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
The week’s flown by, but I wanted to mention quickly that in Zacariah Dorsett v. State, No. 4D11-1530, Florida’s 4th District Court of Appeal has reversed a conviction for Leaving the Scene of a Crash Involving Injury, and certified a question of great public importance: “In a prosecution for violation of section 316.027, Florida Statutes (2006), should the standard jury instruction require actual knowledge of the crash?”
Dorsett was charged with Leaving the Scene of a Crash Involving Injury after Dorsett struck a teenager who fell from his skateboard. Unfortunately for both Dorsett and the teen, Dorsett dragged the teen an unstated distance along the road before being stopped by police. At trial, although several witnesses testified as to their views of the accident, Dorsett testified that he was unaware of the crash. The trial court rejected Dorsett’s request for a special jury instruction. On appeal, although the 4th DCA did not fault the trial court for instructing the jury according to the standard instructions, the court reversed, and requested the Florida Supreme Court to specifically “focus on the knowledge requirement as it relates to the accident itself,” in light of a prior decision, State v. Mancuso, 652 So. 2d 370 (Fla. 1995).
Although Dorsett’s conviction has been reversed, the litigation may not be over just yet. Florida’s criminal defense attorneys and criminal appeals attorneys will have to stay tuned to see if the Florida Supreme Court decides to accept jurisdiction.
The Palm Beach Post reports that the teen, now 21 years old, has survived the accident, but requires constant attention from a caregiver.
Just a quick note to mention that in Domville v. State, No. 4D12-556, Florida’s Fourth District Court of Appeal recently held that a Judge who is Facebook friends with the prosecutor should have recused himself. This is an opinion that Florida’s criminal defense and criminal appeals attorneys may want to keep handy. And if you haven’t googled the Judges on your cases to see if they have a Facebook page, you should do so now . . .
Skimming through the news reports today, I came across this article on CNN.com that criminal defense and criminal appeals attorneys might want to read.
According to the article, the U.S. Department of Justice has recently taken the position that only the Government can decide when Guantanamo detainees should have regular access to their attorneys. At issue is whether a 2008 Supreme Court decision, Boumediene v. Bush, gives federal courts the ultimate power to control habeas petitions from enemy combatants in U.S. military custody. While pro bono lawyers argue that they should have regular access to their imprisoned clients, even if there is no active habeas challenge pending in court, or any pending charges, the Justice Department disagrees.
The Justice Department acknowledges that it has already started restricting when Guantanamo prisoners can challenge their detention in the United States District Court for the District of Columbia. However, the Justice Department has proposed even further changes to the current rules governing attorney access. Under the proposed changes, the Navy base Commander at Guantanamo would have sole veto power over attorney access, as well as access to classified material, including information provided directly by the detainees from interrogations. Some chilling words from the Government’s pleadings:
The dispute thus before the Court, though important, is quite narrow . . .The only question presented is whether detainees who have neither current nor impending habeas petitions are entitled to” challenge continued access to counsel. The answer to that question is ‘no.’
If this language is not scary enough, the Justice Department has argued that although it does not seek to restrict lawyers who have an active legal appeal, the rights of detainees shrink once they have filed their first habeas challenge. According to the report, the military wants lawyers to agree to the new conditions in order to have continued access to their clients and to any classified information the military would deem to release. Wow.
The Judge to whom all the Guantamo cases are assigned, Chief Judge Royce Lamberth of will preside over a hearing on the issue on August 17, 2012.
Criminal defense and appeals attorneys will be glad to see a couple of good opinions released by the 4th DCA this week.
The most noteworthy case is probably Bruce v. State, 4D09-2620, where the Court reversed a conviction for 3 counts of involuntary manslaughter because the police obtained Bruce’s confession in violation of his due process rights as guaranteed by the Florida Constitution (article I, section 9). The opinion contains a good discussion of due process rights of criminal suspects under both the United States and Florida Constitutions with regard to interrogations, Miranda, and law enforcement’s duties to notify a suspect that his attorney is at the station and available to speak with him. The lesson of this case: because the Florida Constitution may be construed to provide greater protections to criminal suspects and defendants than the United States Constitution, don’t forget to invoke the Florida Constitution the next time you draft a motion to suppress.
The next case is Petit v. State, 4D09-4253, where, on motion for clarification, the Court affirmed the admission into evidence at trial (1) a witness’ prior testimony which had been given at a bond hearing; and (2) tape recordings of four 911 calls between two witnesses and 911 dispatchers. With regard to the bond hearing testimony, the Court held that the witness’ prior bond hearing testimony was admissible at trial because the witness was unavailable to testify, and because the bond hearing provided Petit with the opportunity for cross examination. Slip op., pgs. 2-8. Next, the Court held that the 911 calls were admissible because they were non-testimonial within the meaning of Crawford v. Washington, 541 U.S. 36 (2004),Davis v. Washington, 547 U.S. 813 (2006), and Michigan v. Bryant, 131 S.Ct. 1143, –U.S.– (2011). Slip op., pgs. 8-11.
