered crime, you must act in a way that protects the manner in which the item came into your possession, protect caller/prospective client confidences, and protect the best interests of the caller/prospective client. Here is an example. A medical student came to me, after he had written a fraudulent prescription for pain medication. The pharmacy where he wrote it called law enforcement. That there was an investigation commencing was unavoidable; my biggest concern was the police catching him with a trafficking amount of drugs. He brought the pills to me, we photographed them all, and a colleague called a narcotics detective and turned in the pills. Thus, the caller (who became a client) was safe, and the pills were in the hands of the authorities. No, I did not give them the bottle with his name on it — it remained in my possession until such time as it may have been needed. As a happy side note, the pharmacist could not ID my client, and no charges were filed. I submit that this process is probably best undertaken once you have been retained and there is a formal attorney-

client relationship, as there are greater protections for you as far as how much you can limit your obligation to disclose information, which will increase the protections for that 3:32 a.m. caller. Here’s an interesting thought for you. I have had a few calls in the middle of the night where I thought I was being set up. The most memorable was a caller that told me that he and his friends wanted to start a grow operation, and wanted me to advise them on how to do it so they wouldn’t get caught. Now, none of us would ever entertain becoming a co-conspirator in a drug ring by entertaining that issue. But, with the persistence with which the caller was asking questions, I became highly suspicious that it may have been a controlled call. So, I took his name, told him not to commit ANY crimes, and told him never to call me again as long as he lived. Then I hung up on him. Am I paranoid? Has anyone read about defense attorneys being prosecuted for money laundering and other offenses? The answer is no, I am not paranoid, but I do know what some law enforcement ofﬁcers and prosecutors are capable of doing to defense attorneys. I always ask callers if anyone else on the phone with them, but that is just me…. The moral of the story is to be very careful on the phone, especially when you are half asleep (or are waking up after a night on the town and still a little tipsy — you all know who you are). Do not say something that you do not want played on a tape or repeated by a police ofﬁcer. I don’t know why I feel obliged to mention that, but I do.

My suggestions are not the gospel, and are mentioned so that you can think about them in advance of the 3:32 a.m. call. So, go back to sleep, and as the sergeant always said on Hillstreet Blues, “Let’s be careful out there.”  1 See Black v. State, 920 So. 2d 668 (Fla. 1st DCA 2006) (defendant’s recorded jail telephone conference with his attorney was not privileged where he used a three-way call placed by his sister to speak to his attorney, the sister remained on the line during the conversation, and he knew or should have known that the jail line was being monitored and recorded as he was so warned at the beginning of the call). 2 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) governs claims of ineffective assistance of counsel. 3 Anderson v. State, 297 So. 2d 871 (Fla. 2d DCA 1974) (attorney representing a client charged with receiving stolen property, who turned over the stolen property to the police, acted properly and his receptionist could not be forced to testify about how the property was obtained); Quinones v. State, 766 So. 2d 1165 (Fla. 3d DCA 2000) (“an attorney may not accept evidence of a crime unless he or she makes the same available to the prosecutor or investigating law enforcement agency”). 4 Cluchette v. Rushen, 770 F. 2d 1469 (9th Cir. 1985) (when defense attorney turned over receipts from upholstery shop which recovered bloody seats from a car after a shooting in which the attorney’s client was involved, the communications between the defendant and is lawyer regarding those receipts were privileged. The receipts themselves were not privileged, and if the attorney has left the receipts where they were, all information regarding the receipts would have remained privileged. Once the attorney had them, though, he was obliged to turn them over to the state). 5 California Ethics Opinion 1984-76; Quinones. 6 People v. Meredith, 631 P. 2d 46 (Cal. 1981) (an attorney who merely observes physical evidence need not disclose the evidence or its location to the prosecution, but, if the attorney moves or alters physical evidence, it must then be turned over or its location disclosed).

Joe Bodiford is a Board Certiﬁed Criminal Trial Lawyer in Tampa. He is the past-president of the Hillsborough County Association of Criminal Defense Lawyers. Special thanks to Florida Bar ethics attorney Joy Bruner for her input on this article, and to my paralegal Steve Holler for his contribution to the research.

his article is dedicated to memory of two attorneys, Manuel “Manny” Machin and Marcelino “Bubba” Huerta III. And also to our colleague and friend Victor Pellegrino, and to the hard work of those ﬁne defense attorneys. “IF I HAVE SEEN FURTHER IT IS BY STANDING ON THE SHOULDERS OF GIANTS.” —Isaac Newton, letter to Robert Hooke, 1676

FLORIDA DEFENDER • 43

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44 • FLORIDA DEFENDER

the Best

DAVID ROBBINS … How

to Challenge the Administrative DUI Suspension

STEPHEN STANFIELD … Cross

Examination of the Arresting Ofﬁcer

DR. STEFAN ROSE … Dealing

Blood Evidence

MITCHELL STONE … Closing

with

Arguments

DUI NOTES By

Mitch Stone

DMV Fought the Law and the Law Won Or Can I Get Some BTUs

recall my first experience at the DMV hearing office. It was 18 years ago shortly after the law had changed to provide this new system of administrative suspension and review by the DMV. I was representing my first DUI client after having left the State Attorney’s Office to embark on my new career as a lawyer in the private sector. I read the citation my client received and had my secretary set up the Formal Review Hearing that was referenced on the back of the ticket. We actually created our own form to do this by tracking the language on the citation. We then received the DMV hearing request form via mail which they preferred we fill out instead of our self created form. We did that and sent it in. The next document we received gave us the date and time of the hearing and required us to list witnesses we sought to subpoena to the hearing and provide some reason why they were relevant. We filled that out listing the arresting officer and breath testing officer as the relevant witnesses for obvious reasons and sent it in. We then received via mail blank subpoena forms from the DMV hearing office which we filled out with the names and addresses of

the witnesses and sent them back to the DMV as directed. The DMV issued the subpoenas and sent them back to us. Our postman must have thought there was something going on between me and the hearing officer based upon the daily correspondence between us. With the issued subpoenas in hand we served the officers along with the $5 witness fee checks as we were instructed to do. Thus it appeared that we were off to the races. In just a few days after jumping through these hoops I was scheduled to attend my first DMV Formal Review hearing. The only problem was I figured if it had taken that much effort just to set the hearing up I had no idea what to expect at the actual hearing itself. This whole process seemed rather, well, formal. I was groping in the dark trying to figure out how this administrative hearing was going to go. I called everyone I knew for advice but no one seemed to be able to provide the answers I needed. Ultimately, I was given the sage advice to read the rules governing the hearings. That sounded like a plan. The only problem was Al Gore had not yet invented the internet and finding the rules in the law library posed an even more difficult problem. I suppose it would have helped to know what rules I was looking for. Our normally very helpful law librarian at the courthouse was as puzzled

as I was. He never heard of DMV administrative hearing rules. He opined that he was glad it was not his case. I’m not sure if he was referring to the fact that he was not the lawyer or not my client. Anyhow, after failing at that research project I drove to the DMV hearing office with my briefcase loaded with every law book and research file I could fit inside. I figured if the rules were not easily found than at least I could hit them with the laws that pertained to DUI cases on the criminal side of things. Upon entering the DMV building I was directed into a small, stuffy, cinderblockconstructed, windowless hearing room with the hearing officer. I sat down in the dimly lit room across the desk from where the hearing officer sat. An empty witness chair was positioned so close to me that I wasn’t sure if I was expected to cross examine the witnesses or thumb wrestle with them. Because the hearing officer’s desk was so full of knickknacks, pencil holders, plants and an autographed picture of Bob Martinez that I had to perch my briefcase full of case law, statute books and files on my knees to use as a writing surface. As we sat there waiting for the witnesses to arrive the air conditioner clicked on with a roar every few minutes. I soon realized that the air conditioner at this particular DMV hearing office was there for some type of psychological torture rather than to serve as a cooling system. From what I could tell it clearly FLORIDA DEFENDER • 45

was not designed to cool the room we were in, but it was so loud that it tricked your overheated body thermostat into thinking it was about to receive a blast of cool air every time it revved up. However, as loud as it was, no cool air was ever produced. As a result your body temperature actually went up anticipating the cold air that never arrived. It was the DMV’s own version of waterboarding. Apparently, its only real purpose other than to torture whoever was in the room was to ensure that no matter how loud a witness screamed you would never know what he said. This was extremely effective in making sure that any record from the taped hearing sounded like a recording from the Oval Office circa 1973. In fact, it was so loud that every time the AC clicked on I tried to fasten my seat belt, bring my seat back to its upright position and stow away my tray table. I don’t know if it was the lack of Freon, the fact that I had consumed some extremely spicy wings for lunch or the nervous tension from being completely inexperienced at conducting an administrative hearing in a room that was fashioned after the Hanoi Hilton, but beads of sweat began forming on my forehead. I could hear the second hand ticking on my watch as we waited for the officers to show up, which was interesting since my watch is batterypowered. Maybe I was just cracking under pressure. After about 20 minutes of feeling sweat drops work their way down my neck and onto my now soaking wet shirt collar the hearing officer suggested that the witnesses were not going to show up, I agreed. She then turned on a recording device and asked if I had indeed subpoenaed the officers. I produced the returns of service and she left the room to make copies for her file. Then after I wiped away another sweat drop that was hanging from the tip of my nose the hearing officer returned. The AC clicked on again as she sat down and asked if I had any motions. “What?” I yelled. “Motions!” she yelled back, “Do you have any motions?” “No” I responded, “I did not bring any 46 • FLORIDA DEFENDER

lotion with me.” I was now getting really that in there for good measure, but I concerned. What was going to happen insisted that my illegal stop argument now and why did it involve lotion? No which I clearly put more time and effort one warned me about this next admininto was the winner. Would she like to istrative procedure. Since I had not read hear it again? No? I didn’t think so. I the rules I was praying there would be could hear crickets chirping. no need for a latex glove. After all, I was She then made some comment about only 27 years old. I had a few more years giving the officers 48 hours to contact before that type of procedure was going to her to explain why they failed to show be part of my annual humiliation. I was up and if not she would invalidate the about to make a beeline for the parking suspension. With that she concluded lot when the air conditioner clicked off. the hearing. I was dumbfounded. “Motions,” she said, What was happening? “Would you like to Why didn’t she just make any motions on do what a judge does Clearly I was your client’s behalf?” when a witness fails being punked and I breathed a sigh of to appear? Why not relief, “Oh, thank say, “OK, we’ll reset Ashton Kutcher God, I can do that this hearing for next without even having Tuesday at 2:00 p.m. wasn’t even an to take my pants off.” and if they fail to With that said, appear then … well, actor yet. I proceeded to use we’ll reset it again.” the rest of the hour What was going on? pontificating about how my client was Clearly I was being punked and Ashton unlawfully stopped for a tag light being Kutcher wasn’t even an actor yet. out when in fact there were two tag Later, when my client called to find lights on his car and one worked which out his fate I had no clue what to tell him. illuminated the license plate sufficiently Quite frankly, I had no idea what had which is all the law required. I produced happened, but I confidently explained that a photo of the tag being illuminated by our stop motion was solid even though we the one working light, copies of the tag heard no testimony about it. A week later light statute and case law about equipI received a letter verifying the suspension ment violations and illegal stops. was invalidated and advising my client that As I concluded my argument I made he could pick up his license at any DMV a sweeping gesture with my arm across free of charge. her desk to dramatize that the whole Yes! I won my first DMV hearing case was infirm. I did not realize that case. My argument about the illegal stop in doing so I hit a mini cactus that was had carried the day. Well, that’s what on the desk which adhered to my jacket I thought until I found out that the sleeve. The pot the cactus was planted in officers had not called within two days, smashed into the picture of our smiling so I won by default. It had nothing to do governor, knocking it over and breaking with my motion based on the unlawful the frame. I apologized as the hearing stop. Nevertheless, I figured the day officer helped remove the spiny plant would come when I could win one of from my garment. She asked that I be these hearings based on the stop issue. more careful since the room was so small. Interestingly, I was right. In the years “Really, I hadn’t noticed.” that followed unlawful stop/detention/ She then asked if I was concerned at arrest motions did produce results. Not all about the officers’ failure to appear. at first, but after some favorable circuit “Oh, yeah, that too,” I said. She asked if appellate decisions hearing officers I was moving for the license suspension actually invalidated suspensions on the to be invalidated based on that. That spot for a while. That is until they were sounded good to me. Why not throw instructed to ignore circuit appellate

