Appellate Law, Criminal Defense, Criminal Appeals & Criminal Appellate Review and Post Conviction Relief in Florida Courts, Federal District Courts and the 11th Circuit for Criminal Attorneys, Criminal Lawyers & Appellate Lawyers
Palm Beach polo magnate John Goodman caught a lucky break- it looks like on Friday, May 3, 2013, Palm Beach Circuit Court Judge Jeffrey Colbath granted Goodman’s motion for new trial based on juror misconduct. Criminal defense and criminal appeals lawyers know that such a break is extremely rare indeed. To read of an article about the defense victory, click here. To read my previous post on Goodman’s motion, click here. I wonder if the State will prosecute the juror for perjury based on his statements given during voir dire . . .
On another note, who knew that Palm Beach County was home to a rehab facility for Hollywood’s rich and famous? According to reports on CNN and WPTV. com, Lindsay Lohan is going to complete her rehab at the Lukens Institute in Palm Beach Gardens. If anyone sees Lindsay around town, be sure to give her a friendly wave!
Ok, I admit that this post is NOT about criminal appeals or criminal defense, but I could not resist passing this along. When I saw this article on the CNN website, I thought “Great. Another article about Florida Governor Scott making Florida look bad again.” Well, after reading the article, it’s not just the Governor making Florida look bad. Can you believe that some law enforcement agencies actually have drones? If you live in Orange County or Miami Dade County, look out!
As I was scrolling through the news this morning, I came across two articles in the Palm Beach Post that I wanted to pass along to the local criminal defense and criminal appeals attorneys out there.
The first article reports that Palm Beach County Circuit Court Judge Karen Miller has stated that she will call back jurors to inquire into allegations that the jurors discussed a criminal case before the evidence was closed, in violation of the court’s instructions. Although the Court has not set a date for the hearing, according to the article, the Judge decided to call the jurors back after a local criminal defense attorney filed an affidavit executed by one of the jurors, wherein the juror indicated that she had a “terrible concern that the verdict that the jury reached was not fair.” The individuals were both found guilty of the 2011 shooting death of a 15-year-old South Bay youth. They have not yet been sentenced.
In the next article (an op-ed piece), the Palm Beach Post notes that one of the jurors from the John Goodman trial recently admitted in a self-published book that his wife had once been arrested on a charge of DUI. Obviously, Goodman’s defense team says it asked all potential jurors if any family members had ever been charged with DUI, and that if they had known of his ex-wife’s arrest they would not have selected him. Armed with that information, John Goodman’s criminal appeals lawyers filed a motion in the Fourth District Court of Appeal case, seeking to have the Court relinquish jurisdiction so as to allow the trial court to consider the issue. The Fourth DCA initially denied Goodman’s motion on March 22, 2013. However, after Goodman filed a Motion for Reconsideration, the Fourth DCA granted the motion, and on April 1, 2013, the Court granted the Motion to Relinquish based on the newly discovered evidence of juror misconduct. The Court’s April 1, 2013, order which can be found on the Fourth DCA docket for case number 4D12-1930, reads as follows:
The motion to reconsider the order denying stay dated March 22, 2013, is denied. The motion for relinquishment based on newly discovered juror misconduct is granted for the defendant to file and present to the trial court a motion based upon the alleged juror misconduct and for the court to allow a juror interview and then to rule on the issue. Such relief is not procedurally barred. See e.g. Marshall v. State, 854 So. 2d 1235, 1242 (Fla. 2003); Davis v. State, 778 So. 2d 1096 (Fla. 4th DCA 2001). Relinquishment is for a period of forty-five days. ORDERED that appellant’s motion filed March 28, 2013, for permission to file a reply to State’s response is hereby granted.
I don’t know about you, but I am glad to see that both Courts have taken the courageous step of inquiring into the serious issue of juror misconduct. Job well done.
