Last week, the Florida Supreme Court issued two opinions which are important for different reasons. The first, State v. Bowers, No. SC09-1971, is a real victory for criminal defense lawyers all over the State. The second, Nader v. Florida Dep’t of Highway Safety and Motor Vehicles, No. SC09-1533, has important implications for appellate lawyers, both criminal and civil.
If you handle a lot of suppression hearings in traffic stop cases, you’re probably familiar with the fact that sometimes, the officer who stopped your client may not appear for the hearing. If that happened, prosecutors might previously have relied on the fellow officer rule to elicit testimony from another officer who was on scene to testify at the hearing as to the basis for the traffic stop. (I remember having to do that fairly often when I was a prosecutor in Broward.) Now, as a result of State v. Bowers, prosecutors won’t be permitted to use the fellow officer rule as a way to circumvent hearsay rules in suppression hearings anymore. It’s not a difficult or long opinion to read, so I won’t bother to rehash it here. The bulk of the opinion focuses on the rationale underlying the fellow officer rule, as well as the proper purpose of the rule.
Attorneys who handle criminal appeals should take a minute to read Justice Lewis’ dissent in Bowers. In my opinion, he makes a valid point: that the Second District Court of Appeal erred by dispensing with the applicable rules of procedure, and granted certiorari review in Bowers merely because it disagreed with the Fourth District Court of Appeal’s Ferrer opinion. Justice Lewis stated:
The decision below is the equivalent of a canary in a coal mine, marking the beginning of the end of the constitutionally mandated limitations imposed on the jurisdiction of our district courts. As discussed in my dissent to this Court‟s majority opinion in Nader v. Florida Department of Highway Safety and Motor Vehicles, No. SC09-1533 (Fla. Feb. 23, 2012), this case is an example of district courts doing precisely what the majority in Nader cautions against: “grant[ing] relief merely because [the district court] disagrees with the precedent from another district court.” Nader, slip op. at 22. Here, the Second District acknowledges its disagreement with another district court, using that disagreement as its sole basis for granting second-tier certiorari review. See Bowers, 23 So. 3d at 771 (“We recognize that by relying on [Ferrer v. State, 785 So. 2d 709 (Fla. 4th DCA 2001)], the circuit court applied existing precedent from another district. Nevertheless, we grant certiorari relief on the basis that Ferrer misapplied the fellow officer rule and should be rejected. See Dep’t of Highway Safety & Motor Vehicles v. Nader, 4 So. 3d 705 (Fla. 2d DCA 2009) (emphasis supplied). This case, like Nader, “will destabilize Florida’s delicate judicial ladder, opening the flood gates of second appeals to our already overworked and overburdened district courts of appeal as described by those appellate courts.” Nader, slip op. at 29 (Lewis, J., dissenting).
Don’t get me wrong. I agree with the overall result of Bowers: that the fellow officer rule should not be used to circumvent hearsay rules at suppression hearings where the basis for the initial traffic stop is at issue (as opposed to probable cause for the subsequent arrest). However, I feel just as strongly that the rules of procedure should not be disregarded by any court for mere political reasons.
Nader v. Florida Dep’t of Highway Safety and Motor Vehicles, No. SC09-1533, the opinion to which Justice Lewis refers, was issued the same day as Bowers, and has important implications for lawyers who handle appeals. In Nader, the Court answered two certified questions:
1. DOES A LAW ENFORCEMENT OFFICER‟S REQUEST THAT A DRIVER SUBMIT TO A BREATH, BLOOD, OR URINE TEST, UNDER CIRCUMSTANCES IN WHICH THE BREATH-ALCOHOL TEST IS THE ONLY REQUIRED TEST, VIOLATE THE IMPLIED CONSENT PROVISIONS OF SECTION 316.1932(1)(A)(1)(a) SUCH THAT THE DEPARTMENT MAY NOT SUSPEND THE DRIVER‟S LICENSE FOR REFUSING TO TAKE ANY TEST?