decisions. Then when the district courts of appeal weighed in there was less resistance and finally in 2004 the Florida Supreme Court settled the matter once and for all with its decision in Dobrin v. Department of Highway Safety & Motor Vehicles, 874 So. 2d 1171 (Fla. 2004). The US Supreme Court was not interested in stepping into this mess so the decisional law was complete. It was then after the DMV had exhausted all legal challenges to the validity of the illegal stop/detention/ arrest motions in the judicial branch that they turned to the legislature. The only way out now was to change the statute regarding the scope of the review. To that end, prior to the 2007 revision of 322.2615 the hearing officer’s scope of review included, whether the person was placed under lawful arrest for a violation of s. 316.193. §322.2615(7)(b)2., Fla. Stat. (2005). So in 2007 §322.2615(7) was revised to read, Whether the law enforcement officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or chemical or controlled substances. This seemed to be the fix the DMV needed. Now they could get back to the business of suspending people’s licenses without regard to the legality of the stop/ detention/arrest. In fact, hearing officers denied motions to invalidate at record pace and circuit appellate courts followed suit by denying writs of certiorari based on that simple statutory change. If it was that easy the DMV should have done that years ago instead of enduring countless nitpicking appellate orders requiring them to do crazy stuff like follow the law. So that was that, right? Not so fast. Thanks to some persistent attorneys who refused to accept that reasoning, some important cases were decided in 2008. The first was Department of Highway Safety and Motor Vehicles v. Pelham, 979 So. 2d 304 (Fla. 5th DCA 2008), rev.

denied, 984 So. 2d 519 (Fla. 2008). In Pelham, the case started as expected with the hearing officer sustaining the driver’s license suspension without regard to the issue raised concerning the legality of the detention. The driver appealed, but this time the circuit appellate court granted the driver’s petition for certiorari and held that the suspension of the driver’s license was invalid because the detention preceding the DUI arrest was unlawful. The Department of Highway Safety and Motor Vehicles therefore appealed to the 5th DCA. The DMV argued that in the old statute the scope of review included the issue of whether the person was placed under lawful arrest for a violation of s. 316.193. However, in 2007 the legislature deleted this language and amended the statute to only include whether the officer had probable cause to believe the driver had driven while under the influence. Therefore the DMV’s position was that the issue concerning the lawfulness of the arrest was no longer applicable to the administrative suspension process. The Pelham court rejected that argument based on the Implied Consent Statute, 316.1932, which requires that a breath test must be incidental to a lawful arrest. The court reasoned that 322.2615 could not be construed in isolation but must be considered in pari materia with 316.1932. As such the suspension based on the refusal to take a test that resulted from an unlawful detention or arrest could not stand. Nevertheless, the 5th DCA certified the following question to the Florida Supreme Court: Can the DHSMV suspend a driver’s license for refusal to submit to a breath test, if the refusal is not incident to a lawful arrest? If not, is the DHSMV hearing officer required to address the lawfulness of the arrest as part of the review process? As noted in the above case citation, the Florida Supreme Court later denied review. While that was happening, another case out of Jacksonville was being

decided. In November 2008 persistence paid off again this time in the 1st DCA due to another attorney who refused to accept the concept that an unlawful stop/ detention/arrest could simply be ignored by a court of law. Importantly, this time it was the driver who had to appeal since the circuit appellate court denied the writ of certiorari. In Hernandez v. DHSMV, 995 So 2d. 1077 (Fla 1st DCA 2008) the formal review hearing officer chose not to consider the issue of whether the arrest of the driver was lawful despite the legal basis raised by counsel. The hearing officer upheld the suspension concluding that police had probable cause to believe the driver had driven while under the influence of alcohol. The Circuit Appellate Court denied certiorari relief ruling that the hearing officer did not have to consider the legality of the arrest due to the statutory change to 316.2615. A writ was taken to the 1st DCA. The Hernandez court agreed with the reasoning in Pelham, holding that 316.1932 unambiguously requires that a driver implicitly consents to submit to a breath test only when such is incidental to a lawful arrest. Thus the Hernandez court concluded that the term lawful arrest contemplated by 316.1932 related to the scope of review set forth in 316.2615 since that statute contemplated a lawful test and a lawful test can only stem from a lawful arrest. Therefore the court ruled that the circuit appellate court erred when it upheld the hearing officer’s decision which failed to consider the legality of the arrest. The Hernandez court certified the following question to the Florida Supreme Court, Can the DHSMV suspend a driver’s license for refusal to submit to a breath test, if the refusal is not incident to a lawful arrest? If not, is DHSMV hearing officer required to address the lawfulness of the arrest as part of the review process? Interestingly, while this case was being decided the 2nd DCA was addressing this same issue in McLaughlin v. DHSMV 2. So. 3d 988 (Fla 2nd DCA FLORIDA DEFENDER • 47

2008). In that case the court held that 322.2615 should not be read in pari material with 322.1932 because doing so creates an ambiguity that otherwise does not exist. Thus the 2nd DCA held that the Circuit Appellate Court did not depart from the essential requirements of law in denying the driver’s petition because 322.2615 as amended did not require the hearing officer to consider the lawfulness of the arrest. The McLaughlin court acknowledged that its holding was in direct conflict with Pelham. As a result, the DMV has taken the position that even though Pelham is settled law until the Florida Supreme Court answers the question in Hernandez or the conflict certified in McLaughlin the DMV does not have to consider the lawfulness of the stop/detention/arrest. However, since the Florida Supreme Court has, in fact, already denied review in Pelham, if case precedent has any influence over these matters, the DMV should follow the Pelham and Hernandez decisions and consider the legality of the stop, detention and arrest if raised by the driver at least in the circuits within the 1st and 5th districts. If not, I would hope that courts are prepared to ensure that they get the message so that when some young lawyer is exposed to what I experienced 18 years ago he or she can confidently attend the hearing with stop/detention/arrest caselaw in hand along with the understanding that despite the revision of 322.2615 nothing has effectively changed at these DMV formal review hearings, except hopefully the air condition filter.  Mitch Stone is board certified in criminal trial law. He has represented defendants in DUI cases for the past 18 years and has tried over 100 DUI jury trials to verdict. He is the senior partner and sole egomaniac of The Law Offices of Stone & Associates, P.A. a law firm in Jacksonville, Florida that exclusively represents the criminally accused. He can be contacted at 1830 Atlantic Blvd., Jacksonville, Florida 32207, 904 / 396-3335, mstone@jackso nvilledefense.com or found on the web at www.jacksonvilledefense.com. 48 • FLORIDA DEFENDER

BuddyBob Dear Buddy Bob, My wife’s cat likes to sleep under my car. I’m always afraid that when I start the engine that the cat will get caught in one of the belts and fur will go a’ ﬂyin.’ Is there anything I can do to prevent it from happening? —Catatonic in Crestview Dear Catatonic, The only advice I can give is to: buy a bunch of cats; buy a bunch of red roses; or convince your wife that you are allergic to them. There ain’t no way to keep that cat from under your car unless you wrap chicken wire around the bottom every time you park it at home. If that don’t work I know a real good divorce lawyer.  Dear Buddy Bob, I have got a few DUI convictions in my life. I’m not sure if it’s three or four. My lawyer told me I got two “ﬁrst-time offenses” because of the job he done for me. Either way I want to know if I can get a driver’s license. I’ve called other lawyers and gotten different answers. Do you know? I also want to know if I can get a bidnezz-purpose-only license because a man’s got to work you know. —Stranded in Starke

Dear Starke, There’s a lot of laws on this and a lot of people seem to get this confused. All questions about suspended driver’s licenses must begin with Florida Statutes Section 322.271. This section addresses the DHSMV authority to modify the suspension of a driver’s license. The part that applies to you is subsection 2(a). Simply put, if you were convicted of two or more DUI offenses whether they be for refusal to take an approved test for your breath, urine or blood or having an unlawful breath or blood alcohol then you cannot get a business purpose only driver’s license during. So if you are currently under the effect of a suspension after being convicted of DUI then you cannot get a driver’s license for any reason at all if you have two or more DUI convictions. Another issue to be addressed prior to even attempting to obtain a driver’s license is covered by Florida Statutes Section 322.291. That section holds that you must enroll and successfully complete what the DHSMV calls “a substance abuse education course conducted.” The program must be licensed by the DHSMV and include a psychosocial evaluation and treatment, if referred. Florida Statutes Section 322.292 governs exactly what that program must do to receive a license to operate. As to whether you can get a driver’s license at all you must look to a different statute. The statute that applies to this

situation is Florida Statutes Section 322.28(2)(e). It holds that if you have four or more convictions for DUI then your license will be permanently revoked. This power enable the DHSMV to take your license regardless of how many “ﬁrst-time” DUIs you have. Finally, the DHSMV must examine you according to Florida Statute 322.28(2)(d) after the period of your suspension ends prior to issuing you a new license. In other words, even after doing everything required of you the DHSMV has the power to deny you a driver’s license if you are otherwise eligible for one. You need to ask your attorney exactly how many DUI convictions you have.  Dear Buddy Bob, I like to party a lot. I also like my friends. We like to be together. When we are we have lots of fun. Usually that means we like to drink, too. We only drink the good stuff like Black Velvet and Natural Light. Since we all live in Liberty County there ain’t no bars and we have to drink at each other’s homes. That means driving. What is a sure-ﬁre way to beat a DUI? —Blasted in Bristol Dear Blasted, Maybe you want to get a new handle, fella? To answer your question, though, the best way to beat a DUI is either don’t drink or don’t drive. I don’t know of any other advice to give. Unless you know some little green men who will take you home in your spaceship. If you do know of any can you ask them to help me too? That’d be going out in style. Gazoo picks you up and drops you off. Them fancy city folk couldn’t compare. 

