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
Just a note to say that South Florida’s criminal defense lawyers are still in the “wait and see” mode for opinions to issue in two important cases. First is State v. Adkins, SC 11-1878. There, the Florida Supreme Court is considering the constitutionality of Florida’s drug possession statute, section 893.13. According to the Florida Supreme Court docket, the last significant activity was oral argument and the filing of an amicus brief by the Florida Association of Criminal Defense Lawyers (FACDL, for short) last December. If you’d like to read my comments on the oral argument, you can view them here. Some of my other posts on the case can be seen here, here, and here.
Next is Evans v. Tucker, (originally filed as Evans v. McNeil), where the federal appeals court, the United States Court of Appeals for the Eleventh Circuit, may be addressing the constitutionality of Florida’s death penalty scheme. (I say “may” because the parties’ briefs are not publicly available). Although the public can access opinions released by the Court, the Eleventh Circuit court docket is not electronically available to the public, so information on that case is much more limited. And, since a notice of appeal was filed in October of 2011, it may still be several months until an opinion issues. If you care to monitor the Eleventh Circuit’s opinions as they are issued, you can click here. (You can either look for the case style, Evans v. Tucker, or the lower court case number, 08-14402-Civ-JEM). For some of my previous posts on the Evans case, click here and here.
A final note: if you are an attorney who is a member of FACDL, and you’re interested in these cases, you may want to check out an article I wrote in the Winter 2011 edition of the FACDL magazine, Florida Defender. The article is printed at page 34 of Volume 23, No. 3. You can also view it from my website by clicking here. (My article has been reprinted with the permission of the Florida Association of Criminal Defense Lawyers.)
It’s Friday, so I thought I’d post something quick: on October 14, 2011, a notice of appeal was finally filed in Florida’s death penalty case of Evans v. Tucker (previously Evans v. McNeil), No. 08-14402-CIV-JEM. Those of you who read my blog know that this is the case where the Federal Court granted, in part, a petition for habeas corpus based on the finding that Florida’s death penalty scheme is unconstitutional. Now that the notice of appeal has finally been filed, the case is heading to the United States Court of Appeals for the Eleventh Circuit. I’ll be sure to keep you posted.
For any criminal attorneys who have some time on their hands while we wait to see how the Court will rule on the State of Florida’s motion to reconsider, I thought you might like to read the Court’s Order on the petition for writ of habeas corpus. You can find it here. A word of warning: the Order is long. The discussion of the constitutionality of the death penalty scheme runs from pages 78-93.
Meanwhile, according to an article posted in the Miami Herald on June 22, 2011, this is the first time a Court has declared the Florida death penalty scheme unconstitutional. If the Court maintains its ruling, and the State of Florida appeals to the Eleventh Circuit, as Attorney General Pam Bondi has stated will likely be done, such an appeal could set the stage for the case to make its way to the United States Supreme Court.
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?