You might recall that I previously noted that our own Judge Robin Rosenbaum had been nominated by President Obama to serve as a United States District Court Judge for the Southern District of Florida. Well, I am happy to report that Judge Rosenbaum was overwhelmingly confirmed by the US Senate today. You can read a couple of reports here and here. I am sure that many of my fellow South Florida attorneys, criminal and civil alike, wish her the best of luck. Now we will just have to wait and see who will apply to fill her vacant Magistrate Judge spot.
If you are a Florida attorney, you should be aware that today, the Florida Supreme Court sua sponte issued a corrected Order governing e-mail service. Pursuant to the Sua Sponte Order, the Court changed the mandatory date for e-mail service in the civil, probate, small claims, and family law divisions of the trial courts, as well as in all appellate cases, from July 1, 2012, to September 1, 2012. To read the collection of orders, click here, here, and here.
The Sun Sentinel ran a good story today that I wanted to pass along to other criminal defense and criminal appellate lawyers in South Florida. Martin James Malone fled to Ecuador before a jury convicted him of federal drug charges in 1990. According to the story, Malone made good use of his time while on the lam, acting as a “medicine, man” contractor, and overall good samaritan. His story is a great example of how people can make a change for the better after getting into trouble. Since even the prosecutor reportedly noted that Malone played a very small role in the 1989 cocaine-importing conspiracy, let’s hope that Judge Zloch’s sentencing will be fair.
Also today, the United States Supreme Court issued an opinion in Miller v. Alabama, No. 10-9646, where it held that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on “cruel and unusual punishments.’” In its rationale, the Court relied heavily on two other juvenile cases, one of which hits close to home for Florida’s criminal defense lawyers: Roper v. Simmons, 543 U. S. 551, 560, (2005) (invalidating death penalty for all juvenile offenders under 18), and Graham v. Florida, 560 U. S. –, (2010) (holding that life without parole violates the Eighth Amendment when imposed on juvenile nonhomicide offenders). As you’re reading the majority opinion, be sure not to skip the footnotes, as several point out the flaws in the dissenter’s analysis. I especially like footnotes 6, 8, and 10.
It’s not exactly CM/ECF yet, but it’s great to see that the Florida Supreme Court has finally issued two new Administrative Orders implementing e-filing on a rolling basis, and requiring mandatory e-service.
Administrative Order number SC11-399 provides that e-filing will become effective and mandatory in the civil, probate, small claims, and family law divisions of the trial courts, as well as for appeals to the circuit courts in these categories of cases, on April 1, 2013, at 12:01 a.m. Next, e-filing will become effective and mandatory for criminal, traffic, and juvenile courts, as well as as for appeals to the circuit court in these categories of cases, on October 1, 2013, at 12:01 a.m. Finally, for appeals to the District Courts of Appeal and Florida Supreme Court, e-filing will become effective and mandatory on October 1, 2012, at 12:01 a.m. However, the trial court clerks will not be required to electronically transmit the record on appeal until January 1, 2013, at 12:01 a.m. Self-represented parties and self-represented nonparties can be excused from the requirements of the Rule.
Administrative Order number SC10-2101 provides, generally, that all documents required or permitted to be served on another party must be served by e-mail. There are exceptions to the Rule for attorneys who demonstrate that he or she has no e-mail account and lacks access to the Internet at the lawyer’s office. The new rule takes effect on July 1, 2012.
Since I’ve not had the chance to read through many Supreme Court and Eleventh Circuit opinions lately, I thought I’d try to catch up. A word of caution: if you are a South Florida criminal defense or criminal appeals lawyer needing some good news, you won’t find it here.
The Eleventh Circuit has been busy handing down opinions at a pretty good clip. In Booker v. Secretary, Florida Dept. of Corrections, No. 10-14966, the Court affirmed the denial of a 2254 petition for habeas relief. In so doing, the Court held that the state trial court’s refusal to instruct the jury on Booker’s eligibility for parole was neither contrary to, nor an unreasonable application of, Simmons v. South Carolina, 512 U.S. 154 (1994). In Trepal v. Secretary, Florida Department of Corrections, No. 10-15306, the Court affirmed another denial of a 2254 petition for habeas. Although the opinion is quite long-72 pages-it’s a good one to read if you have some spare time. In addition to the discussion of the standards of Giglio v. United States, 405 U.S. 150 (1972) and Brady v. Maryland, 373 U.S. 83 (1963), the opinion might also make you think twice about what can happen if you’re not nice to your neighbors. In a case that originates from the Southern District of Florida, United States v. Welch, No. 10-14649, the Court examined the voluntariness of a consent to a search, the “fruit of the poisonous tree” doctrine, and whether a Florida conviction for robbery is a “violent felony” for purposes of the Armed Career Criminal Act. (Hint: the consent was voluntarily given, there was no fruit of the poisonous tree, and the Florida conviction for robbery qualifies as a “violent felony.”) My favorite part of the opinion? Footnote 20.
