Monthly Archives: June 2011

Judicial Vindictiveness in Sentencing-Jerome Vardaman v. State, 4D08-2603

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In an opinion released on June 29, 2011, the Fourth DCA reversed a sentence which the Court found to be the product of judicial vindictiveness.  In Jerome Vardaman v. State, 4D08-2603, the Court reversed two 30 year sentences imposed by Circuit Judge Cynthia Imperato of the Seventeenth Judicial Circuit.  In 2002, Vardaman pled to carjacking with a firearm, robbery with a firearm, and resisting arrest without violence, and was sentenced as a Youthful Offender to a combination of prison, community control, and probation.  In 2008, Vardaman was arrested on new drug charges.  During the violation of probation proceedings, Judge Imperato initiated plea discussions with Vardaman.  He rejected the Judge’s initial offer of 8 years’ incarceration on Counts I and II, concurrent, with credit for four years, and proceeded to final hearing.  After being found guilty of the violation, Judge Imperato sentenced Vardaman to concurrent 30 year terms.

In its analysis, the Court cited Mounds v. State, 849 So. 2d 1170, 1171 (Fla. 4th DCA 2003) and Wilson v. State, 845 So. 2d 142 (Fla. 2003) for the proposition that where there is judicial participation in plea negotiations, followed by a harsher sentence, a totality of the circumstances approach must be used to determine if the sentence is the product of vindictiveness.  If the defendant demonstrates vindictiveness, the burden shifts to the  State to rebut the showing.  The Court also recalled that other factors to consider include (1) whether the trial judge initiated the plea discussions in violation of State v. Warner, 762 So. 2d 507, 513 (Fla. 2000); (2) whether the judge, through comments on the record, appeared to have departed from the role of impartial arbiter by either urging the defendant to accept the plea, or by stating that the sentence imposed would hinge on future procedural choices, such as exercising the right to trial; (3) the disparity between the plea offer and ultimate sentence imposed; and, (4) any lack of facts on the record to explain the reason for the increased sentence.  Because Vardaman established each of the foregoing factors, the Fourth DCA reversed his sentence and remanded the matter for resentencing before a different Judge.

The lesson criminal attorneys can take from this case is obvious: be cautious when the trial judge participates in plea negotiations.  If the ultimate sentence imposed is more harsh than what was initially offered, and if the above factors are present, there may be a good basis to appeal the sentence based on judicial vindictiveness.

Blago Stunned After Jury Convicts on Corruption Charges

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CNN reports that former Illinois Governor Rod Blagojevich has been convicted of 17 out of 20 corruption charges for trying to sell the U.S. Senate seat which had been held by Barack Obama before Obama became President.  Most counts reportedly carry a maximum of 20 years.  “I am frankly stunned,” Blago reportedly stated after the verdict was rendered at the conclusion of his retrial.  This may be the first time that Blago actually had little to say since his criminal case commenced in 2008.

What stuns me is the open air of invincibility that Blagojevich displayed throughout the process.  What exactly was it that stunned him?  That he was charged?  That a jury convicted him? What is it that makes a person who occupies a position of power believe that their power is absolute?

What happens next should be fairly routine for criminal cases.  A sentencing hearing will be scheduled, and a sentencing report will be likely be generated.  The Government and defense may file sentencing memoranda to be considered by the Court.  At the sentencing hearing, the Court will likely hear argument of counsel and take testimony from witnesses.  If Blagojevich is smart, he will take any advice given by his attorneys, and try to show remorse for his actions.  The attitude he has shown to the press cannot be the attitude he shows to the Judge at sentencing.   After considering all the evidence, the Court will pronounce the sentence, and the time for appeal will start ticking.  I can’t predict what issues will serve as the basis for appeal, but I think it’s pretty safe to assume that there will be an appeal.  Stay tuned . . .