The Florida Supreme Court recently issued an opinion adopting the recommendations of the JQC, and disciplined the Judge Shea, a Circuit Court Judge for the Ninth Judicial Circuit. I thought I’d pass this along because if you are criminal defense attorney who has cases pending before Judge Shea, or if you handle criminal appeals of any of Judge Shea’s cases, you should probably be aware of some of his inappropriate behavior (that is, if you’re not already). In the opinion, Judge Shea stipulated to five charges:
[1.] In the summer of 2007, Assistant State Attorney Sarah Freeman was sitting in the jury box with two other attorneys making notes on her pretrial docket while [Judge Shea addressed] a matter that was not hers. When [Judge Shea] observed her shake her head, [Judge Shea] got up out of [his] seat, stood behind [his] chair and screamed loudly at her for what [he] perceived as disrespectful conduct.
[2.] In 2007, during an off-the-record sidebar argument by Assistant State Attorney Camelia Coward regarding a plea to the bench, [Judge Shea] remarked to the opposing attorney, “Do you know what I do when my wife and I disagree? I just let her talk.” [Judge Shea] continued, “I find that it is best just to let her talk until she’s finished.” [Judge Shea] then indicated that, once she is finished, you can do what you want anyway.
[3.] On August 18, 2009, in State [v.] Habeych Case No. 48-2008-CF-12888-0, [Judge Shea] sentenced Mr. Habeych without his attorney present. This was done over his objection. Mr. Habeych was charged with Trafficking in Hydromorphone, which carries a minimum mandatory sentence. [Judge Shea] imposed the mandatory minimum sentence. [Judge Shea] then told [Mr. Habeych’s] father that if he had any questions that he could go upstairs to the courtroom where the defense lawyer was appearing before another judge.
[4.] In State v. Bullock, Case No. 48-2009-CF-8037-0, [Judge Shea] granted a Judgment of Acquittal on one of the counts of an Information alleging Possession of a Firearm by a Convicted Felon. That count had been severed for a separate trial from another count of the Information charging the defendant with Grand Theft of a Motor Vehicle. At the subsequent trial call, on April 12, 2010, when Assistant State Attorney Stephen Brown announced his intention to proceed on the remaining count, [Judge Shea] mistakenly believed the State did not have a good faith basis to proceed on that charge. [Judge Shea] became visibly angry and reprimanded the attorney in open court by saying his duty was to act in an ethical manner and to follow his oath as an attorney rather than merely follow office policy guidelines of the State Attorney’s Office. [Judge Shea] then ordered him into the jury room where [Judge Shea] continued to berate his ethics. To [Judge Shea’s] credit, when [Judge Shea] realized [his] mistake, [Judge Shea] then apologized.
[5.] These repeated actions constitute conduct unbecoming a judicial officer and lack the dignity appropriate to judicial office, with the effect of bringing the judiciary into disrepute.
I think it goes without saying that the Judge’s behavior is unacceptable, and I’m glad to see that he was disciplined. So, what discipline did the Supremes dish out for the Judge? A public reprimand accompanied by letters of apology and continuing mental health treatment.
I’m not sure if you’re following the George Zimmerman case, but I thought I’d share a report I saw. Apparently, his defense team has decided to forego the pre-trial hearing on the Stand Your Ground defense. If you’re a Florida attorney who handles criminal defense work or criminal appeals, then you probably know that the pre-trial hearing isn’t necessarily required. According to the news reports, the defense team has decided to just to go to trial and perhaps raise it there. I suppose it’s a perfectly sound strategy, but for some reason, it just seems more risky to me. What do you think? (To see my latest post on possible amendments to the Stand Your Ground defense, click here).
Being that it’s Wednesday, I though you might need a little laugh. A CNN Money report had a funny list of quotes from none other than Martha Stewart in her latest round of litigation. I can almost see the smirk on her face as I read some of the lines. . . .
Florida’s white collar criminal defense and criminal appeals attorneys might be interested in a bill that’s currently being considered by the Florida House of Representatives. HB 691, which was taken up by the Criminal Justice Subcommittee as of February 20, 2013, adds some new, and very important language (in bold):
(2)(a) Any person who willfully and without authorization fraudulently uses, or possesses with intent to fraudulently use, personal identification information concerning an individual without first obtaining that individual’s consent, commits the offense of fraudulent use of personal identification information, which is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Unless the person flees or another circumstance makes it impracticable, a law enforcement officer shall, before any arrest for an offense under this subsection, afford the person an opportunity to explain his or her possession or use of personal identification information and how the use or possession is not willful and without authorization. A person may not be convicted of an offense under this subsection if the law enforcement officer did not comply with this procedure, or if it appears at trial that the explanation that the person gave is true and, if believed by the officer at the time, would have indicated that there was no violation.