Finally, in Parker v. Matthews, No. 11-845, the United States Supreme Court issued an opinion that reads like a smackdown of the 6th Circuit. A mere 13 pages long, the pointed tone with which the opinion is written leaves no doubt about how wrong the Sixth Circuit’s decision was.
All of Florida’s attorneys–not just criminal trial and appellate attorneys–have been hearing for a while now that several of the Justices on the Florida Supreme Court are under attack. Supreme Court Justices Pariente, Quince, and Lewis are all up for merit retention votes in November 2012. Judges Carole Taylor and Burton Conner from the Fourth District Court of Appeal in West Palm Beach are also up for merit retention votes in November. According to the reports being circulated among the members of the Florida and Palm Beach County Bars, political groups, PACs, have been formed to raise massive amounts of money in anticipation of the November elections. According to the reports, the organizers of the PACs are not based in Florida.
Why all the fuss, you ask? Several years ago, something similar happened in another State (a mid-western State, I believe). A large PAC was formed, and the PAC raised massive amounts of money to run political attack ads against several of the State Supreme Court justices. The justices who were attacked all lost re-election.
Florida’s Supreme Court Justices are in a tough spot. Although they are elected officials, they are precluded from actually going out and running a formal campaign. They are also precluded from saying many things that a traditional candidate would say. In other words, they can be attacked, but cannot fight back. That’s where we come in. If you are Florida lawyer, you know that the merit retention vote is about one question: whether the Justice or Judge should retain his or her judicial position based on his or her ability to render decisions on a fair and impartial basis, not whether you as a lawyer agree with those decisions. As a citizen of the State of Florida, everyone has the responsibility to make an informed choice at the election booths in November. In addition to reading about your local candidates, you should take a few minutes to read about Florida’s merit retention system here.
It’s just been reported that George Zimmerman’s wife has been arrested and charged with perjury in connection with the testimony she gave at Zimmerman’s bond hearing. For the news reports, click here and here. I suspect that many of South Florida’s criminal defense and criminal appeals attorneys would agree that perjury charges are not often pursued because they can be difficult to prove. However, in some cases, criminal perjury charges may be filed as leverage for plea negotiations. Hopefully, the prosecutors have not charged Zimmerman’s wife for the purpose of extracting a plea out of Zimmerman. We’ll just have to wait and see what happens with Mrs. Zimmerman’s case. For a link to Florida’s criminal perjury statutes, click here.
Criminal defense lawyers who accept court appointments to represent the indigent for trial and appeal have long been underpaid. In a recent post, I discussed Florida’s latest legislative maneuver to decrease the amount of pay for court-appointed attorneys yet again. Well, now, the Florida Bar News has published an article discussing how low the pay rates really are, and how it affects the criminal justice system overall. To read the article, click here. Although the article is very informative, it’s too bad it couldn’t have been published while the issue was pending in the Florida legislature.
It’s no secret that Florida Governor Rick Scott and Florida’s Supreme Court haven’t been able to get along. Since he’s taken office, the two branches of Florida’s government have squared off, indirectly, on more than one occasion. Well, it looks like things are heating up now. The latest shot came from the office of the Governor, with Scott basically calling for FDLE to begin an investigation of Justices Pariente, Lewis, and Quince, all of whom are up for merit retention votes this November. You can read more about it here. The story is even making national headlines on the ABC website.
Now, for South Florida’s Federal criminal defense lawyers, trial and appellate alike, I came across an interesting post today that I wanted to share. Apparently, District Judge Altonaga of the Southern District recently granted a new trial in a criminal case after the defense attorney argued that the Government committed a discovery violation by failing to produce e-discovery in a reasonably usable form. According to the post, even though the Federal criminal rules do not have the same requirements as the Federal civil rules with regard to production of e-discovery, there may be a growing trend by the courts to adopt the Federal Civil rule’s standards in criminal cases.
So, I was going to take a few moments to review the latest slip opinions from the United States Supreme Court, but as soon as I clicked on the opinions page, a terrible blood-red background color appeared all over my screen! And to make it even more painful on my eyes, the case names are in a weird, almost glowing, blue color. Is it just me, or is anyone else out there getting a migraine from trying to look at the screen? Can the Court’s Webmaster please change that?