First DCA Judge Paul Hawkes Charged in Ethics Complaint for Involvement with Construction of “Taj Mahal” Courthouse

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On May 17, 2011, formal ethics charges were filed against First DCA Judge Paul M. Hawkes for his involvement in the construction of the First DCA’s new courthouse in Tallahassee.  The Notice of Formal Charges filed by the Judicial Qualifications Commission can be viewed on the Florida Supreme Court’s website.  Attorneys, both criminal and non-criminal, are aware that many courthouses around the State are suffering from a lack of funding.  For example, the Fourth DCA in West Palm Beach is closing the doors of its law library on July 1, 2011, and for the last several years, the Broward County Courthouse has been suffering from repeated instances of flooding.

However, despite such tough economic times, the First DCA managed to construct what has been called the “Taj Mahal” of courthouses.  An October 2010 audit of the new courthouse revealed that unnamed Judges at the First DCA took control of the construction process, and added millions onto the budget with custom fixtures, etched glass, African mahogany, and granite.  According to the audit, the cost for the new courthouse was initially budgeted at $31 million.  By the time all the extras were added, the cost was increased to $48 million.

According to the Notice of Formal Charges, Judge Hawkes allegedly (1) bullied several individuals involved with the construction of the courthouse; (2) persuaded the other members of the Court to spend budgetary surplus on the purchase of 45 new desks for law clerks just so the desks would match the rest of the “color palette” in the courthouse; (3) tried to coerce the Court Marshal to change his account about a trip that Judge Hawkes was reportedly planning to the site of one of the courthouse furniture manufacturers; (4) took over the budgeting functions of the Court Marshal’s office, and manipulated the Court’s budget; (5) misled the other Judges on the Court as to what he was doing with the budget; and, (6) forced the Deputy Marshal to destroy a cabinet full of public documents relating to the courthouse construction.  In a charge unrelated to the new courthouse, Judge Hawkes allegedly directed one of his own lawclerks to work on a case that was being handled by his son before the Florida Supreme Court.

Although Judge Hawkes has yet to file a formal response to the charges, a Response and Objection filed by the JQC today shows that Judge Hawkes has requested the JQC to provide information relating to the charges.  It will be interesting to see how this turns out!

Two US Representatives Introduce Bill to End Some Federal Penalties for Marijuana, But Maybe a Different Approach is Needed

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The Palm Beach Post has reported that US Representatives Barney Frank and Ron Paul have introduced a bill that would end some Federal penalties for marijuana.  Although many on the left will praise the Representatives for introducing the bill, any party (no pun intended) will likely be short lived.  While a recent report by the Global Commission on Drug Policy indicates that there may be growing support for a bill like that introduced by Representatives Frank and Paul, the likelihood of the bill passing seems to be very low.  Not only is the House controlled by Republicans, but the Democrats lack a majority in the Senate.  It seems pretty unlikely that enough Republican Senators would cross the aisle and vote in favor of such a bill.

Instead of focusing their efforts on decriminalization, perhaps Federal legislators should consider providing increased funding for State drug court programs.  In 2006, the Department of Justice issued a report wherein the Department discussed the feasibility of a Federal drug court program.  In the last footnote on the last page of the Report, the Department noted that 72% of State courts reported that a lack of funding was their major obstacle.  Increasing  funding to State drug court programs would provide both social and economic returns to both Federal and State governments.  With their focus on rehabilitation instead of incarceration, drug courts have helped to reduce the caseloads in other criminal divisions, have helped to reduce the prison population, and have helped to address the problems of repeat offenders.  Drug courts may also help save money down the road.  If drug court participants get the treatment they need in drug court, they may be less likely to commit more drug related offenses in the future.  And if those same drug court participants commit fewer drug related offenses, fewer arrests and prosecutions will be needed, thereby saving many State and Federal agencies time and money.

