Tag Archives: Death Penalty

Van Poyck v. State, SC 73662: Florida Supreme Court Order Requiring Prior Counsel to Remain As Counsel And Other Developments

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Florida’s criminal defense and criminal appeals attorneys who are interested in the developments of the Van Poyck death penalty case may want to know that I found the Supreme Court order requiring Van Poyck’s prior counsel to remain on the case.  If you want to read it, click here.  In response to the Order, two of Van Poyck’s previous attorneys have just filed a Motion to Vacate and Alternative Motion for Rehearing of the Supreme Court order.

If you have time and are interested in all the procedural drama, feel free to view the other orders and motions in the case by clicking here.

After Winning a New Trial, Goodman Loses a Lawyer, and Death Row Inmate William Van Poyck Wins A Team of Lawyers

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Well, after winning a new trial (while the case is on appeal, no less) John Goodman lost a key member of his criminal defense team, Robert Black.  For the articles in the Palm Beach Post and Sun Sentinel, click here and here.  Maybe this means that Goodman and the State have reached a plea agreement?

Meanwhile, the Palm Beach Post also reports that there’s quite a bit of legal havoc in the William Van Poyck death penalty case.  Although I have not yet been able to locate the order issued by the Florida Supreme Court, the Court has apparently pulled a surprise move.  Even as Van Poyck’s June execution date approaches, the Court appears to have appointed a team of lawyers from Palm Beach County to represent Van Poyck.  For the article in the Palm Beach Post, click here.

To me, the Van Poyck case highlights just a fraction of what is wrong with Florida’s death penalty.  If the case is still important enough for the court to appoint new lawyers, even at this late stage, why should the Governor be signing the warrant for Van Poyck’s execution?  And why is it that after years of being unable to reach any sort of agreement with regard to amending the death penalty statute so as to render it constitutional, (why bother with that?), the Florida legislature is able to enact legislation that limits the appeals process, thereby actually speeding up the death penalty executions?

Is Speeding Up Appeals Process for Florida’s Death Row Inmates A Good Thing? Senator Joe Negron Thinks So

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Well, the week is practically over and I’ve not had as much time for reading opinions as I like, but I came across an interesting article from the Palm Beach Post that I thought deserved mentioning.  According to the report, Florida Senator Joe Negron is sponsoring the “Timely Justice Act of 2013″ in an effort to speed up the appeals process for death-row inmates.   According to Negron, the bill is “designed to streamline litigation and cut out duplicate or baseless appeals filed by prisoners after the state Supreme Court has upheld a murder conviction and death sentence.”

Any Florida criminal attorney (whether you handle trials or appeals) knows that death row appeals can take years to conclude.  And everyone who’s familiar with the system also knows there will always be baseless appeals filed by certain individuals.  But in my view, to try to legislate the time for the appeals process seems misdirected.  After all, we read stories every day about inmates who are exonerated after spending years on death row.  Why cut off their time for appealing their conviction with another arbitrary deadline?  Instead, the legislature should focus on other things of greater constitutional concern–for example, amending the death penalty statute to require a unanimous recommendation by the jury before the death penalty could be imposed.  As noted in the Palm Beach Post report, Florida is the ONLY state that does not require a unanimous jury recommendation.  Or perhaps the legislature could spend their time on something even more important, like repealing the death penalty altogether.  Isn’t it time Florida joined the other civilized States in the U.S.?

You can view the text of the bill, and other information about the bill (SB 1750), here.

United States v. Hall, No. 11-14698: Eleventh Circuit Reverses 4-Level Enhancment For Fraudulent Use of Identifying Information to Obtain Credit Cards

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I had to do a double-take when I read the opening paragraph of United States v. Erica Hall, No. 11-14698:

Hall pled guilty to conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1349 (Count 1); conspiracy to commit identity theft and access device fraud, in violation of 18 U.S.C. § 371 (Count 2); wrongfully obtaining and transferring individually identifiable health information for personal gain, in violation of 42 U.S.C. § 1320d-6(a)(2) (Count 3).  When imposing Hall’s sentence, the district court applied a four-level enhancement under U.S.S.G. § 2B1.1(b)(2)(B) because it found that the offense involved more than 50 but less than 250 victims.  In objecting to the enhancement, Hall argued that the mere transfer or sale of identifying information unlawfully or without authority does not equate to the actual use of identifying information for a fraudulent purpose.  Therefore, because the conspirators actually used only identifying information for 12 out of 141 individuals to obtain fraudulent credit cards, Hall argued that the two-level enhancement under U.S.S.G. § 2B1.1(b)(2)(A) was more appropriate because it applies to more than 10, but less than 50, victims.  The district court rejected Hall’s argument, but we do not.  Accordingly, we vacate Hall’s sentence and remand for resentencing.