2. MAY A DISTRICT COURT GRANT COMMON LAW CERTIORARI RELIEF FROM A CIRCUIT COURT’S OPINION REVIEWING AN ADMINISTRATIVE ORDER WHEN THE CIRCUIT COURT APPLIED PRECEDENT FROM ANOTHER DISTRICT COURT BUT THE REVIEWING DISTRICT COURT CONCLUDES THAT THE PRECEDENT MISINTERPRETS CLEARLY ESTABLISHED STATUTORY LAW?
Nader, SC09-1533, slip op. at pg. 2. The Court answered the first question in the negative (ie, the Court held that the Department properly suspended Nader’s driver’s license because there was no violation of the implied consent law), but answered the second question in the affirmative (ie, the Court held that the Second DCA properly granted certiorari review).
If you handle a lot of DUI cases or administrative suspension cases, you should take a few minutes to read the first portion of Nader, as the Court recites many of the statutory provisions relating to the implied consent warning, as well as the administrative suspension of a driver’s license in refusal cases. However, appellate attorneys, both criminal and civil, should read the second half of Nader, as the Court discusses various aspects of certiorari review. As with the Nader opinion, Justice Lewis again criticizes the majority with a strong dissent on the issue of second-tier certiorari review.
For those of you who are waiting on the Florida Supreme Court to issue an opinion in the case involving the constitutionality of Florida section 893.13 (the drug possession statute), I just wanted to let you know that the Court has yet to issue an opinion. Oral argument was held in December, and still no word. The docket for State v. Adkins, No. SC11- 1878 can be viewed here.
Now that the Mardi Gras season is over, the federal criminal defense and immigration defense lawyers in Palm Beach, Broward, and Miami Dade county may want to take a few moments moment to read a newly issued opinion from the United States Supreme Court: Kawashima v. Holder, No. 10-577. On February 21, 2012, the Court affirmed the deportation and removal of Akio and Fusako Kawashima, natives and citizens of Japan who were lawful permanent residents of the United States since June 21, 1984. According to the opinion, in 1997, Mr. Kawashima pleaded guilty to one count of willfully making and subscribing a false tax return in violation of 26 U.S.C. § 7206(1), and Mrs. Kawashima pleaded guilty to one count of aiding and assisting in the preparation of a false tax return in violation of 26 U.S.C. § 7206(2). After framing the issue as “whether aliens who commit certain federal tax crimes are subject to deportation as aliens who have been convicted of an aggravated felony,” the Court held that “violations of 26 U. S. C. §§ 7206(1) and (2) are crimes ‘involv[ing] fraud or deceit’ under 8 U.S.C. § 1101(a)(43)(M)(i) and are therefore aggravated felonies as that term is defined in the Immigration and Nationality Act, 8 U. S. C. § 1101 et seq., when the loss to the Government exceeds $10,000.”
Justice Thomas delivered the majority opinion of the Court, and was joined by the other conservative members of the Court, Chief Justice Roberts, and Justices Scalia, Kennedy, Alito, and Sotomayor. Although the majority opinion is a rather short 11 pages, be warned: the writing is a dry, statutory construction discussion of several tax and immigration sections, including 26 U.S.C. §§ 7206(1), (2), and 8 U.S.C. §§ 1101(a)(43)(M)(i) and 1227(a)(2)(A)(iii) of the Immigration and Nationality Act.
As with most Supreme Court opinions, the dissenting opinion is once again the most interesting part to read. While Justices Ginsburg, Breyer, and Kagan also undertake a statutory-construction discussion, the critical tone in which the dissenters point out the flaws of the majority opinion cannot be mistaken. Ordinarily, I would summarize the points in the dissenting opinion for you, but in this case, Justice Ginsburg’s writing is so persuasive, that I think that you really should take a few moments and read it for yourself.