Although the case is instructive because it contains a lengthy analysis of Crawford, the opinion appears to help the State more than the defense. This case has potential application to many criminal cases, but domestic violence and battery cases may be the most common. In deciding that the witness’ prior bond hearing testimony was admissible at trial, the Court reasoned that the witness was unavailable. However, the witness was not just unavailable–he was actually refusing to testify. The Court acknowledged as much, but then stated, almost casually, that as long as the State made a “good faith effort” to procure the witness for trial, then that was enough. Slip op., pg. 4 (citing State v. Johnson, 982 So. 2d 672, 681 (Fla. 2008). Based on this part of the opinion, it seems like the State will have no problem going forward with cases that involve reluctant witnesses.
The last opinion, Althouse v. Palm Beach County Sheriff’s Office, 4D10-2221, is a good case for criminal defense attorneys because the Court held that the Sheriff’s Office would be required to pay litigation costs incurred by Althouse as a result of his filing a public records request seeking information as to the recruitment and use of confidential informants. The next time you decide to file a public records request with the Sheriff’s Office, hopefully they will comply in a timely manner. But if they jerk you around like the Sheriff’s Office did to Mr. Althouse, be sure to have this case on hand!
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.
The Sun Sentinel reports that the Florida Department of Law Enforcement will implement new statewide procedures in an effort to increase the reliability of eyewitness identifications which are made based on police lineups. The new procedures were introduced after the Florida Innocence Commission, which was formed by the Florida Supreme Court to examine the issue of wrongful convictions, determined that about 70 percent of wrongful convictions are the result of mistaken identity. Under the new procedures, police are supposed to advise witnesses that the suspect may or may not be in the lineup, and that the witness need not pick anyone. The police are also supposed to refrain from doing anything which would influence the witness, and to document the identification procedure, including the witness’ response and exact words. Finally, the police are supposed to use someone who is not familiar with the case to conduct the lineup. Although the official FDLE report indicates that police agencies are supposed to be in compliance by November 1, 2011, the report does not discuss whether any specific remedies will be available in cases where police agencies either fail to adopt conforming procedures by the November 1 deadline, or fail to follow the proper statewide standards in individual cases.
The State of Florida is not alone. On July 6, 2011, NPR aired a report discussing changes being introduced in the State of Texas.
Prior to FDLE’s announcement, police agencies across the state implemented their own procedures for lineups. Most criminal defense attorneys know how unreliable eyewitness testimony can be. (For an interesting discussion on that subject, you might want to go to NPR to listen to a story that aired on June 20, 2011). However, perhaps with the introduction of the new statewide standards, eyewitness identification based on police lineups will become more reliable.
A report on CNN today states that during trial proceedings on Thursday, June 30, 2011, a Casey Anthony trial spectator decided to give the middle finger to a prosecutor while the prosecutor was at the podium, in open court. Although the prosecutor did not see the middle finger being given because he was at the podium and had his back to the gallery, the spectator’s actions were caught on tape and played on national television for all to see. After Judge Perry was notified of the spectator’s actions, Chief Judge Perry, outside the presence of the jury, called the spectator, Matthew Bartlett, up to the court to address his actions. The Chief Judge questioned Bartlett as to what the middle finger gesture meant, and particularly, what the gesture meant to him. After Bartlett said he did not even know why he made the gesture, he apologized. Apparently not happy with the apology, Chief Judge Perry sentenced Bartlett to 6 days in the Orange County jail, a fine of $400.00, and $223.00 in court costs. Bartlett was handcuffed and escorted to jail by Orange County deputies.
Can the Judge really do that? In a word: YES. Attorneys are well aware that the courtroom is a place that demands the highest levels of respect and decorum. A court’s contempt powers are the means to enforcing the rules of the court, and maintaining proper behavior in a courtroom. While it may be that people who are not attorneys may not be aware of the court’s contempt powers, ignorance of the law is never a defense. And, in this case, ignorance of the law could not possibly be a defense because as noted in the CNN report, there is a sign posted indicating that gestures would not be tolerated. In addition to the sign, on May 4, 2011, Chief Judge Perry signed an Order Establishing Rules Governing Members of the Public, which clearly states that proper decorum was to be expected at all times, and that “[t]here shall be no gestures, facial expressions or the like, suggesting approval or disapproval during the proceedings.”