Wow.  Those are words not often found in an Eleventh Circuit opinion.  No doubt that Hall’s appellate counsel and other criminal defense lawyers practicing in the Southern District of Florida will be pleased.

In another case, Norman Mearle Grim, Jr.  v. Fla. Sec’y, Dept. of Corrs., No. 11-11890, the Eleventh Circuit reverted to its usual self and denied a death-row inmate’s habeas petition.  In the opinion, the Court again rejected a constitutional claim based on Ring v. Arizona, 536 U.S. 584 (2002).  In support, the Court pointed to a recently issued decision, Evans v. Sec’y, Fla. Dep’t of Corrs., 699 F.3d 1249, 1264 (11th Cir. 2012), where the Court held that Florida’s death penalty statute is constitutional.  For my previous post on the Evans case, click here.

Eleventh Circuit Issues En Banc Opinion in Wydell Evans v. Sec’y, Dept. of Corrections, No. 10-14920

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The United States Court of Appeals for the Eleventh Circuit has recently released an en banc decision in the habeas appeal of Wydell Evans v. Sec’y, Dept. of Corrections, No. 10-14920.  As far as Eleventh Circuit opinions go, it’s rather long at 72 pages, but considering that it’s an en banc opinion, the 72 pages seems unexpectedly short.  As one familiar with the Eleventh Circuit might expect, the majority opinion affirmed the denial of Evans’ petition for habeas corpus relief.  In so doing, the Court focused its analysis on the prejudice prong of Strickland v. Washington, 466 U.S. 668 (1984), and held that even though Evans’ trial counsel performed only a minimal investigation into mitigating evidence for the penalty phase of the trial, and presented no mitigating evidence to the jury, Evans was not prejudiced because the evidence of mitigation which counsel could have presented was more harmful than helpful.  See Evans v. Sec’y, Dept. of Corrections, Slip op., pgs. 3-37.

Whether you handle criminal defense, habeas petitions, death penalty work, or federal appeals, this opinion might be worth your time to review.  Not only does Judge Jordan’s concurrence contain a good discussion of the standards of review applicable to habeas proceedings, but Judges Wilson and Martin author great dissents.  Judge Wilson’s dissent focuses on the Court’s decision to render the en banc decision at all.  If you handle federal appeals before the Eleventh Circuit, Judge Wilson’s dissent might be valuable the next time you have to draft an opposition to a motion for en banc consideration.  See Evans, Slip op. pgs. 46-49.  Judge Martin’s dissent contains a thought-provoking discussion of the role of defense counsel in death penalty cases.  In short, Judge Martin agrees with the majority that the mitigating evidence that counsel could have presented to the jury would have portrayed Evans in a bad light.  However, Judge Martin notes that the jury was already familiar with Evans’ character flaws, anyway.  And, most importantly, Judge Martin observes: isn’t it the job of death penalty counsel to investigate and present whatever mitigating evidence can be found?  See Evans, Slip op., pgs. 50-72.

Eleventh Circuit Finds Florida’s Death Penalty Statute Constitutional: What Now? Rehearing in Eleventh Circuit, or Petition for Writ of Certiorari to Supremes?

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You may have read my previous post wherein I mentioned that the Eleventh Circuit has finally ruled that Florida’s death penalty statute is constitutional.  See Evans v. Sec‘y, Dept. of Corrections, No. 11-14498 (opinion issued October 23, 2012).  Well, now what can Evans do?

Only Evans and his criminal appeals lawyers know for certain what will happen next, but any appellate attorney knows that Evans generally has 3 options: (1) do nothing; (2) seek rehearing in the court of appeals; or, (3) seek discretionary review in the United States Supreme Court.  If he is going to try to seek rehearing in the Eleventh Circuit or discretionary review in the United States Supreme Court, he’ll have to act quickly.

A motion for rehearing in the Eleventh Circuit (“Petition for Panel Rehearing”) will have to be filed within 14 days after the entry of judgment.  See Fed. R. App. P. 40.  The Federal Rules of Appellate procedure can be found on the website for the Eleventh Circuit by clicking here.

If Evans decides to seek review in the United States Supreme Court, United States Supreme Court Rule 13 provides that a party seeking to file a petition for writ of certiorari will have to file the petition within 90 days after the entry of judgment.   Rule 13.3 further provides that the 90 days begins to run from the date of the entry of the judgment, not the date mandate issues.  If rehearing is sought in the lower appellate court, the 90 days begins to run from the date of the denial of rehearing or, if rehearing is granted, the subsequent entry of judgment.  The Rules of the United States Supreme Court may be viewed here.

Put simply, seeking discretionary review in the United States Supreme Court is a long shot.  For an interesting article on seeking review in the Supreme Court, view an article posted on the Mayer Brown website by clicking here.

And now the next round of waiting begins . . .