On a side note, I am interested to see how much media attention, if any, the Kawashima opinion will receive. Immigration is always a hot-button issue in American politics, but I suspect that this case will attract little, if any attention. After all, it’s a boring tax and immigration case, right? If any of you are basketball fans out there, you probably know of some of the racial comments that have been made about the New York Knicks’ Jeremy Lin. And if you read the article that I read on CNN this morning, you might also know that for some reason, racism against Asians appears to be more socially acceptable than racism against other minority groups. Saturday Night Live addressed that topic nicely, as you’ll see if you read the article yourself. I suspect that in light of today’s culture, nobody will care much at all about the fact that Mr. and Mrs. Kawashima are going to be deported because they are Asian. I hope that’s not the case. I hope that people instead think about what really happened here: Mr. and Mrs. Kawashima, lawful permanent residents of the U.S. since 1984, made the unfortunate choice of filing false tax returns. And now they are being deported?
It’s been a busy morning, but before the day gets away from me, I wanted to pass along that congratulations are in order for the Southern District’s Judge Adalberto Jordan for his Senate confirmation to serve on the United States Court of Appeals for the Eleventh Circuit. According to the Miami Herald, Judge Jordan is the first Cuban-born Judge to sit on the 11th Circuit. If you have a stomach for the political wrangling behind his confirmation, you can read an article from the Miami Herald here.
I’ve previously discussed some of the difficulties convicted felons face when trying to restore their civil rights and reintegrate into their community. (See my previous post here. Well, as a member of the Florida Association of Criminal Defense Lawyers, I’ve received notice that there is going to be an important hearing in Miami, Florida, on February 16 and 17, 2012. If you are a South Florida criminal defense lawyer who does any work in the area of restoration of civil rights, you may wish to attend.
The press release I received states,
National Task Force to Hold Hearings in Miami
On the Restoration of Rights and Status After Conviction
Washington, DC (February 14, 2012) – With more than 65 million Americans possessing a criminal record, the consequences of conviction – specific legal barriers, generalized discrimination, and social stigma – have become more numerous and severe, more public, and more permanent. These restrictions affect jobs and licenses, housing, public benefits, judicial rights, parental rights, interstate travel, and even volunteer opportunities. Moreover, the legal mechanisms relied on in the past to restore rights and status for formerly convicted individuals have atrophied or become ineffective, with the result that a significant percentage of the American public is permanently consigned to second class citizenship.
The National Association of Criminal Defense Lawyers’ (NACDL) Task Force on Restoration of Rights and Status After Conviction will hold its second hearing to undertake an inquiry into how legal mechanisms for relief from the collateral consequences of conviction are actually working, in state and federal systems on Thursday and Friday, February 16-17, 2012, in Miami, Florida.
The Task Force’s inaugural hearing was held in Chicago, Illinois, Oct. 20 and 21, 2011. Witnesses shared a range of personal and professional experiences, perspectives and expertise on the important practical issues surrounding barriers to re-entry and the collateral consequences of a criminal record. Witnesses included Judge Paul Biebel, Presiding Judge, Cook County Circuit Court, Criminal Division, U.S. Congressman Danny Davis and John Schomberg, General Counsel, Office of the Governor of Illinois. Illinois has been working diligently to ensure that clemency applications are reviewed as timely as possible, creating the possibility for individuals to live without the burden of a conviction on their record.
The approximately two dozen witnesses in Miami will include representatives from community organizations, defense lawyers, researchers, civil rights advocates and treatment providers, as well as invidivudals with convictions who themselves confronted barriers to re-entry. The Task Force is particularly interested in Florida due to their recent changes in clemency rules and subsequent backlog of applications.
A schedule and witness list follows this message.
WHEN: Thursday, February 16, from 9 a.m. to 5:30 p.m. and Friday, Friday, February 17, 9:30 a.m. to 2:15 p.m.
WHERE: Carlton Fields
100 S.E. Second Street
Suite 4200 (42nd Floor)
Miami, FL 33131-2113
If you are interested in attending part or all of these hearings, please contact NACDL’s State Legislative Affairs Director Angelyn C. Frazer at firstname.lastname@example.org or at (202) 213-9302 (mobile) by the close of business on Wednesday Feb. 15, 2012.