While a jail sentence may seem harsh at first, closer examination shows that perhaps that’s not the case. True, going to jail for giving the middle finger could be characterized as extreme. However, one cannot simply look at the action and the consequence in a vacuum. The larger picture needs to be taken into account. What we have here is a woman who is on trial, possibly facing the death penalty, for the murder of a little girl. These court proceedings, as do all court proceedings, require respect and solemnity. We also have a Judge who is responsible for balancing the rights of the media and the public to observe the proceedings, against the rights of the accused to a fair trial. Why should the Judge allow the irresponsible actions of one mere spectator inject a possible taint into the entire proceeding? After proceeding for more than 6 weeks, why run the risk of a mistrial because one immature person could not respect the rules of the Court? If the case is mistried, the entire process would have to start all over again, and the work of everyone–jurors, witnesses, attorneys and the Judge– will have been for nothing. In the end, I regret that the sentence had to be imposed, but I believe that to protect the dignity of the proceedings, the authority of the Court, and the efforts of all the players involved, the sentence is appropriate.
In an opinion released on June 29, 2011, the Fourth DCA reversed a sentence which the Court found to be the product of judicial vindictiveness. In Jerome Vardaman v. State, 4D08-2603, the Court reversed two 30 year sentences imposed by Circuit Judge Cynthia Imperato of the Seventeenth Judicial Circuit. In 2002, Vardaman pled to carjacking with a firearm, robbery with a firearm, and resisting arrest without violence, and was sentenced as a Youthful Offender to a combination of prison, community control, and probation. In 2008, Vardaman was arrested on new drug charges. During the violation of probation proceedings, Judge Imperato initiated plea discussions with Vardaman. He rejected the Judge’s initial offer of 8 years’ incarceration on Counts I and II, concurrent, with credit for four years, and proceeded to final hearing. After being found guilty of the violation, Judge Imperato sentenced Vardaman to concurrent 30 year terms.
In its analysis, the Court cited Mounds v. State, 849 So. 2d 1170, 1171 (Fla. 4th DCA 2003) and Wilson v. State, 845 So. 2d 142 (Fla. 2003) for the proposition that where there is judicial participation in plea negotiations, followed by a harsher sentence, a totality of the circumstances approach must be used to determine if the sentence is the product of vindictiveness. If the defendant demonstrates vindictiveness, the burden shifts to the State to rebut the showing. The Court also recalled that other factors to consider include (1) whether the trial judge initiated the plea discussions in violation of State v. Warner, 762 So. 2d 507, 513 (Fla. 2000); (2) whether the judge, through comments on the record, appeared to have departed from the role of impartial arbiter by either urging the defendant to accept the plea, or by stating that the sentence imposed would hinge on future procedural choices, such as exercising the right to trial; (3) the disparity between the plea offer and ultimate sentence imposed; and, (4) any lack of facts on the record to explain the reason for the increased sentence. Because Vardaman established each of the foregoing factors, the Fourth DCA reversed his sentence and remanded the matter for resentencing before a different Judge.
The lesson criminal attorneys can take from this case is obvious: be cautious when the trial judge participates in plea negotiations. If the ultimate sentence imposed is more harsh than what was initially offered, and if the above factors are present, there may be a good basis to appeal the sentence based on judicial vindictiveness.
On May 17, 2011, formal ethics charges were filed against First DCA Judge Paul M. Hawkes for his involvement in the construction of the First DCA’s new courthouse in Tallahassee. The Notice of Formal Charges filed by the Judicial Qualifications Commission can be viewed on the Florida Supreme Court’s website. Attorneys, both criminal and non-criminal, are aware that many courthouses around the State are suffering from a lack of funding. For example, the Fourth DCA in West Palm Beach is closing the doors of its law library on July 1, 2011, and for the last several years, the Broward County Courthouse has been suffering from repeated instances of flooding.
However, despite such tough economic times, the First DCA managed to construct what has been called the “Taj Mahal” of courthouses. An October 2010 audit of the new courthouse revealed that unnamed Judges at the First DCA took control of the construction process, and added millions onto the budget with custom fixtures, etched glass, African mahogany, and granite. According to the audit, the cost for the new courthouse was initially budgeted at $31 million. By the time all the extras were added, the cost was increased to $48 million.
According to the Notice of Formal Charges, Judge Hawkes allegedly (1) bullied several individuals involved with the construction of the courthouse; (2) persuaded the other members of the Court to spend budgetary surplus on the purchase of 45 new desks for law clerks just so the desks would match the rest of the “color palette” in the courthouse; (3) tried to coerce the Court Marshal to change his account about a trip that Judge Hawkes was reportedly planning to the site of one of the courthouse furniture manufacturers; (4) took over the budgeting functions of the Court Marshal’s office, and manipulated the Court’s budget; (5) misled the other Judges on the Court as to what he was doing with the budget; and, (6) forced the Deputy Marshal to destroy a cabinet full of public documents relating to the courthouse construction. In a charge unrelated to the new courthouse, Judge Hawkes allegedly directed one of his own lawclerks to work on a case that was being handled by his son before the Florida Supreme Court.
Although Judge Hawkes has yet to file a formal response to the charges, a Response and Objection filed by the JQC today shows that Judge Hawkes has requested the JQC to provide information relating to the charges. It will be interesting to see how this turns out!