Everyone knows the economy is suffering now, and has been for quite some time.  What many people, other than attorneys, may not know is that the Courts are facing similar economic issues.  The State of Florida has reduced court funding to dangerous levels.  Even though the US Congress faces numerous budgetary issues, it may be smart to revisit the issue of drug court funding.

To learn more about Florida’s drug courts, go here.

Is Florida’s Death Penalty Unconstitutional? The Court says YES in Evans v. McNeil, 08-14402-CIV-JEM

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A United States District Court Judge for the Southern District of Florida, Judge Jose Martinez, recently granted a 2254 petition for writ of habeas corpus in Evans v. McNeil, 08-14402-CIV-JEM, concluding that Florida’s death penalty procedure violates the United States Supreme Court case of Ring v. Arizona.  In Ring, the Court struck down Arizona’s death penalty scheme because jurors were not required to agree on aggravating factors, which violated the Sixth Amendment.  In Florida, the death penalty is handed down in a 2 step process.  First, the jury may recommend the death penalty if 6 of the 12 jurors agree.  (I am not the only attorney to recognize how ironic it is that to be convicted of even a misdemeanor crime, the jury verdict must be unanimous, but to be sentenced to death, only 6 of the 12 must agree).  In the second step, after the jury makes its recommendation, the Judge conducts a sentencing hearing where he or she uses the jury recommendation in reaching the actual sentencing decision.  According to Judge Martinez’s opinion, the Florida scheme violates Ring because (1) the jury is not required to unanimously agree on the factors in support of the death penalty; (2) the jury never makes any specific findings of fact in support of their recommendation; and, (3) in the sentencing phase, the Judge takes evidence alone, without a jury, and neither the defendant, nor any reviewing court, has any way of knowing whether the Judge imposed the death penalty based on the same, or different factors, than were relied on by the jury.  According to Judge Martinez, such a process cannot be reconciled with Ring.

No doubt, Judge Martinez’s Order will be appealed, and criminal lawyers across the State will be watching.  A flurry of appeals will likely be filed by death row inmates themselves.  Perhaps the Florida Legislature could just save everyone some time and effort, and create a new scheme to cure the constitutional deficiencies.  Somehow, I suspect that won’t happen.  The Florida Supreme Court already asked the Legislature to fix the sentencing scheme, and the Legislature failed to act.  Even if the Legislature did act, I doubt they could pass anything.  If Florida’s legislators cannot even agree on simple legislation, how could anyone expect them to agree on something as important as the death penalty?

To read more about this topic, see the articles in the Palm Beach Post, the Sun Sentinel, and the Southern District of Florida Blog.

Review of the Merits of a Section 2254 Petition for Writ of Habeas Corpus: Childers v. Floyd, No. 08-15590, 2011 WL 2162083 (11th Cir. June 2, 2011)

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Turning back once more to the topic of petitions for writ of habeas corpus, if a court determines that all the procedural requirements have been met, the court may then proceed to review the merits of the petition.  Under section 2254(d) (1)-(2), the petition shall not be granted with respect to any claim that was adjudicated on the merits in State court, unless the adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or, “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”

The Eleventh Circuit opinion of Childers v. Floyd, No. 08-15590, 2011 WL 2162083 (11th Cir. June 2, 2011), illustrates how difficult it can be to prevail on the merits of a habeas petition.  In 2001, while Childers had been serving as a County Commissioner for Escambia County, Childers and a fellow County Commissioner, Willie Junior, became involved in a kick-back scheme relating to the construction of a soccer complex owned by one Joe Elliot.  Junior entered a plea agreement with the State, and testified against Childers at Childers’ trial.  After Childers was convicted of bribery and unlawful compensation for official behavior, Childers was sentenced to 42 months’ incarceration.  Elliot was acquitted.  See Childers, 2011 WL 2162083 at *1-*6