Treat or Punish Addicts? I

nside this FROM edition of The Florida Defender THE is an article I cowrote entitled, “Is the Prescription Junkie Really Trafficking?” I will let the article speak for itself but the point that I wanted to get across is that the Legislature never by intended for the Denis M. true addict, who de Vlaming consumes all the drugs he can lay his hands on, to be prosecuted and sentenced under the label “drug trafficker.” The statute is so loosely written that trafficking by possession can be brought when a person who is addicted to painkillers walks into a drugstore with a phony prescription and attempts to walk out with a prescription bottle that contains the normal number of pills that would be prescribed by a doctor but amounts to enough pills to form the basis of a trafficking charge that carries a mandatory prison sentence and unconscionable fine for the addict to pay. Although the following story has largely fallen on deaf ears (“What can I do? The statute is clear, I have no choice”), during a sentencing hearing I have told judges about a National

PITS

Geographic article I once read about two aborigine tribes that were faced with the same dilemma. It seems that the water source in their areas were contaminated and poisonous to drink. The first tribe decided that as a way to keep people from drinking the water, that they would be punished if found going to the well. Their punishment was to be severely beaten in front of the entire tribe to serve as a lesson to others. The second tribe took a different approach. It filled in the well, treated those who were affected by the poisoned water, and then went out and found the source of the contamination. That way, they not only treated the tribesmen but also cured the problem. Something to learn here, don’t you think? The criminal justice system needs to wake up and realize that a “one-size-fitsall” approach to labeling drug traffickers is not what was ever intended. A drug trafficker is one who makes his living, or at least a substantial amount of money, on putting illegal or controlled drugs into commerce (read my article). It was never intended to prosecute those individuals hopelessly addicted to pain medication who are compelled to get hold of the drug they are addicted to at any cost. We can continue to punish them with a prison sentence at taxpayer’s expense or we can treat them medically and address their addiction. Perhaps our legislators should invite the aborigines to address the next session of Congress. 

Register now for Blood, Breath & Tears VXI! September 24-25, 2009 Hilton in the Walt Disney World Resort. Lake Buena Vista See page 44 or www.facdl.org for information.

FLORIDA DEFENDER • 49

Florida Case Law on CD! Since 1988 FACDL Past President Denis deVlaming has been collecting case law favorable to the criminal defense bar and now he wants to share this invaluable information with FACDL members. $99 FOR THIS CD IS AN INCREDIBLE DEAL Over 10,000 cases

400 easy-to-research categories

Visit the Seminars & CLEs page of the FACDL web site today to order your copy, or complete the form below.

ORDER FORM FOR FLORIDA CASE LAW ON CD No telephone orders, please.

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MAIL FORM AND FEE TO: Florida Association of Criminal Defense Lawyers, P.O. Box 1528, Tallahassee, FL 32302 or fax credit card information to 850 / 385-6715 or order online at www.facdl.org. 50 • FLORIDA DEFENDER

DEATH IS DIFFERENT… by

Peter N. Mills

Death Penalty Case Law Update T

his case and law update is intended to serve as a research aid in highlighting issues primarily related to the death penalty that occurred during direct appeal and some other matters. Due to space limitations extensive summation has been used and full citation limited. Many of the more recent opinions have not been released for publication in the permanent law reports, and until released, are subject to revision or withdrawal. I encourage you to fully read the cases, statutes, and rules to gain a better understanding of them. If you have an opinion or suggestion about the column, let me know. I may be reached at MILLS_P@pd10.state.ﬂ.us.

August 17, 2009. Judge Keller is facing charges of violating the constitution of the State of Texas and the Texas Code of Judicial Conduct in front of the State Commission on Judicial Conduct. The charges relate to allegations made against the judge regarding her directions that the office of the clerk for the Texas Court of Criminal Appeals not to accept a court filing 20 minutes late by defense attorneys representing a soon to be executed inmate despite a stay issued by the U.S. Supreme Court in Baze, advanced notice about the filing, and a computer malfunction in the inmate’s attorneys’ office.

LIFE OVER DEATH: CAPITAL CASE CLE FOR FLA. R. CRIM. P. 3.112

PENDING SCOTUS CERT PETITIONS WITH APPRENDI ISSUES

This year’s Life Over Death seminar presented by the Florida Public Defender Association is set for September 10-12. The keynote speaker will be Henderson Hill, who represented Brian Nichols in the Atlanta courthouse shooting case. Other topics include but are not limited to representing military veterans, mental retardation, the latest in jury studies, overcoming death recommendations, and motions practice. The seminar will be held at the Hilton in the Walt Disney World Resort, Lake Buena Vista.

McLaughlin v. Missouri, 08-822 FROM THE CERT PETITION: Missouri law requires the sentencing jury to determine that mitigating evidence weighs less than aggravating evidence before a person convicted of ﬁrst-degree murder can be eligible for a possible death sentence. Nonetheless, in petitioner’s case, the Missouri Supreme Court held that the defendant must bear the burden of persuasion at the weighing step. Missouri is the only state in the country that requires the defendant to demonstrate the sufﬁciency of the mitigating evidence to a unanimous jury. This gives rise to the following two questions: I. Whether the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 476 (2000), that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt,” applies to the weighing of aggravating and mitigating evidence at the penalty phase of a capital trial. II. Whether Missouri law violates the Eighth and Fourteenth Amendments by requiring the defendant to carry the burden of demonstrating to a unanimous jury that mitigating evidence outweighs aggravating evidence.

ITALY ABOLISHES DEATH PENALTY; MOMENTUM BUILDING IN EU Italy formally ratiﬁed Protocol 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Concerning the Abolition of the Death Penalty in All Circumstances, which means Italy no longer has any death penalty. Italy ratiﬁed Protocol 13 despite the letters of protest signed by Italian prisoners back in 2007. Forty-one of the 47 member countries have formally abolished the death penalty and the other six have instituted moratoria.

TEXAS JUDGE’S TRIAL SCHEDULED FOR AUGUST 17 The trial for Judge Sharon Keller has been scheduled for

Anderson v. Louisiana, 08-948 FROM THE CERT PETITION: Louisiana law provides that FLORIDA DEFENDER • 51

after the jury ﬁnds that an aggravating circumstance exists. “[a] sentence of death shall not be imposed unless the jury after consideration of any mitigating circumstances determines that the sentence of death should be imposed.” La. Code Crim. Proc. art. 905.3. In Apprendi v. New Jersey, 530 U.S. 466, 476 (2000), this Court held that “any fact (other than prior conviction) that increases the maximum penalty for a crime must be … submitted to a jury, and proven beyond a reasonable doubt.” The Louisiana Supreme Court rejected petitioner’s claim that Apprendi applies to the culpability determination, holding instead that jurors need not employ any standard for determining which defendants convicted of ﬁrst-degree murder and an aggravating circumstance are culpable enough to receive a death verdict. This gives rise to the following constitutional question: Whether the jury’s determination that death should be imposed must be made beyond a reasonable doubt?

VOLUNTEER GETS WHAT HE ASKED FOR Rodgers, 2009 WL 259625 (Fla. February 5, 2009). Direct appeal after remand for new penalty phase. VOLUNTEER: Relief denied. Soon after the second penalty phase began, trial counsel announced to the court that the only mitigation evidence would come through the defendant. During a colloquy, the defendant explained to the judge that he was opposed to life in prison and would receive peace of mind with a death sentence. The court inquired about competency issues and determined there was nothing to be concerned about. The defendant then explained that he had no intention of presenting a defense or any mitigation. Then the defendant waived his right to a jury trial. The defendant explained to the court, “I can count on a death sentence with you I feel, but with this jury, I mean it could go six/six (for a life sentence)…. If I could sign a paper right now, and get a death sentence, and go back to death row, I would do it. To expedite the process, I would do it, you know.” The trial court eventually made a finding that the defendant understood the consequences and the seriousness of the waivers and that the decision was freely, voluntarily, and intelligently made. The State presented evidence about prior violent crimes the defendant committed. The defendant testified about child abuse he suffered but did not discuss any prior mental health mitigation. Then the defendant testified he had lied to police when he denied killing the victim in this case. He said he had a great deal of anger pent up from his childhood. He described feeling remorse and living in his own version of hell for harming an innocent. The victim was selected because the defendant had no ties to her. He took her out on a date so his friend could have sex with her. She refused. The defendant said he could have left the victim with his friend but he was worried about what might happen to her. So the defendant shot her in the back of the head and killed her. The trial court offered the defendant another chance to present mitigation at the Spencer hearing but he refused. The trial court found two aggravators: CCP and 52 • FLORIDA DEFENDER

prior violent, including another murder. The trial court found some mitigation: age, the defendant’s mother sexually abused him, his father physically abused him, his parents abandoned him, the defendant was sexually abused in prison, the defendant had a history of mental illness and other issues. The defense claimed that failing to hold a competency hearing was a fundamental error especially since the trial court knew about the defendant’s history of mental illness. That claim was denied because trial counsel was questioned about competency and the trial judge opined that he saw nothing that would cause him to question the defendant’s competency. Appellate counsel urged the Court to adopt a rule that would require a competency evaluation before a defendant may advocate for his own death. That new rule would be similar to Fla. R. Crim. P. 3.851(i), which applies to postconviction proceedings. But at the trial level, Fla. R. Crim. P. 3.210(b) applies, and “the trial court must hold a hearing to determine a defendant’s mental condition only where the court ‘has reasonable ground to believe that the defendant is not mentally competent to proceed.’” PROPORTIONALITY: Relief denied. There were two weighty aggravators: CCP and prior violent. The prior violent convictions involved a murder and an attempted murder. The defense relied heavily on the FSC’s statements about extensive mitigation from the ﬁrst penalty phase. But the defendant disproved much of the mitigation in explaining that he had faked his way through some of the prior mental health exams to avoid being held in close management custody. The defendant testiﬁed about his fascination with destruction and killing. The case most like the defendant’s is that of the codefendant, who also got death and who had more mitigation that this defendant. Therefore, death is proportionate.

AGGRAVATORS, CALL FOR INTERROGATORIES AND ANOTHER FDLE ANALYST IS CORRECTED Aguirre-Jarquin, 2009 WL 775388 (Fla. March 26, 2009). Direct appeal. The defendant, a prep cook, was convicted of murdering a mother and daughter, who were his neighbors. The daughter was stabbed with a knife 129 times in the arms, legs, hands, feet, back and chest. The mother, who was wheelchair-bound, was stabbed twice. Initially the defendant told police he was not aware of any problem in his neighbors’ residence. Later, he approached police and told them that he had entered the scene, tried to revive the daughter, saw the murder weapon, picked it up, feared the murderer was still there, called out to the murderer and then left. On his way home he stripped naked, put his clothes in a bag, hid the clothes, and then bathed. The defendant said he had not called police earlier due to his immigration status and fear of deportation. AGGRAVATOR – CCP: Relief denied. The judge instructed the jury but later found that the State had not proved the aggravator beyond a reasonable doubt with regard to the mother. A

trial court does not automatically err by submitting an aggravator to a jury even though the trial court ultimately finds that the aggravator was not proven beyond a reasonable doubt. Quoting Hunter, the Court wrote that “[a] judge should instruct a jury only on those aggravating circumstances for which credible and competent evidence has been presented … [B]ecause there was evidence presented that supported the cold, calculated and premeditated aggravator, it was not error for the trial court to have instructed the jury.” “Here, competent, substantial evidence was presented that supported the jury instruction on the cold, calculated and premeditated factor. Specifically, evidence was presented to demonstrate that Aguirre procured the weapon beforehand, brought it with him to the victims’ home, and committed a double homicide. Furthermore, Aguirre had the opportunity to leave without killing (the mother), but instead walked through the house and killed her with a perfectly placed knife wound to the heart. Both the procurement of a weapon and the failure to leave when given the opportunity have been repeatedly found by this Court to be competent, substantial evidence to support the CCP aggravator.” AGGRAVATOR – AVOIDING ARREST: Error found but relief denied. The aggravator was not submitted to the jury but the judge found it had been proven beyond a reasonable doubt. “Even if the witness elimination aggravator were stricken, there would still be a nine-to-three jury recommendation for the death penalty along with several other aggravators, including heinous, atrocious or cruel (HAC), prior felony and victim vulnerability, which were assigned great weight. Accordingly, any possible error was harmless because there was not a reasonable possibility that Aguirre would have received a life sentence without the trial court finding of the aggravator.” AGGRAVATOR – EHAC: Relief denied. The defense argued that the evidence was insufficient to support this aggravator because the victim denied quickly. The Court disagreed. The daughter was killed in a nearby room before the mother was killed. There was no showing that the mother had any cognitive or hearing impairment that would have limited her awareness or hearing the struggle between the defendant and the other victim. “Thus, Carol would have been able to comprehend the incredibly violent scene taking place just outside her door. Further, Carol was partially paralyzed and unable to flee the attacker in her house. Based on the evidence presented that Cheryl was killed first, Carol was stabbed while in her wheelchair, and Carol did not sleep in her wheelchair at night, it follows that Carol was aware of her daughter’s brutal murder and her own pending demise.” The “Court has specifically stated that it uses a “common-sense inference” when evaluating the circumstances surrounding the killing and relating to the victim’s mental state…. Common sense would indicate that an elderly woman confined to a wheelchair, who is one room away from a brutal murder, and who witnesses her attacker walk into the room, face her and stab her through the heart with a ten-inch chef ’s knife would be ‘acutely aware’ of her ‘impending death.’ ”