Contact: Ivan Dominguez, Deputy Director of Public Affairs & Communications, (202) 465-7662 or email@example.com.
It’s a beautiful day here in Jupiter, Florida, so I thought I’d pass along a few notes about some criminal appeals opinions issued by my local appellate court, the Fourth DCA.
First, South Florida’s criminal defense lawyers who have videos from the scene allegedly depicting their client may wish to review the case of Charles v. State, 4D09-4191, as the 4th DCA reversed Charles’ conviction and remanded the case for a new trial based on an error with regard to the video. According to the opinion, the State elicited testimony, over objection, from the Detective that he believed that Charles was the person depicted on video. However, the Fourth held that the Detective’s testimony improperly invaded the province of the jury because he admitted that he was originally unable to identify the person in the video. In finding that reversible error occurred, the Fourth relied on Ruffin v. State, 549 So. 2d 250 (Fla. 5th DCA 1989).
Second, in McLaughlin v. State, 4D10-2255, the Court reversed and remanded for a new trial because the trial court allowed the prosecutor to erect a physical shield in the courtroom, presumably so that the child victims would not have to see McLaughlin when they testified. The Court found that the shield was not authorized by any statute, and that it’s presence compromised McLaughlin’s right to a fair trial. The Fourth stated that rather than allowing the use of the shield, the trial court should have instead inquired as to whether the victims would suffer emotional or mental harm due to the presence of McLaughlin, and if so, allowed the child victims to testify outside the courtroom via closed circuit television.
Finally, in Hernandez v. State, 4D10-4186, the Court got a little creative with its writing! The case involves something pretty routine, the trial court’s denial of a motion to suppress. After an ordinary legal discussion of the facts and applicable standards, the Court closed with the following:
But one must wonder why, after twice telling the police to get a warrant, the defendant would invite law enforcement on his property, put the dog away, and kick down his own door to allow law enforcement to have a good look at his indoor marijuana grow room—providing sufficient probable cause for a search warrant. As Arsenio Hall used to say, “Things that make you go Hmmm!”
Arsenio Hall? “Hmmm!?”
Florida’s criminal defense lawyers may wish to take a moment to review the latest round of Standard Jury Instruction amendments issued by the Florida Supreme Court for criminal cases. Dated February 9, 2012, the amended instructions address questions by the jury (number 2.13); Williams rule evidence (number 3.8(a)); the rules for deliberation (number 3.10); trespass (numbers 13.3, 13.4); organized fraud (number 14.8); contributing to the dependency of a child-impregnating a person under age 16 by a person 21 or older (number 16.4(a)); and, promoting or performing obscene acts (number 24.6).
The criminal defense attorneys of South Florida may wish to take particular note of the changes to the boating under the influence instructions. Instructions numbered 28.14, 28.15, 28.16, and 28.17, which address general boating under the influence, boating under the influence causing property damage or injury, felony boating under the influence, and boating under the influence causing serious bodily injury, have all been amended.
I suppose the criminal defense attorneys in the Florida panhandle may want to take a look at the amended instruction on taking wild deer or turkey with a gun and light (number 29.14). I can’t say I’ve ever even heard of that one!
Happy Valentine’s Day, South Florida!
This is one of the craziest things I have seen a Judge do in a long time. And I can say, after having been a prosecutor there, that this kind of stuff only happens in Broward County.
I saw the report on CNN HLN this morning, but NBC Miami has the video here. After Joseph Bray was arrested for domestic violence by Plantation Police, he was brought before Judge John “Jay” Hurley for his first appearance. Although bonds are normally entered at first appearance hearings, Judge Hurley deviated from the standard procedures and instead ordered Mr. Bray, in lieu of bond, to buy his wife, Sonja, a card, followed by dinner at Red Lobster and bowling. Judge Hurley thought the order was appropriate because the domestic violence arrest stemmed from the fact that Mr. Bray forgot to wish Sonja a happy birthday, Mr. Bray’s apparent lack of criminal history, and because Sonja, who is heard on tape, said she wanted Mr. Bray to come home.