I don’t know about you, but I find that absolute defense language highlighted above very interesting. A similar version of the bill is currently in the Florida Senate (SB 840). Unfortunately, the Senate version does not contain the highlighted language contained in the House version. I guess we’ll just have to wait and see which version of the amendment, if either, passes.
Have any of you read the latest copy of the Florida Bar news (February 15)? The title for one of the articles on the front page reads, “Study Suggests Conflict Attorneys Are Underpaid.” Shocking! (You can check out my previous post showing exactly how underpaid criminal conflict attorneys are by clicking here).
Sarcasm aside, I am hopeful that this article means that there may be some movement on this issue in the Florida legislature in the future. I know, I know, it may be too much to hope for, but you never know . . . Wouldn’t it be great for Florida’s criminal defense and criminal appeals attorneys to be able to earn a realistic fee for accepting appointments in criminal cases again?
Florida’s criminal defense attorneys are probably aware by now that the Florida Bar has adopted the highly debated ethical opinion which prohibits waivers of claims of prosecutorial misconduct and ineffective assistance of counsel in plea bargains. According to the Florida Bar News report, although representatives from the United States Attorneys offices for the Southern, Middle, and Northern Districts of Florida argued against the adoption of the ethical opinion, the Board of Governors adopted the proposed ethical opinion with only a few dissenting votes.
The ethical opinion is a step in the right direction, but how will the opinion will be enforced? For those of you who practice in State court, if your client is offered a plea that contains a waiver of claims of ineffective assistance of counsel or prosecutorial misconduct, perhaps you could bring the new ethical opinion to the prosecutor’s attention. If that fails, you could bring the ethical opinion to the attention of the court.
However, if you practice in Federal court, the ethical opinion may not necessarily change anything. Federal court criminal defense practitioners may know that the Department of Justice does not require that the Assistant United States Attorneys be admitted to their state bar. In other words, AUSAs in the Southern, Middle, and Northern Districts may not necessarily be members of the Florida Bar. If the AUSAs are not members of the Florida Bar, they would not be bound by any of the Florida Bar’s ethical rules. Therefore, unless the U.S. Attorneys in the districts of Florida voluntarily adopt a policy prohibiting plea offers containing waivers of prosecutorial misconduct and ineffective assistance of counsel, Federal court criminal defense practitioners may see little to no change with regard to plea offers. I would hope that the US Attorneys take it upon themselves to change their policies, but, given their opposition to the ethical opinion, I wouldn’t expect it.
Finally, a bit of common sense has reached the Florida legislature. According to the Sun Sentinel and WPTV.com, flashing your headlights to alert other drivers of speedtraps will no longer be illegal. I could hardly believe that it was illegal, until I read this article.
If you’re a criminal defense attorney who handles a lot of traffic ticket cases, be sure to check out Fla. Stat. 316.2397(7), effective January 1, 2013, for the change.
Since it’s the holiday season, news in the criminal appeals arena has been a little slow, but I thought I’d pass along a few items.
First, John Goodman’s appeal is proceeding along, with the State of Florida filing its Answer Brief on December 26, 2012. Although the Answer Brief is not available electronically, you can read a summary of the State’s arguments in the Palm Beach Post by clicking here. The 4th DCA docket for the case, 4D12-1930, can be viewed by clicking here. Although Goodman’s attorneys have requested oral argument, the Court has not yet ruled on the request. From my experience, the 4th DCA does not often grant requests for oral argument. However, perhaps the high-profile nature of the case might influence the Court to grant the request.
Next, Broward County is considering changing its name to Lauderdale County. According to the Sun Sentinel, the goal of the change would be to promote tourism. Would a name change really make that much of a difference?
Finally, the bad news. Wyatt Cenac is leaving the Daily Show with Jon Stewart! To view some of the top Wyatt Cenac moments, click here, here, and here.