JURY INTERROGATORIES: Justice Pariente wrote a concurrence, which Justice Labarga joined. She wrote “to address the difficulties created by our failure to allow or mandate special interrogatories in death penalty cases….” Referring to her prior concurrences, Justice Pariente wrote, “The use of special verdict forms would enable this Court to tell when a jury has unanimously found a death-qualifying aggravating circumstance, which would both facilitate our proportionality review and satisfy the constitutional guarantee of trial by jury even when the recommendation of death is less than unanimous.” “This case is also another example of how special verdict forms would assist in this Court’s review of death sentences, and in this case our harmless error analysis on the issues of the effect of the trial court submitting to the jury an aggravator that the trial court ultimately did not find (CCP) and the trial court’s finding of an additional aggravator that it did not submit to the jury (avoid arrest).” The use of interrogatories would permit the ability to receive explicit jury findings. Judge Eaton, the trial judge here, wrote about his concerns in the sentencing order. “How ‘great’ is the weight when the members of the jury cannot agree unanimously on the recommended sentence? Should a 7-5 vote for death be given the same weight as a unanimous vote?” JURY SELECTION – CAUSE CHALLENGE: Relief denied. A juror initially announced that she believed the death penalty is appropriate for all first-degree murders. After the defense questioned her, she said she would consider all of the possibilities. The defense moved for a cause challenge, which was denied, and then used a peremptory strike on her. Aguirre claimed “that his for-cause challenge of juror Morse was wrongfully denied, which forced him to exhaust his peremptory challenges and seat an objectionable juror.” But the issue was not preserved according to the procedure set forth in Trotter. The trial attorney did not request an additional peremptory challenge and did not identify a specific juror he would have peremptorily struck. However, the issue would have been denied on the merits anyway because the juror’s preliminary support for the death penalty and subsequent indication of ability to follow the court’s instruction was not enough to support a successful cause challenge. PROPORTIONALITY: Relief denied. “Based on the evidence set forth earlier, the aggravators the trial court found and the totality of the circumstances, both of Aguirre’s death sentences are proportional compared to other death sentences this Court has upheld.” Here, there were multiple victims and EHAC. NEWLY DISCOVERED EVIDENCE: Relief denied. “During the guilt phase, the State called a latent print examiner to testify about prints taken from the murder weapon. The expert testified that a palm print taken off of the murder weapon matched Aguirre’s left palm print…. Subsequent to the case arriving at this Court on direct appeal, FDLE notified the Seminole County Sheriff ’s Office of inconsistencies in the print work in this case. Specifically, FDLE found that the print examiner’s conclusion was incorrect, and the palm print attributed to Aguirre was inconclusive.” After a hearing on FLORIDA DEFENDER • 53

the issue, “Judge Eaton denied the motion, concluding that the evidence presented during the trial was overwhelming and that “the newly discovered evidence would probably not produce an acquittal on retrial.” Furthermore, the evidence would be cumulative due to Aguirre testifying to handling the knife. Finally, Judge Eaton found that the newly discovered evidence would not produce a different recommendation in the penalty phase.” RING: Relief denied. Ring relief would be precluded by the jury’s unanimous verdict on the burglary charge, which was the basis for the “in the course” of a felony aggravator. Further, “Aguirre’s allegation that the bare majority vote for death is unconstitutional is without merit. This Court has repeatedly rejected similar arguments…. Additionally, Aguirre’s claim that the standard jury instructions are unconstitutional because they place a higher burden on the defendant to obtain a life sentence is without merit.”

DODGING AROUND LACK OF REMORSE Peterson, 2009 WL 196263 (Fla. January 29, 2009). Postconviction. LETHAL INJECTION: Relief denied. Peterson’s arguments about Florida’s three-drug protocol possibly causing undue pain and failure to require trained medical personnel participation has been repeatedly rejected. Peterson failed to present any new evidence to support the arguments. PROPORTIONALITY: Relief denied. “[T]he facts of this case are comparable to other murders during robberies where this Court has found the death sentence to be proportionate.” NON-STATUTORY AGGRAVATOR – LACK OF REMORSE: Relief denied. The “…Court’s precedent prohibits presenting evidence about lack of remorse in support of an aggravating factor. “[T]his Court held that ‘lack of remorse is not an aggravating factor’ and that ‘lack of remorse should have no place in the consideration of aggravating factors.’ This Court has further held that the State ordinarily may not present evidence or argument about a defendant’s lack of remorse in the context of discussing a diagnosis of antisocial personality disorder. For example…, the Court (has) held that the trial court erred in permitting the State to ask on cross-examination whether persons with antisocial personality disorder showed remorse. (The) Court has further held that the State may not circumvent the prohibition against lack-of-remorse evidence by using synonymous words and phrases. Peterson argues that the State’s cross-examination of expert witness Dr. Maher about lack of empathy and contemptuousness as symptoms of antisocial personality disorder was tantamount to questioning and argument about lack of remorse. The State contends that the questioning about Peterson’s lack of empathy and contempt for his victims was not improper because empathy refers to the defendant’s mental and emotional state at the time of the crime whereas remorse refers to the defendant’s mental and emotional state after the crime. We agree that this is a relevant 54 • FLORIDA DEFENDER

distinction. Florida’s statutory aggravating and mitigating factors recognize the defendant’s mental and emotional state at the time of the crime as factors relevant to sentencing. See §921.141(5)-(6), Fla. Stat. (2008). The majority of the State’s questioning of Dr. Maher properly focused on Peterson’s state of mind at the time of the offense as it related to the proposed statutory mitigating factor of substantially impaired capacity to appreciate the criminality of his conduct.” (Internal citations omitted). A few of the State’s questions dealt with remorse but they were brief references to Peterson’s refusal to acknowledge his wrongdoing and did not inﬂuence the jury; therefore, they were merely harmless error. RING: Relief denied. Ring does not apply here due to the prior violent felony conviction. Peterson’s argument that the Court’s case law regarding Ring inapplicability with prior violent felony convictions is procedurally barred because it was not raised to the trial court. Peterson argued that the Court’s decision in Cox allowed evidence during the penalty phase to show more than the mere fact of a prior conviction, “not requiring a unanimous jury ﬁnding that the aggravator was proven violates Ring.” The Court disagreed. “Because

the operative jury where the prior violent felony aggravating factor is present is the jury that convicted the defendant of the prior felony, not the sentencing jury, it is irrelevant for constitutional purposes that the sentencing jury may hear evidence beyond that required to prove the fact of conviction.” BURDEN SHIFTING JURY INSTRUCTIONS: Relief denied. “Peterson claims that the standard penalty-phase jury

instructions given in his case unconstitutionally shifted the burden of proof to him to establish mitigating circumstances and to show that those factors outweighed the aggravating circumstances. His arguments are without merit. Similar arguments have been rejected previously by” the Court.

NEW PENALTY PHASE ORDERED DUE TO IAC Parker, 2009 WL 137502 (Fla. January 22, 2009). Postconviction. INEFFECTIVE ASSISTANCE OF COUNSEL: Relief granted “because counsel failed to fully investigate and present mitigating evidence regarding Parker’s childhood and mental health.” In the penalty phase five mitigation witnesses testified: two investigators, a robbery accomplice, Parker’s mother, and a mental health expert. They testified about the defendant’s chaotic and dysfunctional childhood. No requests were made for education, employment, medical, foster care or his mother’s mental health records. “[P]enalty phase counsel testified that he thought it was the doctor’s responsibility to seek out this information.” Trial counsel only interviewed the defendant, his mother and his ex-wife. The mental health expert at trial

received “quite sparse materials” and no background records. After reviewing two volumes from postconviction counsel, the mental health expert changed his opinion as to the severity of the defendant’s mental and emotional impairment, which would have constituted non-statutory mitigation. Three other mental health experts testiﬁed in postconviction that they would have found statutory mitigation. Under Strickland, the failure to investigate was deﬁcient, and the defendant was prejudiced because the jury did not get to hear about the extensive mitigation. The trial court’s ruling was overturned. The trial court judge indicated there was little difference between the presentations at trial and postconviction and that the defendant’s mental health experts were not credible.

MENTAL RETARDATION: STILL NO DECISION ON BURDEN OF PROOF STANDARD Nixon, 2009 WL 139511 (Fla. January 22, 2009). Postconviction. MENTAL RETARDATION: Relief denied. In proving up mental retardation, each of the three prongs is required to prove up mental retardation. The burden of proving each of those prongs falls on the defendant. With regard to the IQ prong, the Cherry case created an irrebuttable presumption that no one with an IQ over 70 is mentally retarded. The trial court made a credibility finding that the State’s expert, Dr. Prichard, was more believable in finding that the defendant had an IQ of 80. The Court again avoided deciding whether the clear and convincing standard, as listed in the statute, is more appropriate than the preponderance standard for the burden of proof. A defendant is not entitled to a jury finding with regard to mental retardation under Ring. *Take note of the red flags for mental retardation: mother drank during her pregnancy with defendant, infrequent prenatal doctor visits, defendant’s malnourishment and exposure to nicotine and pesticides during his childhood, and others. MENTAL ILLNESS AS A BAR TO EXECUTION: Relief denied. The Equal Protection Clause does not require the Court to extend Atkins to the mentally ill.

