For those of you who were not able to take the time to listen to the live oral argument in the Florida Supreme Court in State v. Adkins, SC11-1878, on December 6, 2011, you can listen to the archived oral argument by clicking here.
I also came across a few highlights I wanted to pass along. A December 6, 2011, news release on the website for the National Association of Criminal Defense Lawyers states in relevant part,
In today’s argument in Adkins, the attorney for the State of Florida concluded her remarks with a final appeal to the justices to appreciate the importance of this statutory “tool” provided by the legislature in the context of drug offenses because “this is a war.”
“Of course, there is no drug war exception to the constitutional guarantee of due process, nor should there be,” explained NACDL Executive Director Norman L. Reimer. “And there can be no due process under Florida’s felony drug statute so long as its premise remains that an accused is presumed guilty until proven innocent. That approach poses a grave and unprecedented threat to liberty.”
Florida argued first. Justice Barbara Pariente immediately began asking the state’s attorney about the breadth of the current law, using hypothetical situations about innocent behavior that would be considered criminal conduct under it. During the defense presentation, Chief Justice Charles Canady argued that the statute is reasonable in the vast majority of cases. He pointed out that defendants can raise lack of knowledge as an affirmative defense, which should be sufficient to protect the truly innocent. Justice Jorge Labarga noted that the affirmative defense isn’t much help in practice because juries are still instructed to “presume” a defendant knowingly possessed an illegal substance.
The defense attorney urged that the availability of the affirmative defense is not sufficient to make the statute constitutional. He argued that because it requires a defendant to produce evidence of innocence, rather than requiring the state to provide evidence of guilt, it unconstitutionally denies a defendant’s Fifth Amendment right against self-incrimination. Finally, the defense argued that the statute as written requires citizens to examine every substance they possess to ensure that the substance is illegal. That requirement, he argued, is unreasonably burdensome and therefore unconstitutional.
In response, Florida’s attorney stated that “every citizen has been drafted” into the “war on drugs,” and the requirement that everyone know they aren’t in possession of illegal drugs is not an unreasonable burden.
I agree with the assessment of Greg Newburn, Florida Project Director Families Against Mandatory Minimums: there is simply no way to predict which way the Florida Supreme Court will go on this. Since this case was fast tracked for oral argument, hopefully an opinion may come sooner rather than later. However, if the Justices are divided, as they often are in important criminal cases, it may take more time than Florida’s criminal defense attorneys would like.