Childers moved for a new trial, arguing that the trial court erred in part by violating his 6th Amendment confrontation rights.  The trial court disagreed, and Childers pursued his 6th Amendment claim through direct appeal and in his petition for writ of habeas corpus.  Even though Childers initially won a victory in his appeal to the Eleventh, the Court voted to rehear the case en banc, and ultimately affirmed the district court’s denial of Childers’ petition.  See Childers, 2011 WL 2162083 at *9-10.  In its rationale, the Court emphasized the long-standing principles of comity, and determined that the state court had properly adjudicated Childers’ claim on the merits.  See Childers, 2001 WL 2162083 at *10-*13.  Proceeding to the merits of the petition, the Court recalled the parameters of review under section 2254(d)(1), as well as the highly deferential review of state court factual findings.  See Childers, 2001 WL 2162083 at *13-*21.  After analyzing Childers’ claims in light of the “multiple layers of deference owed to the state court’s determination,” 2011 WL 2162083 at *22, the Court ultimately found that Childers was not entitled to habeas relief because Childers failed to show that the District Court of Appeal unreasonably applied federal law, or that the decision was contrary to clearly established federal law.

People should take two things away from the Childers opinion.  First, while prevailing on a petition for habeas corpus in the Eleventh Circuit is extremely difficult, it is possible.  Unfortunately, any victory may be short-lived.

Florida Teachers Union Files Class Action Suit to Halt State Employees’ New Pension Requirement from Taking Effect

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Here is an update to my previous post regarding Governor Rick Scott’s lack of respect for State employees:  the Florida Teachers Union has filed a class action lawsuit against the State of Florida in an attempt to stop the new pension requirement from taking effect July 1.  Read the news report here.  We will have to wait and see what happens. . .

Why does Governor Rick Scott Seem to Hate Florida’s State Employees so Much?

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Since he has taken office, Governor Rick Scott has made no attempt to hide his apparent dislike for Florida’s State employees.  First, he proposed State pension system changes that would require State employees to pay 5% into their own pension.  Next, he posted on the web the actual salaries of individual State employees.  Then, he proposed mandatory random drug testing of all State employees.  Now, at first blush, some of these suggestions may seem like a good idea.  For example, if private sector employees have to contribute to their retirement, why shouldn’t State employees?  And, isn’t it true that government transparency is enhanced by the posting of State employee salaries?  And shouldn’t Florida taxpayers have a right to make sure that their tax dollars are not given to State salaried people who are drug users?

What many may not realize, however, is that the State employees are in effect being punished by these maneuvers.  All of the Governor’s proposals have been made under the guise of cost-saving because State employees make up a large sector of the Florida economy.  However, what is often overlooked is that State employees are by far the lowest paid employees in the State.  For the most part, people who work for the State have accepted excruciatingly low salaries in exchange for affordable health insurance and access to a retirement fund.  By making State employees pay a percentage of their already low salary toward their retirement, their low salaries are only being  reduced all the more.  Publication of state salaries is not new.  The salary of Florida’s Constitutional and elected officials has been widely disseminated and publicly available for years.  However, such salaries are generally not publicized in connection with any individual, unless the individual decides, for example, to run for public office.  Moreover, publicizing the salaries of individual lower level employees, who are NOT elected to their position, is new.  How many people in the private sector would want their personal salaries published on the web for the world to see?

A news report in the Sun Sentinel today reports that the ACLU has stepped in and filed a lawsuit against Governor Scott’s drug testing policy.  In response to the lawsuit, the Governor has suspended implementation of the program.  Finally, there may be a small victory for the State employees.  As a former State employee, I had the pleasure of working with some of the smartest and most dedicated people I have ever known.  Most employees work long hours to make sure the job gets done correctly.  The people I have known in State employment are dedicated, professional, and caring.  Many in the private sector may not realize that it is the low paid State employees who are the backbone of many Florida government offices.  Despite the fact that State employee positions are being slashed left and right, and despite that fact that numerous empty positions are never going to be filled, the State employees I know continue to keep their offices running smoothly and efficiently.  Why would the Governor feel the need to keep punishing them?