FAILURE TO INVESTIGATE “BEYOND CAVIL” Pope v. McNeil, 91-06717-CIV-ALTONAGA (S.D. Fla. December 9, 2009). Postconviction. RELIEF: new penalty phase. This case involved a triple homicide. The defendant received two life sentences and one death sentence, with a jury recommendation of 9-3 for death. CALDWELL: Relief denied. “‘[T]o establish a Caldwell violation, a defendant necessarily must show that the remarks to the jury improperly describe the role assigned to the jury by local law.’ Because in Florida a jury’s sentencing verdict is advisory, “references to and descriptions of the jury’s sentencing verdict in this case as an advisory one, as a recommendation

to the judge, and of the judge as the final sentencing authority are not error under Caldwell.” Here, neither the trial court nor the prosecutor improperly described the role assigned to the jury by the local law, and consequently, “the jury’s sense of responsibility for its advisory sentence recommendation was not undermined….” (Internal citations removed). INEFFECTIVE ASSISTANCE OF COUNSEL – MITIGATION: Relief granted. Deficient performance: “At the penalty phase of trial, Mr. Pope’s mother took the stand and asked for mercy for her son. Her testimony totaled a little over one page of the trial transcript. Other than Mrs. Pope, no other witnesses took the stand during the penalty phase.” (Internal citations removed). The trial attorney testified that he could not recall doing any investigation regarding mitigation, talking with the defendant’s mother, talking with any members of the defendant’s family, or finding out about his childhood. The trial attorney did not engage an investigator because “Well, who was going to pay for it…. I was not in a position to have carte blanche, to have an investigator going around talking to all those people.” The trial attorney testified that he did not know whether an investigator would have been helpful. The trial attorney never asked for funds from the court. The trial attorney did not interview the investigator or Assistant Public Defender who previously worked on the case. At trial, the defendant testified that he did not want any mitigation presentation. However, the defendant’s waiver did not relieve his attorney from the duty of investigating mitigation evidence. Prejudice: “Mr. Pope’s jury recommended a death sentence by a vote of nine to three. Given that some members of the jury were inclined to mercy even without having been presented with any mitigating evidence, and that a great deal of mitigation evidence was available to Mr. Pope’s attorney had he properly investigated it, a reasonable probability exists that Mr. Pope’s jury might have recommended a life sentence absent the errors. Certainly Mr. Pope would have been unconstitutionally prejudiced if the court had not permitted him to put on mitigating evidence at the penalty phase, no matter how overwhelming the state’s showing of aggravating circumstances.” INEFFECTIVE ASSISTANCE OF COUNSEL – FAILURE TO OBJECT: Relief granted. The trial attorney failed to object to the following statement, among others, by the prosecutor during the closing arguments in the penalty phase: “Incidentally, Mr. Pope has announced that he would rather receive a death penalty than life imprisonment.” The defense attorney testified that he “didn’t feel it was necessary” to object and could not say whether he thought the comment was improper. The defense attorney did not have a legal strategy or make a tactical choice; he just did not like “to object too much.” The FSC found that the comments were improper, but did not affect the jury’s decision. “Given the combination of factors surrounding sentencing: counsel’s failure to investigate any mitigation evidence, counsel’s failure to object to disclosure by the prosecutor of Mr. Pope’s preference for a death sentence, and some members of the jury FLORIDA DEFENDER • 55

nevertheless being inclined to mercy, there is a reasonable possibility that Mr. Pope’s jury would have returned a recommendation of a life sentence but for the errors.” The jury did not get to hear about mitigation that would have included an impoverished childhood, physical abuse, positive personality traits, education, employment, honorable military service, “post-Vietnam” factors, and drug abuse. New penalty phase ordered. DEATH BY ELECTROCUTION: Relief denied. The issue is moot due to the State’s use of lethal injection. RING: Relief denied. The claim is procedurally barred. Further, Ring is not retroactive.

TIME ON THE ROW CRUEL AND UNUSUAL? Thompson, 2009 WL 579151 (U.S. March 9, 2009). Postconviction. CRUEL AND UNUSUAL PUNISHMENT: Relief denied. The petition for a writ of certiorari was denied in this case. However, Justice Stevens issued a statement regarding the denial and reiterated his call for “dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces…” In 1976 Thompson pled guilty, after being told he would not receive the death penalty. In the three decades since then “petitioner has endure especially severe conditions of confinement, spending up to 23 hours per day in isolation in a 6-by-9-foot cell. Two death warrants have been signed against him and stayed only shortly before he was scheduled to be put to death. The dehumanizing effects of such treatment are undeniable…. [D]elaying an execution does not further public purposes of retribution and deterrence but only diminishes whatever possible benefit society might receive from petitioner’s death. It would therefore be appropriate to conclude that a punishment of death after significant delay is ‘so totally without penological justification that it results in the gratuitous infliction of suffering.‘ ” Delays in executions are not just due to Court processes. “The reversible error rate in capital trials is staggering. More than 30 percent of death verdicts imposed between 1973 and 200 have been overturned, and 129 inmates sentenced to death during that time have been exonerated, often more than a decade after they were convicted. Judicial process takes time, but the error rate in capital cases illustrates its necessity…. In sum, our experience during the past three decades has demonstrated that delays in state-sponsored killings are inescapable and that executing defendants after such delays is unacceptably cruel. This inevitable cruelty, coupled with the diminished justification for carrying out an execution after the lapse of so much time, reinforces my opinion that contemporary decisions ‘to retain the death penalty as a part of our law are the product of habit and inattention rather than an acceptable deliberative process.‘ ” (Internal citations omitted through out this summary). Justice Thomas filed a concurrence in the denial of the cert petition. A defendant cannot complain about the delay 56 • FLORIDA DEFENDER

of his execution when he caused it with appeals and collateral attacks. Justice Thomas responded to Justice Breyer’s dissent by writing that, “[t]he issue is not whether a death-row inmate’s appeals “waive” any Eighth Amendment right; the issue instead is whether the death-row inmate’s litigation strategy, which delays his execution, provides a justification for the Court to invent a new Eighth Amendment right. It does not.” He disagreed with Justice Stevens’ criticism about the restrictive confinement for death since some times inmates attack other inmates. He disputed Justice Stevens’ reference to 129 death row inmates being exonerated. “These inmates may have been freed from prison, but that does not necessarily mean that they were declared innocent of the crime for which they were convicted.” Finally, he rebuked Justice Stevens for failing to consider the nature of the crimes that led to the imposition of the death penalty. Here, the victim was kidnapped, robbed, repeated raped, tortured “with lit cigarettes and lighters and (the defendants) forced her to eat her sanitary napkin and to lick spilt beer off the floor. All the while, they continued to beat her with (a) chain belt, (a) club, and (a) chair leg.” Justice Breyer filed a dissent from the denial of the cert petition. In addition to other issues, he pointed out that much of the delay was due to the trial court’s failure to permit the use of non-statutory mitigation. “I would add that it is the punishment, not the gruesome nature of the crime, which is at issue. Reasonable jurors might, and did, disagree about the appropriateness of executing Thompson for his role in that crime. The question here, however, is whether the Constitution permits that execution after a delay of 32 years — a delay for which the State was in significant part responsible.”

FLAWED MIRANDA WARNING Rigterink, 2009 WL 217966 (Fla. January 30, 2009). Direct Appeal. Relief: new trial ordered. MIRANDA: Relief granted. Police failed to properly Mirandize the defendant. The defendant was only told that he had the right to an attorney prior to questioning, not during. Justice Cannady agrees with the Court’s analysis but states the Court should back away from its own precedent. Justice Wells concurred with Justice Cannady and further wrote that “this case is an example of why strict adherence to technical readings of Miranda rights forms can bring about an unreasonable and unnecessary result…. (The) language used in the warning made no difference in this case. Simply the substance of what actually happened should prevail over the form of the Miranda warning.”

FLESHING OUT THE KOON WAIVER PROCEDURE Hojan, 2009 WL 485088 (Fla. February 27, 2009). Direct appeal. WAIVER OF MITIGATION: Relief denied. Hojan waived the

presentation of mitigation evidence at penalty phase. Then on appeal Hojan complained that the last part of the second step of a Koon analysis (having an attorney explain what mitigation evidence exists) was not conducted. The reason for the Koon procedure is to make sure the defendant understands the importance of presenting mitigation, has discussed the issue with counsel, and confirmed the decision in open court. The focus is to make sure the defendant knows what rights are being waived and that the waiver is made intelligently. Here, Hojan announced that if the court made his attorneys announce what evidence they had discovered, he would fire them immediately. Defense counsel explained that he had reviewed the evidence with Hojan and offered to proffer a mitigation packet with the court. Hojan affirmed that he had reviewed the packet and that he did not want it reviewed in any way. The State proffered that it had provided the defense with education, employment, financial, divorce, and other records, which Hojan confirmed he had reviewed. “Based on these facts within the record, (the Court found) no error in the trial court’s determination that the defendant knowingly, intelligently, and voluntarily waived his right to mitigation….” Hojan also complained that the trial court should have required his mother to testify and provide mitigation. But Hojan asked that she not testify and there was no evidence of what she might have said. Further, the court appointed a special public defender to research and present additional mitigation. Hojan has not explained what more could have been presented. Finally, Hojan is barred from complaining about the efforts of the special public defender since he knowingly and intelligently waived the presentation of mitigation. WAIVER OF MOTIONS: Relief denied. At trial, the Hojan also waived his right to present post-trial motions and directed his attorneys to withdraw penalty phase motions. On appeal, Hojan claimed he was confused by the trial court’s conflation of the waivers for mitigation and motions. The Court did not agree. “Competent defendants who are represented by counsel maintain the right to make choices in respect to their attorneys’ handling of their cases. This includes the right to either waive presentation of mitigation evidence or to choose what mitigation evidence is introduced by counsel…. Given that (1) the defendant is captain of the ship, (2) Hojan expressly and repeatedly waived presentation of mitigation and withdrew his counsel’s various motions, and (3) Hojan was found competent, we conclude that the trial court committed no error in permitting Hojan to withdraw the motions he withdrew...” Since a defendant has the right to control what mitigation is presented or waive the penalty phase altogether, he also has the right to withdraw the presentation of motions filed by counsel. WEIGHT OF JURY RECOMMENDATION: Relief denied. Hojan complained that the trial court gave the jury’s death recommendation great weight despite the fact that they had not received any mitigation evidence. In Muhammad the Court held that it was error to give a jury’s advisory sentence “great weight,” if the jury was not presented with evidence of

mitigating circumstances. Here, however, the State informed the Court that it could not give the recommendation great weight and the court’s order does not state that such weight was given so the claim was denied. PROPORTIONALITY: Relief denied. There were six aggravators, which included EHAC and CCP, and one mitigator, no significant criminal history, which was insignificant since this case involved multiple deaths. The Court has upheld death sentences in other cases that were less aggravated and more mitigated. RING: Relief denied — in a footnote. Ring relief is precluded due to the multiple contemporaneous convictions. The state is not required to provide notice of aggravators. The jury is not required to indicate the aggravators it found. Unanimous jury recommendations are not required. The “Court has rejected burden-shifting claims that argue Florida’s capital sentencing statute or jury instructions unconstitutionally place the burden on the defendant to prove that sufficient mitigating circumstances exist to outweigh the aggravators…. Finally, (the) Court has also rejected (Caldwell) claims that telling a jury that it only recommends a sentence of life or death, while the final decision on the sentence is up to the judge unconstitutionally dilutes the jury’s responsibility.” Thompson, 2009 WL486187 (Fla. February 27, 2009). Postconviction. Remand ordered. MENTAL RETARDATION: Reversed and remanded. Thompson’s mental retardation claim was summarily denied by the trial court after the FSC previously sent the case back to “allow Thompson to plead and prove the elements necessary to establish mental retardation...” The trial court’s ruling was reversed and remanded “for an evidentiary hearing on Thompson’s mental retardation claim.” Justices Wells, Polston, and Canady dissented since Thompson had prior IQ scores of at least 74, which would have made him ineligible for protection from the death penalty based on mental retardation. Muehleman, 2009 WL 395782 (Fla. February 19, 2009). Direct appeal after resentencing. FARETTA: Relief denied. The trial court immediately and then repeatedly offered defendant the assistance of an attorney. The defendant repeatedly refused those offers. “The record in this case supports the judge’s findings and shows that Muehleman was lucid, literate, articulate and appeared to have a clear understanding of what he was facing. We also emphasize that Muehleman has not alleged either in the trial court or this Court, nor does the record provide any basis to find, that he suffered from a ‘severe mental illness to the point where [he was] not competent to conduct trial proceedings by [himself ].’ ‘[O]nce a court determines that a competent defendant of his or her own free will has ‘knowingly and intelligently’ waived the right to counsel, the dictates of Faretta are FLORIDA DEFENDER • 57