I am really torn about this. On the one hand, sometimes Judges need to be free to craft sentences or orders to fit the circumstances of criminal cases. And the criminal defense lawyer in me believes that people charged with a crime should not be punished unnecessarily, especially if there are mitigating circumstances. On the other hand, as a woman, I find it unsettling that a Judge would laugh off the whole incident, and think that dinner and bowling would fix this. Ok, I know that the Judge did mention counseling on the tape also, but come on. Can a card, dinner and bowling really make up for the fact that the man’s hands were wrapped around his wife’s neck? Instead of getting cute, I tend to think that the Judge should have just ordered Mr. Bray to post bond like everyone else.
Since my previous post on the United States Supreme Court case of Maples v. Thomas, No. 10-63, I’ve been wondering if we are seeing a kinder, gentler Court, at least in the area of federal petitions for writ of habeas corpus. I think the answer is yes.
If you took a few moments to read Maples, you’re familiar with the Court’s exercise of leniency toward Maples, which is somewhat rare in habeas cases. (As I mentioned in my previous post, habeas petitioners are often penalized for mistakes made by their postconviction attorney). You’d also recall that in Maples, the Court relied heavily on Holland v. Florida, 130 S.Ct. 2549 (2010).
Holland is another case where the Supreme Court also showed leniency toward a federal habeas petitioner. In Holland, the Court held, for the first time, that (1) the one year statute of limitations contained in section 2244(d) (governing the filing of section 2254 federal habeas petitions challenging state court convictions) can be tolled for equitable reasons; and, (2) an attorney’s professional misconduct may, at times, constitute “extraordinary circumstances” to warrant equitable tolling. See Maples, No. 10-63, slip op. at *13 (recalling holding of Holland). Significantly, in Holland, the Court explicitly stated that the analysis employed by the Eleventh Circuit to determine whether an attorney’s misconduct might warrant equitable tolling was “too rigid.” See Holland, 130 S.Ct. at 2549. While the Court didn’t reach the conclusion that the professional misconduct of Holland’s attorney rose to the level of “extraordinary circumstances” sufficient to warrant equitable tolling, the Court did remand the case back to the Eleventh Circuit for such a determination. See Holland, 130 S.Ct. at 2565. The Eleventh Circuit, in turn, remanded the matter back to the District Court for a possible evidentiary hearing on the issue. See Holland v. Florida, 613 F.3d 1053 (11th Cir. 2010). As of the date of this post, the status and disposition of Holland’s case in the District Court is unclear. Westlaw does not show any further published opinions subsequent to the Eleventh Circuit remand at 613 F.3d 1053. However, I suppose if you have time to kill, you could always check PACER for the status of Holland’s case. His case originated locally, in the United States District Court for the Southern District of Florida, and appears to be assigned case number No. 06-20182-CV-PAS (Judge Seitz).
While I have not yet had the time to review the 2,358 opinions which cite to Holland, I think it’s fair to say that Holland may have begun a new era in postconviction litigation. While it’s true that habeas petitioners have long argued that they should not be held accountable for the mistakes of their lawyers, habeas petitioners now have a strong case to point to in support of such argument.
If you are a criminal defense attorney handling drug cases out of Broward County, this report from the Sun Sentinel may be of interest to you. The Broward Inspector General issued a report detailing employee misconduct and gross mismanagement by the Broward Medical Examiner’s Office in connection with the handling and disposal of several thousand pills, including oxycodone and hydrocodone. ME Legal Investigator Supervisor Linda Krivjanik (who was already investigated by BSO and fired) and former Chief Medical Examiner Joshua Perper were both named in the report. Apparently, the lax attitude at the ME’s office was so rampant that even its own employees called the manner in which drugs were stored a “free for all.” The ME’s office is now trying to determine the whereabouts of at least 3,600 pills, including over 2,100 oxycodone and over 150 hydrocodone.