Petitions for Writ of Habeas Corpus: Exhaustion and Procedural Bar

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As I mentioned in my last post on petitions for writ of habeas corpus, petitions have to be timely filed.  In addition to timeliness, petitioners also have to consider the issues of exhaustion and procedural bar.

Exhaustion is a concept based on comity and federalism.  Although the Federal courts are available to consider Federal constitutional questions, the Federal courts do not sit in a strict appellate capacity over the State courts.  Generally, for the exhaustion element to be met, the petitioner must have presented any Federal constitutional claims to the State court, thereby allowing the State court the opportunity to review the claims first.  If the claims have not been presented to the State court, a Federal court may find that the claims have not been exhausted.  In such instance, the Federal court may dismiss the Federal 2254 petition without prejudice, so as to allow the petitioner to present, or exhaust, his claims in State court.  In addition, if a 2254 petition contains both exhausted and unexhausted claims, (otherwise known as a “mixed petition”), the 2254 petition may likewise be dismissed without prejudice.  A good discussion of these principles can be found in Thompson v. Wainwright, 714 F.2d 1495, 1503-1504 (11th Cir. 1983); Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir. 1998); and, Bailey v. Nagle, 172 F.3d 1299 (11th Cir. 1999).

With regard to procedural bar, where a 2254 petitioner has failed to raise his or her Federal claims properly in State court, the Federal court may find that the petitioner is procedurally barred from raising the claims in Federal court, unless a petitioner can make a showing of cause for and actual prejudice from the default, or by establishing a fundamental miscarriage of justice.  See Bailey, 172 F.3d at 1306.  As noted in Bailey, 172 F.3d at 1302-1303, claims are generally procedurally defaulted in two ways: (1) where the State court correctly applies a procedural default principle of state law and determines that the Federal claims are barred; or, (2) where the petitioner never raised the claim in State court, and it is obvious that the unexhausted claim would be procedurally barred based on a State law procedural default.  Where unexhausted claims would be procedurally barred in State court, the Federal court may determine that such claims do not provide a basis for Federal habeas relief.  See Snowden, 135 F.3d at 736.

Nevertheless, where it would be futile for a petitioner to return to State court because procedural defaults bar any right to relief, the Federal court may determine that such futility is an exception to the exhaustion requirement, and decline to dismiss the petition.  See Bailey, 172 F.3d at 1306-1307 (Carnes, J. dissenting).

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Broward Circuit Judge Barbara McCarthy: Remarkably Different Sentences in State v. Ryan LeVin and State v. Maximo Gordon

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The Sun Sentinel published an article today, June 10, 2011, discussing the sentencing disparity between two criminal cases: State v. Ryan LeVin, and State v. Maximo Gordon.  While LeVin was fortunate to receive the benefit of a downward departure, Gordon was not so lucky.  LeVin’s downward departure was the result of negotiations between counsel for the Defendant and counsel representing the family of the victims.  Counsel argued that LeVin should not be imprisoned because the need for restitution to the family outweighed the need for imprisonment.  Although the State requested an unspecified term of imprisonment, the Judge ultimately sided with the Defendant and imposed a sentence that allows LeVin to remain on house arrest in his parent’s oceanfront condo.  However, Gordon received a sentence of over four years’ imprisonment.

Both LeVin and Gordon each had prior criminal records.  But LeVin, who fatally struck two British businessmen and fled in his Porsche, gets to remain on house arrest, while Gordon, who fled officers on an ATV in a field in Deerfield Beach and injured nobody, gets sentenced to over 4 years’ imprisonment.  While the ultimate sentence imposed is always at the discretion of the Judge, and each case needs to be considered on its own merits, the striking disparity in sentencing in these two cases does little to refute the public impression that those with money receive different treatment from the courts than those without money.  Let’s hope that is not what occurred here.