satisfied, the inquiry is over, and the defendant may proceed unrepresented.’ ” (Internal citations omitted). JUDICIAL ASSIGNMENT: Relief denied. Defendant argued that Fla. R. Crim. P. 3.700 required that the case be assigned to the judge who originally handled the case unless necessity dictated otherwise. The Court disagreed and cited to Fla. R. Crim. P. 3.700(c)(2) that “…simply requires that where a new judge is assigned to pronounce sentence in a capital case, there must be a new sentencing proceeding in front of a jury, which is exactly what occurred in this case — Muehleman was given a completely new sentencing proceeding in front of a jury. The rationale behind rule 3.700(c)(2) is that a substitute judge ‘who does not hear the evidence presented during the penalty phase of the trial must conduct a new sentencing proceeding before a jury to assure that both the judge and jury hear the same evidence.’ (Internal citations omitted). “Muehleman’s resentencing proceeded as an entirely new proceeding, before a jury, in which Judge Downey heard all the evidence as to the circumstances of the murder and sentenced Muehleman accordingly.” PROPORTIONALITY: Relief denied. “The Court has affirmed the death sentence in cases involving similar type murders, in which similar aggravation but even more mitigation was present…. The instant case involved bludgeoning, strangling and finally suffocating Earl Baughman. The trial court found that the weighty aggravator of HAC, along with the CCP, financial gain and avoid arrest aggravators, when weighed against only one statutory mitigator, supported a sentence of death. We agree and conclude that the death sentence in this case is proportionate.” Cox, 2009 WL 617793 (Fla. March 12, 2009). Successor postconviction. LETHAL INJECTION: Relief denied. Cox attacked the constitutionality of lethal injection as currently used, the statutes that prohibit CCRC from filing mode-of-execution challenges, and the statute that prohibits releasing the identities of executioners. The Court has consistently denied these claims. Justice Lewis dissented, which Justice Pariente joined, against limiting the mode-of-execution challenges. They would limit prior case law dealing with such issues since mode-of-execution challenges are typical postconviction relief matters for which CCRC counsel should be provided. Byrd, 2009 WL 857419 (Fla. April 2, 2009). Postconviction. DUE PROCESS – INCONSISTENT STATE POSITIONS: Relief denied. The claim is procedurally barred since it was not raised earlier. Further, the claim is meritless. The defendant claimed the State took inconsistent positions regarding whether a codefendant was a credible witness. However the State consistently argued that the codefendant had repeatedly 58 • FLORIDA DEFENDER

lied to protect himself. SENTENCING ORDER: Relief denied. The Defendant claimed the trial court failed to independently weigh the aggravators and mitigators. But in this case the trial judge alone made the findings, wrote the order, sent drafts to both parties, and then the State responded by pointing out a scrivener’s error. This series of events does not merit relief. Reese, 2009 WL 775393 (Fla. March 26, 2009). Postconviction. INEFFECTIVE ASSISTANCE OF COUNSEL: Relief denied. Trial counsel’s decision not to have neuropsychological testing done did not amount to IAC. There was extensive psychological testing and testimony. At the time, there was no indication of possible brain damage. “[D]espite any deficits appellant may have affecting his impulse control, he was capable of planning and carrying out this murder in a controlled manner. Thus, although appellant presented evidence of frontal lobe dysfunction that was not presented at the penalty phase, this evidence is insufficient to undermine…confidence in the outcome.” JURY INSTRUCTIONS – BURDEN SHIFTING: Relief denied. The Court has repeatedly held that the standard jury instructions fully advise the jury of its role and correctly state the law. RING: Relief denied. Ring is not retroactive. Further, Ring relief would be precluded because the murder was committed during the course of a felony, which the jury found unanimously. Here, the defendant was contemporaneously convicted of sexual battery and burglary. AGE – ROPER v. SIMMONS: Relief denied. Roper applies as a bar to execution to those defendants who are chronologically below the age of 18. The defendant was 27 at the time of the murder. MENTAL RETARDATION – ATKINS: Relief denied. The defendant was not mentally retarded. Postconviction testimony indicated that the defendant was under a severe emotional disturbance at the time of the murder, which does not receive the same consideration as mental retardation. OTHER: Appellant did not raise several issues on appeal that the trial court denied. These included public records, Brady, prosecutorial misconduct, Ake, ex parte communications, and others. Duest, 2009 WL395789 (Fla. February 20, 2009). Postconviction. INEFFECTIVE ASSISTANCE OF COUNSEL – HURRICANE WITNESSES: Relief denied. Due to a hurricane, several witnesses did not testify at the penalty phase. Trial counsel requested a continuance, which was denied. The trial court ruled the witnesses could testify at a Spencer hearing through videotape. The witnesses did testify and their testimony was cumulative and supported non-statutory mitigation at most. “Accordingly, we conclude as a matter of law that Duest cannot

demonstrate prejudice under Strickland such that the failure to present the witnesses at the penalty phase would undermine our confidence in the outcome of these proceedings, especially in light of the three aggravators found.” INEFFECTIVE ASSISTANCE OF COUNSEL – PRIOR CRIMINAL HISTORY: Relief denied. Defendant complained that his mental health expert testified about his criminal history, which included theft, burglary and other charges, in response to State questioning over trial counsel’s objection. It was permitted since she considered the issues in formulating her opinion about the defendant. The defendant’s criminal history was already apparent; therefore, there was no prejudice. The jury would still have heard about the defendant’s prior criminal history due to the prior violent felony aggravator. Further, the defense presented a corrections expert who testified about the dangerous conditions of prison the defendant lived through when he was younger.

AXE MURDERER – FOR REAL Simpson, 2009 WL 330946 (Fla. February 12, 2009). Direct appeal. PRACTICE NOTE: When the ﬁrst paragraph of the opinion begins with a description of case that includes a description of your client as one who “proceeded to use the axe to hack (the two victims) to death,” you need to consider a motion to change facts. JUROR RECANTATION: Relief denied. Most of the opinion deals with a juror’s alleged recantation of her guilty verdict. Therefore, the “trial court did not err in allowing the jury to proceed to the penalty phase after juror Cody expressed that the guilty verdicts were not hers….” PROPORTIONALITY: Relief denied. “This case involves the vicious and brutal ax murder of two victims in the privacy of their home….” There were ﬁve aggravators (currently serving a sentence, prior violent felony, EHAC, CCP and the auto aggravator-burglary). There was some mitigation about helping law enforcement solve other cases, family alcoholism, and suicide attempts. Here, as in other double homicides with little mitigation, death was upheld. Kelley, 2009 WL 137511 (Fla. January 22, 2009). Postconviction. BRADY: Relief denied. Summary denial upheld. The Court ruled that Kelley’s claim about evidence disposition forms that indicated certain evidence was transported to a lab was neither favorable nor material. The forms did not exculpate nor exonerate Kelley. Porter, 2008 WL 5250690 (11th Cir. December 18, 2008). Postconviction. INEFFECTIVE ASSISTANCE OF COUNSEL: Relief denied.

The Eleventh Circuit reversed the district court’s grant of habeas relief and found that trial counsel’s performance was not prejudicial. The Court slapped down the district court’s opinion and effectively adopted the Florida Supreme Court’s findings regarding mitigation and aggravation, which were decided against the defendant. Consalvo, 2009 WL 196364 (Fla. January 29, 2009). Postconviction. DNA TESTING: Relief denied. Heath, 2009 WL 196349 (Fla. January 29, 2009). Postconviction. INEFFECTIVE ASSISTANCE OF COUNSEL – MITIGATION: Relief denied. Counsel’s informed decision not to present evidence of antisocial personality disorder (APD) was a reasonable strategic decision “based upon a belief that such evidence would harm rather than help Heath’s penalty phase presentation.” APD is viewed negatively by jurors and “is characterized by aggressions, property destruction, deceitfulness, theft, and serious rule violations.” The defendant met the criteria because he had been physically cruel to others, burglarized homes, lied to cover crimes, and set multiple fires. Counsel’s decision not to present evidence about corporal punishment the defendant experienced did not amount to ineffective assistance of counsel because the defendant directed him not to and counsel made a reasonable decision to portray the parents as concerned and loving, which would have been inconsistent. Counsel’s performance was not deficient for failing to present substantial domination or other issues as mitigation because there was no sufficient evidence that such mitigation existed. Counsel’s decision not to present evidence that the defendant had been raped in prison was not ineffective because the defendant told him not to present the evidence. INEFFECTIVE ASSISTANCE OF COUNSEL – DOUBLING: Relief denied. Defendant claimed that the “‘committed in the course of a felony’ aggravator acts as an unconstitutional ‘doubler’ — i.e., the same set of facts that support the felonymurder conviction also support application of this aggravating circumstance. (The) Court has repeatedly rejected claims that the “committed in the course of a felony” aggravating circumstance constitutes an unconstitutional automatic aggravator (or a ‘doubler’”).” INEFFECTIVE ASSISTANCE OF COUNSEL – SPECIAL VERDICT FORM: Relief denied. “Heath next contends that he received ineffective assistance during the penalty phase due to the failure to request a special verdict form with regard to the specific aggravating factors found by the jury. However, this Court has previously rejected the contention that Florida’s capital sentencing structure is unconstitutional because it does not require a special verdict form that indicates the aggravating circumstances found by the jury. Additionally, in 2005 we held FLORIDA DEFENDER • 59

that it constitutes a departure from the essential requirements of law for a trial court in a death-penalty proceeding to utilize a penalty-phase special verdict form that details the ﬁndings of the jurors with regard to aggravating circumstances. Hence, had trial counsel presented this challenge during the trial proceedings, it would have been rejected. Trial counsel is not ineffective for failing to raise a meritless challenge … and Heath is not entitled to relief on this claim.” (Internal citations omitted). RING: Relief denied. A unanimous jury recommendation for death is not required. Further, Ring is not retroactive. Walton, 2009 WL 196320 (Fla. January 29, 2009). Postconviction. DUE PROCESS – INCONSISTENT THEORIES OF THE CASE TO SEEK DEATH: Relief denied. Walton argued that the U.S. Supreme Court opinion in Bradshaw recognized a new constitutional right prohibiting the government from advancing inconsistent positions to secure the same punishment against codefendants. Walton argued that the government pointed to him as the ringleader in his group of codefendants and then in the codefendants’ trials argued that they killed of their own will. The claim is procedurally barred because it did not recognize a new fundamental constitutional right that applies retroactively. The U.S. Supreme Court refused to rule on this issue in Bradshaw. Further, Walton has raised other versions of this issue before. Finally, the claim would fail because the government used consistent theories in prosecuting the defendants. LETHAL INJECTION: Relief denied. The Lancet article does not constitute newly discovered evidence that “Florida’s lethal injection protocol creates a substantial, foreseeable, or unnecessary risk of pain for the condemned.” Further, execution by lethal injection is not cruel and unusual punishment. Finally, Baze did not “set a diferent or higher standard for lethal injection claims than Lightbourne.” THE ABA REPORT: Relief denied. The ABA report, which was entitled Evaluating Fairness and Accuracy in the State Death Penalty System: The Florida Death Penalty Assessment Report and published on September 17, 2006, does not constitute newly discovered evidence. The report is a compilation of previously available information. Further, nothing in the report would cause the Court to recede from past decisions upholding Florida’s death penalty. Ventura, 2009 WL 196379 (Fla. January 29, 2009). Postconviction. LETHAL INJECTION: Relief denied. Eighth amendment challenges to Florida’s lethal injection protocol have been consistently rejected. Ventura has no new allegations on the topic beyond what Lightbourne and Schwab alleged. Baze has not changed things in Florida. Baze did not set a different or higher standard for lethal injection claims. “…Florida’s current lethal60 • FLORIDA DEFENDER

injection protocol is constitutional under either a substantialrisk, foreseeable-risk, or unnecessary-risk standard.”