Evans v. Sec’y, Dept. of Corrections, No. 11-14498: Eleventh Circuit Holds Florida’s Death Penalty Statute Constitutional

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Florida’s criminal defense and criminal appeals attorneys who follow death penalty jurisprudence may be interested to know that the Eleventh Circuit has finally issued an opinion in Evans v. Sec’y, Dept. of Corrections, No. 11-14498, a case where the United States District Court for the Southern District of Florida found that Florida’s death penalty statute violated Ring v. Arizona,  536 U.S. 584 (2002).  Not surprisingly, the Eleventh Circuit disagreed with the District Court, and reversed the grant of habeas relief on such basis.

In support of its holding that Florida’s death penalty statute does not violate Ring, the Court first noted that the United States Supreme Court has repeatedly held that Florida’s judge-based sentencing system does not violate either the 6th or 8th Amendments.  See Evans, slip op. at pgs. 11-16 (citing Proffitt v. Florida, 428 U.S. 242 (1976); Spaziano v. Florida, 468 U.S. 447 (1984); Hildwin v. Florida, 490 U.S. 638 (1989); and, Porter v. McCollum, 558 U.S. 30, —, 130 S.Ct. 447, 453 (2009).

Second, the Court reasoned that the Florida death penalty statute differs from the Arizona death penalty statute at issue in Ring because a Florida jury renders an advisory verdict addressing the existence of aggravating circumstances, and because, inter alia, the sentencing judge must give the jury’s sentencing verdict “great weight” pursuant to Tedder v. State, 322 So. 2d 908, 910 (Fla. 1975).  In discussing the differences between the Florida and Arizona death penalty statutes, the Eleventh Circuit also noted that in Ring and several other opinions, the United States Supreme Court has hinted that Florida’s death penalty scheme might pass constitutional muster.  Evans, slip op. at pgs. 17-25 (citing Walton v. Arizona, 497 U.S. 639 (1990); Jones v. United States, 526 U.S. 227, 250–51 (1999); and Hildwin, 490 U.S. 638).

Finally, the Eleventh Circuit noted that although some United States Supreme Court jurisprudence may cast doubt on the constitutionality of Florida’s death penalty scheme, only the United States Supreme Court has the authority overrule its own decisions.  See Evans, slip op., at pgs. 26-27 (collecting cases).  In short, because Hildwin, 490 U.S. 638, is directly on point, and has never been overruled, the Eleventh Circuit stated that it is obligated to follow Hildwin.  See Evans, slip op., pg. 30 (citing Hildwin, 490 U.S. at 640–41) (considering the procedures prescribed by Fla. Stat. § 921.141 (Supp. 1988) and holding that “the Sixth Amendment does not require that the specific findings authorizing the imposition of the sentence of death be made by the jury.”)

I’ve Been Published . . . But I’m Still Waiting for Opinions on Constitutionality of Florida’s Drug Possession and Death Penalty Statutes

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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.)

Florida Supreme Court Opinions Released October 27, 2011:Jury Instruction Errors, An Evidentiary Hearing on Possible Brady and Giglio Violations, and No More Filings Allowed for a Frequent Filer

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This week has just flown by.  Since I am a bit pressed for time, I decided to make a quick report of a few of the opinions released by the Florida Supreme Court on October 27, 2011.

1.)  The Court reversed six cases based on jury instruction issues.  In each of the cases, the Court remanded the cases back to the District Courts of Appeal for consideration and application of the recent opinion of State v. Montgomery, 39 So. 3d 252 (Fla. 2010) (holding that because Montgomery, who had been convicted of second-degree murder, was entitled to an accurate jury instruction on the necessarily lesser included offense of manslaughter by act, the use of the then-standard jury instruction on manslaughter by act constituted fundamental reversible error because it erroneously required the jury to find that Montgomery intentionally caused the death of the victim).  The cases reversed include Zeigler v. State, No. SC09-2082, Valdes-Pino v. State, No. SC10-63, Burgos v. State, No. SC10-78, Bonilla v. State, No. SC10-141, Solano v. State, No. SC10-1350, and Francis v. State, No. SC10-1881.

2.) In Mungin v. State, No. SC09-2018, a death penalty case, the Court reversed a trial court’s order which had summarily denied a successive motion for postconviction relief.  In a 22 page opinion, the Court remanded Mungin’s Giglio and Brady claims back to the postconviction court for an evidentiary hearing.  Although the opinion is fact driven, it is still worth reading for the Court’s discussion and application of Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972).

3.) Finally, in James v. Tucker, No. SC11-745, the Court banned Mr. James from filing any more pleadings attacking his conviction unless they are signed by a member in good standing of the Florida Bar.  Apparently, Mr. James has become what some criminal defense attorneys refer to as a “frequent filer,” and the Court said “enough is enough.”

Notice of Appeal is Filed in Death Penalty Case of Evans v. McNeil, No. 08-14402-CIV-JEM

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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.