THE HAGUE SPEAKS, A LITTLE LATE Mexico v. U.S., 2009 I.C.J. 139, January 19, 2009, General List No. 139. INTERNATIONAL LAW: Relief granted and denied. The ICJ ruled that the U.S. violated the Court’s March 31, 2004, order when Texas executed Jose Medellin. The Court held that the U.S. violated its obligations under the Vienna Convection by denying Medellin and other Mexican nationals’ access to legal assistance from the Mexican Consulate. However, the Court refused to require the U.S. to provide guarantees that such actions would not be repeated. Bates, 2009 WL 217969 (Fla. January 30, 2009). Postconviction. AKE – INEFFECTIVE ASSISTANCE OF MENTAL HEALTH EXPERT: Relief denied. First, the claim is procedurally barred because it was raised and rejected previously. Second, having another expert testify at the penalty phase would have been cumulative to the testimony already provided by two other experts. GRUESOME PHOTOGRAPHS: Relief denied. The photographs at issue were relevant to issues in dispute. The photos were relevant to show how the murder was committed, that it occurred in the course of a felony, and to support EHAC. Hernandez, 2009 WL 217972 (Fla. January 30, 2009). Direct appeal. WITNESS SEQUESTRATION: Relief denied. The trial court allowed the State’s mental health expert to remain in the courtroom during the presentation of lay and expert testimony during the penalty phase, after the defense invoked the rule and the defense objected. Sequestration has been used for centuries and was part of the common law. The purposes of the rule are to prevent a witness from “tailoring” testimony and to help “detecting testimony that is less than candid.” In past cases the Court has approved exceptions for experts. But those exceptions occurred before the State had the right to have a defendant examined and were limited in the scope of how much of the proceedings the expert watched. Here, even under harmless-error test, the claim fails. “In sum, (the State’s expert) did not refute the factual testimony of the witnesses during the penalty phase and admitted that he had observed the testimony of other witnesses during the penalty phase. Only his professional opinions differed from those of the defense expert witnesses. Further, there is no suggestion that either his opinions or the factual predicates upon which those opinions were based would have been different if he had not been allowed direct access to the other testimony elicited during the penalty phase. In fact, Dr. McClaren was

presented with a view of the defendant’s background that the defense itself relied upon for its case in mitigation. Therefore, we conclude that Dr. McClaren’s presence throughout the penalty phase was harmless beyond a reasonable doubt.” Justices Pariente, Quince, and Lewis would have found the trial court’s ruling as error. RING: Relief denied. The State was not required to list aggravating circumstances in the indictment. The jury was not required to make unanimous findings of fact with repect to each aggravator. A special verdict for indicating the aggravators that the jurors found is not required. VICTIM IMPACT: Relief denied. The State requested and the trial court used the victim impact instruction approved in Kearse and Rimmer, which tracked the statute. The instruction helped guide the jurors to understand that the victim’s death was a loss to her family and the community. While the evidence was not to be considered in establishing aggravators or mitigators, it was to be considered. AGGRAVATOR – AVOIDING ARREST: Relief denied. The defense argued that the killing occurred so the defendant could steal money. However, the State noted that the trial court specifically relied upon witness testimony about the defendant’s confession that he killed the victim because she had seen his face. “While Hernandez may not have explicitly told Tammy that he killed the victim to eliminate her as a witness to the robbery and burglary, this statement suggests that his dominant motive was witness elimination…. Moreover, as the trial court noted, the murder consisted of a series of progressively brutal attacks because the victim “would not die.” The record indicates that the last of these attacks, the cutting of the victim’s neck, likely occurred when the victim was already physically incapacitated. If the victim was already immobilized when Hernandez cut her neck, then he would not have needed to cut her neck to steal from her. Such facts belie Hernandez’s argument that the dominant motive for the murder, or an equally dominant motive, was to accomplish the robbery and burglary.” AGGRAVATOR – EXTREMELY HEINOUS, ATROCIOUS, OR CRUEL: Relief denied. Hernandez argued that because the evidence was inconclusive about whether the victim was conscious when her neck was cut, the finding of EHAC was improper. But after an unsuccessful attempt to suffocate the victim, she was held while her throat was slit and stabbed. The victim was alive during that throat slitting because there was a large amount of blood, which indicated her heart was still beating. In one of his statements about the case the defendant explained that the attacks went on for so long because the victim would not die. At some point in time, the victim fought back by scratching the defendant, and his DNA was found

underneath her fingernails. “In sum, regardless of whether Ruth was conscious when Hernandez cut her throat, the defendant’s actions and words and the victim’s physical responses to the series of attacks preceding this final act provide competent, substantial evidence to support the trial court’s finding of the HAC aggravator.” PROPORTIONALITY: Relief denied. The defendant argued that he should have received a life sentence since his codefendant received one and they were equally culpable. The Court held that the defendant’s own words showed otherwise. In one of his statements, the defendant explained that the codefendant would not complete the murder and that he, the defendant, was the one who broke the victim’s neck and slashed her throat. Further, while the codefendant did attempt to suffocate the victim with a pillow, he also provided her with a bag to breathe in to calm her down. Finally, other defendants with similar cases (beatings and stabbings in order to get drugs) have had death upheld. Wheeler, 2009 WL 196310 (Fla. January 29, 2009). Direct appeal. VICTIM IMPACT: Relief denied. The State presented four victim impact statements and fifty-four photographs of the victim and members of his family. Wheeler had made general objections to the presentation of any victim impact evidence but no specific objections to any portion of the testimony or photographs. Wheeler’s current claim that the victim impact became a feature of the trial was not adequately preserved. There was no fundamental error either. While there are limits to victim impact evidence, here, there was no violation of due process. The statements that were allowed described the uniqueness of the victim and the loss to both his family and the community. The quantity and content of the photographs, while more problematic, did not render the penalty phase fundamentally unfair. The trial court suggested but not required the State to use the photographs at a Spencer hearing. The FSC cautioned that, “Although, for the reasons set forth, we do not reverse based on the number of victim impact photographs presented in this case, we nevertheless caution prosecutors to be ever mindful of the limited purpose for which victim impact evidence may be introduced. Prosecutors should make every effort to ensure that the rights of victims and families, who naturally want their loved one to be remembered through testimony and pictures, do not interfere with the right of the defendant to a fair trial. We also remind prosecutors of the admonition in Payne that when presentation of victim impact evidence “is so unduly prejudicial SEE PAGE 63

Pete Mills is an Assistant Public Defender in the 10th Judicial Circuit, Bartow, in the trial unit. He is qualiﬁed to handle capital trials. In addition to his work as an APD, Pete has worked at the Ofﬁce of the Capital Collateral Representative (CCR) and has handled personal injury cases. He is a 1993 graduate from the Valparaiso University School of Law. He may be reached at 863 / 534-4327. FLORIDA DEFENDER • 61

FACDL’S BOOK SHELF

The Challenge: Hamdan v. Rumsfeld and the Fight Over Presidential Power by Jonathan Mahler Review by

Teri Sopp

any criminal defense lawyers have never really thought about what it takes to get a case before the United States Supreme Court, or for that matter, to actually prevail in such a case. The intricate machinations of Supreme Court litigation are not a regular part of the day-to-day world for most of us. In The Challenge: Hamdan v. Rumsfeld and the Fight over Presidential Power, New York Times Magazine author Jonathan Mahler has meticulously reconstructed the uphill battle of U.S. Navy J.A.G. Corps Lieutenant Commander Charles Swift and Georgetown Law School Professor Neal Katyal to challenge the Bush Administration’s suspension of habeas corpus; believe it or not, it’s an interesting and exciting read. Because we all now know how the landmark Hamdan case turned out, and because many of us met Lieutenant Commander Swift at our 2008 annual meeting in Key West, this book is especially fascinating. Mahler writes about how the lawyers’ lives were impacted, how their careers were shattered and their clients were mentally and physically abused.

Mahler doesn’t just recount the path the Hamdan case took; he relives it through every minute of the lawyers’ days, their struggles with their clients, their colleagues and the courts. He also sets forth the history of the military tribunals, beginning with John Yoo’s legendary memorandum authorizing President Bush to respond to 9/11 in any way he felt appropriate. Mahler had unlimited access to Katyal’s journals, and got to know Swift pretty well; in fact, the book “grew” out of a proﬁle Mahler had written for the New

York Times Magazine in 2004. I read this book after Swift received FACDL’s Steven Goldstein Award at our annual meeting in Key West in June, 2008. I had to laugh when Mahler reported that the Pentagon colonel who had recruited Swift as defense counsel had wanted “defense lawyers who would be ‘loyal to the military commissions process,’ not Johnnie Cochran types!” Luckily, for Hamdan (and for the U.S. Constitution), Swift was brought on board as defense counsel. The Challenge, though, touts the true unsung hero of Hamdan: Georgetown Law Professor Neal Katyal (and former Supreme Court law clerk), who actually wrote to the child military defense ofﬁcer to offer his help with the cases. Katyal’s story is one of intensity and dedication; Mahler ably chronicles Katyal’s commitment to the Hamdan case, making the reader feel the pain of all-night research sessions and innumerable mock arguments. Katyal’s obsessive devotion to Hamdan’s Supreme Court case was unrecognized and unheralded, but it certainly was an essential ingredient in the success of the case. Imagine this: after you have worked slavishly on your case for two years and have ﬁnally reached the U.S. Supreme Court, Congress passes a law

Teri Sopp is a Florida Board Certiﬁed Criminal Trial Attorney, practicing in Northeast Florida. She graduated from FSU College of Law in 1978 and spent nine years in the Public Defender’s Ofﬁcer before entering private practice. She is a member of the FACDL Board of Directors. THE CHALLENGE by Jonathan Mahler is published by Farrar, Straus & Giroux, 2008. 309 pages. 62 • FLORIDA DEFENDER

DEATH PENALTY • from page 61

divesting the court of jurisdiction of your case. Then add this in: when you receive notice of your oral argument date just five weeks out, an extra fifteen minutes is added on to argue that new law. Talk about a squeeze play! Katyal and Swift soldiered on, and Katyal made the oral argument, an event usually chronicled by the Supreme Court press in a soporific fashion. In The Challenge, however, Mahler paints the argument as a nailbiter and a cliff-hanger, and gives an astute accounting of the questioning from the bench: Stevens put an even finer point on it. By limiting the jurisdiction of the federal courts to hear detainee lawsuits in the DTA, had Congress suspended the great writ of habeas corpus or not? “I think both,” Clement [the U.S. Solicitor General] replied. “It can’t be both,” Stevens snapped, eliciting laughter from the courtroom. By now Clement’s ease and grace had curdled into defensiveness. He dug in his heels. “I don’t see why I can’t have alternative arguments here, and anywhere else, Justice Stevens.”  Mahler picked out many other salient moments in the argument, but the real joy was the account of Justice Stevens’ reading of the decision from the bench on June 29, 2006. You’ll like reading this book even if it does remind you of some of the more tortuous moments from law school! It will revive your spirit about the work we do. 

that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.” We encourage trial judges to assist in ensuring that the proper balance is struck.” (Internal citations omitted). PROSECUTORIAL MISCONDUCT: Relief denied. The general pretrial motion in limine and subsequent single objection did not adequately preserve this issue. The prosecutor talked about the devastating impact of the victim’s death on his family, the community and the defendant’s family. The defense objected that the State was treating the issue as an aggravator but did not move to strike, have the issue clarified by the judge, or move for a mistrial. The prosecutor quoted Joseph Epstein about living courageously or cowardly, honorably or dishonorably, and the decisions we make in life. No specific objection was made during the trial but the defense had argued pretrial against using victim impact as an aggravator. The prosecutor said he intended to use the victim impact to contrast the defendant’s mitigation. Victim impact is not to be used to weigh the relative worth of one life against another. However, there was no objection and the error was not fundamental. BURDEN SHIFTING: Relief denied. The Court has repeatedly held that Florida’s jury instructions do not establish a presumption of death and then shift the burden of persuasion to the defendant. RING: Relief denied. This case involves a prior violent felony, therefore, Ring does not apply. “…Wheeler was convicted by a unanimous jury of the contemporaneous violent felonies of attempted first-degree murder and aggravated battery with a firearm of deputies McKane and Crotty….” PROPORTIONALITY: Relief denied. “This case involves the premeditated murder of a law enforcement officer who was acting in the course of his official

duties and the attempted murder of two other deputies. Thus, there are multiple crimes involving law enforcement officers, and the murder was committed to avoid arrest. Not only was the murder committed without legal justification but the trial court concluded that the CCP aggravator was established. None of the aggravators found by the trial court has been challenged and they are all clearly supported by competent, substantial evidence. Statutory mental mitigation was found and accorded some weight by the trial court…. We conclude that the circumstances of the murder in this case are similar to, although more aggravated than, other cases involving law enforcement officers in which we have upheld the death penalty as proportional.” Murray, 2009 WL 217964 (January 30, 2009). Direct appeal. “This is the third direct appeal following the fourth trial and third conviction of Gerald Murray…” PROPORTIONALITY: Relief denied. “According to the medical examiner’s testimony, the cause of death was strangulation with multiple stab wounds as a contributing factor. Ms. Vest was also badly beaten with a metal bar, a candlestick holder and a broken bottle that left bruising around her neck, breasts and knees. She also had a black eye, a broken jaw, multiple contusions and at least 24 stab wounds over her face, neck, upper and lower back, abdomen and thigh. Most of the stab wounds were knife wounds, but some were consistent with infliction by a pair of scissors found near her body. Ms. Vest had been strangled with a web belt and two electrical cords. She was also both vaginally and anally raped.” Death is proportionate given these facts, the aggravators (financial gain, EHAC), and lack of mitigation when compared with the codefendant’s death sentence and the death sentences of similar cases involving murder by strangulation, sexual battery and pecuniary gain.  FLORIDA DEFENDER • 63

FACDL’S LIFE MEMBERS Lisa Anderson

Hoot Crawford

Michael C. Heisey

Jonathan M. Raiche

Douglas R. Beam

Thomas E. Cushman

Wayne F. Henderson

Steve Rossi

Jamie Benjamin

Laura Davis

Richard Hersch

David Rothman

Barry W. Beroset

Jeffrey D. Deen

M. James Jenkins

Michael Salnick

Jerry Berry

Denis M. de Vlaming

David J. Joffe

Milan “Bo” Samargya

David C. Bibb

D. Todd Doss

Ira D. Karmelin

Steven Sessa

Ben Bollinger

Bryce A. Fetter

Edward J. Kelly

Kelly Bryan Sims

Bjorn E. Brunvand

Cherie Fine

Norm Kent

Eric D. Stevenson

Derek Byrd

Robert B. Fisher

Nellie L. King

Keith F. Szachacz

Ramon de la Cabada

Kepler B. Funk

Kirk N. Kirkconnell

Brian L. Tannebaum

Joe Campoli

David D. Fussell

Benedict P. Kuehne

Grey Tesh

Steven G. Casanova

Roger D. Futerman

Liane McCurry

John F. Tierney, III

Ronald S. Chapman

Anne M. Gennusa Lindsey

Shannon Howard McFee

George E. Tragos

Daniel S. Ciener

Norman A. Green

Andrew B. Metcalf

John H. Trevena

Stephen G. Cobb

Michael J. Grifﬁth

James T. Miller

William R. Wade

Barry A. Cohen

Fred Haddad

Leatha D. Mullins

Ethan Andrew Way

Andrew C. Colando, Jr.

Jeffrey M. Harris

Donnie Murrell

Robert Wesley

Hugh Cotney

Carey Haughwout

Robert A. Norgard

Flem K. Whited, III

Clinton Couch

William J. Heffernan, Jr.

A. Brian Philips

John L. Wilkins

Thomas L. Powell

Satasha K. Williston

Christopher L. Rabby

Jason D. Winn

Liberty’s Last Champion

64 • FLORIDA DEFENDER

FACDL News

Robert Pardo, Hector Flores, Bruce Fleisher, Michael Catalano, Arthur Jones, FACDL-Miami President Rick Freedman, MiamiDade Public Defender Carlos Martinez, Marjorie Alexis, Richard Sharpstein, Milton Hirsch, Bruce Reich, Michael Mirer, Jude Faccidomo and Betty Llorente.

FACDL-Miami Members Offer Pro Bono Service to Public Defender’s Ofﬁce

he Miami Chapter of the Florida Association of Criminal Defense Lawyers has joined elected Public Defender Carlos Martinez in his quest to provide effective quality representation to the poor of Miami-Dade County. Attorneys have each offered to take, pro bono, at least one third-degree felony appointment. At press time, 38 experienced criminal defense attorneys who are members of FACDL-Miami, began accepting felony cases from the Public Defender’s office. Among them are Eugene Zenobi (39 years), Jack Blumenfeld (42 years), James McGuirk (42 years), Joel Robrish (40 years), William Aaron (37 years), Bruce Fleisher (36 years), Paul Morris (34 years), Bruce Alter

(33 years), Richard Sharpstein (33 years), Alan Greenstein (32 years), Leonard Sands (31 years), Samuel Rabin (30 years), Jeffrey Weinkle (30 years), Richard Hersch (29 years), Eric Cohen (28 years), Bruce Reich (28 years), Milton Hirsch (27 years), Dennis Kainen (27 years), Michael Catalano (26 years), Lawrence Kerr (26 years), Rick Freedman (25 years), Faith Mesnekoff (25 years), Phil Reizenstein (23 years), Hector Flores (22 years), Tony Moss (22 years), Roberto Pardo (22 years), Marjorie Alexis (20 years), Robin Kaplan, Beatriz Llorente, Marshall Dore Louis, Mark Eiglarsh, Arthur Jones, Joaquin Padilla, Jackie Woodward, Keith Pierro, Larry McMillan, Elizabeth Perez, and Michael Mirer.

FLORIDA DEFENDER • 65

The Final Edition* of The Editor’s

Random Jaded Thoughts… by

Brian L. Tannebaum

here is great concern over the State now charging for discovery. I agree that the 20% mark-up on Brady material is ridiculous.  Just when I think I’ve run out of snarky comments, the legislature, in a year with the most severe budget issues, maybe ever, passes a law to make sex with animals illegal.  Why don’t people understand that our practice is not “recession proof?” Yes, crime is up. Why? Because people are b-r-o-k-e. Understand?  How about for one week none of us waive formal reading of Informations? I mean if the state is going

to waste time ﬁling crap cases, we might as well return the favor.  “Public safety,” “Public safety,” “Public safety,” “Public safety,” “Public safety,” “Public safety.” Sorry, I was making notes from a committee meeting in Tallahassee where they were discussing education, taxes and insurance.  Possession of a fake ID is a felony. Five years max in state prison for having a fake ID. Can’t some legislator’s kid get arrested for this so the law can change, immediately?  Bailiff, and not you Mr. cool guy bailiff, I’m talking to you Mr. over-aggressive, every two minutes telling everyone NO TALKING, getting in people’s faces in the gallery, telling me to take my conversation outside. Listen, I’m trying to resolve a case with the prosecutor so you can get to your other job by noon. Now, go, ﬂee. 

Client, I’m pretty sure my call to you is more important than that other call you’re asking me to “hold on for a minute” for, so get over yourself and let it go to voicemail.  Oh, and another thing client, I know your case was dismissed and they keep detaining you at the airport for three hours every time you come here. They also know your case was dismissed, they don’t care, and there’s nothing I can do about it, at all. This is America. You have the right to be detained, or something like that.  Gratuitous defendernet shot: I have a trial tomorrow. Anyone have a motion to suppress? I’m looking to suppress, anything. Thank you.   *This is my ﬁnal EDITOR’S Random Jaded Thoughts. Should Nellie King (Nellie@CriminalDefenseFla.com) be convinced to allow this column to continue, I’ll consider a contract extension during the off season.

Brian L. Tannebaum is FACDL Vice President and editor of The Defender. He is an attorney in Miami.

66 • FLORIDA DEFENDER

FLORIDA ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

Membership Application

Please check the appropriate category:

 LIFE MEMBER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $2,500 (payable in minimum installments of $500 per year)

 Check here if you do not want $10 of your dues to be contributed to the FACDL Political Action Committee (FAIRLAWS). This contribution does not affect the total amount of your dues and is not tax deductible.

PRIVATE ATTORNEY  0 – 3 years of practice . . . . . . . . . $50 annual dues  4 – 6 years of practice . . . . . . . . . $125 annual dues  7 – 9 years of practice . . . . . . . . . $150 annual dues  10+ years of practice . . . . . . . . . . $190 annual dues

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Dues paid to the Florida Association of Criminal Defense Lawyers are deductible as an ordinary and necessary business expense. Dues which are expended for lobbying purposes are not deductible. It is estimated that 20% of the dues are expended for lobbying purposes and are not deductible.

Please complete the following information: NAME SPONSOR REQUIRED: Sponsor must be a current, active FACDL Member. BAR NUMBER

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Mail this application with appropriate dues amount to:

Florida Association of Criminal Defense Lawyers, Inc. P.O. Box 1528 • Tallahassee, FL 32302

 Enclosed is my check payable to the Florida Association of Criminal Defense Lawyers, Inc., or please charge as indicated below: 

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QUESTIONS? Telephone: (850) 385-5080 (800) 369-9503 Fax: (850) 385-6715 E-mail: facdlinfo@facdl.org

Apply for FACDL membership online at www.facdl.org FLORIDA DEFENDER • 67

FACDL

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68 • FLORIDA DEFENDER

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