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
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?
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!
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.
Sorry for the slow blogging. Between crazy deadlines and holiday events, it’s been hard to find time.
I’ve got 3 things for you. First, the Palm Beach Post reports that changes are in store for the Palm Beach County State Attorney’s Office. For starters, Paul Zacks is out as the Chief Assistant, to be replaced by Alan Johnson. I myself am curious to see whether any of the Assistants who left the office under McAuliffe will return to their old jobs now that Aronberg has been elected. And, like many criminal defense and criminal appeals lawyers out there, I’m also curious to see if Aronberg will allow the prosecutors any more authority to plead out their cases. Only time will tell.
Second, where will Peter Antonacci, the interim State Attorney, go now that Aronberg has been elected, you ask? Why, back to Tallahassee to serve as General Counsel to Governor Scott of course!
Third, for those of you who practice in Federal court, I bet you’d never think you’d see Judge Kozinski this . . . enjoy!
This has been a busy week for the Florida Supreme Court. The day before the election, on November 5, 2012, a Petition for Quo Warranto was filed seeking to have Justices Quince, Lewis, and Pariente disqualified from the ballot. To read the petition in Jones v. Dentzner, No. SC12-2297, click here. On November 8, 2012, the Supreme Court transferred the matter to the Circuit Court of the Second Judicial Circuit (Leon County). For the docket, click here.
On November 6, 2012, the Supreme Court accepted jurisdiction in two cases challenging the constitutionality of red light cameras. See Masone v. City of Aventura, No. SC12-644 and City of Orlando v. Udowychenko, No. SC12-1471. This case may have implications for criminal defense attorneys who handle DUI cases, and for criminal appeals attorneys as well.
Finally, Palm Beach County criminal defense attorneys and prosecutors alike may be interested to know that the JQC has filed formal charges against County Court Judge Barry M. Cohen. To read the petition, click here.
Election day is approaching fast. Palm Beach County criminal defense and criminal appeals attorneys may want to pay close attention to 1 race in particular: the race for Palm Beach County State Attorney. The Palm Beach Post recently published a short article outlining the three candidates, Dave Aronberg (D), Robert Gershman (non-party affiliate), and Dina Keever (R), here.
Recently, I went to a local bar function to hear the 3 candidates speak. Dina Keever actually pulled a no-show. Not very impressive. Dave Aronberg was a good speaker, as always. But I was most surprised by Robert Gershman. He had a lot of good things to say about returning prosecutorial discretion back to the line prosecutors, and he has many years of experience as both a serious criminal defense lawyer and prosecutor here in Palm Beach County. For more information about Robert Gershman, you can visit his campaign website by clicking here. Dave Aronberg’s website can be seen here. Dina Keever’s website can be seen here.
Here is some news that will no doubt make more than one Palm Beach county criminal defense attorney happy. (I know that a few former Palm Beach County prosecutors will probably be happy too!) The Palm Beach Post reports that Michael McAuliffe announced that he will not seek reelection as the Palm Beach County State Attorney because he has been presented with a “compelling opportunity” in the private sector. In his announcement, McAuliffe also stated that he had “achieved the goals [he] outlined at the start of [his] tenure.”
Wow. Must be nice to be able to say that you’ve reached all your goals after being the head of a large government office for only 4 years. McAuliffe was only elected in 2008, and his longtime predecessor, Barry Krischer, served in the same position for 16 years!
In an earlier post, I noted how defendants David Slocum and Emmanuel Paul were requesting that a Palm Beach County Judge reduce their life sentences based on the United States Supreme Court decision of Graham v. Florida, 130 S.Ct. 2011 (2010). Well, it looks like they may have gotten their wishes just in time for the holidays. The Sun Sentinel reports that on December 20, 2011, Judge Garrison reduced Paul’s sentence to 27 years, and Slocum’s to 29 years. If Paul and Slocum receive gain time, they could be out in possibly 6 to 10 years. Let’s hope that when they are released, Paul and Slocum don’t squander what may be their gift of a lifetime.
It’s not every day that a convicted person gets the chance to walk free from prison after being sentenced to life without parole, but that’s exactly what two local criminal Defendants have asked a local court to allow them to do. As reported by both the Sun Sentinel and the Palm Beach Post, defendants David Slocum and Emmanuel Paul argued to Palm Beach County Circuit Judge Edward Garrison that he erred in 1995 when he sentenced the two of them, who were 16 years old at the time, to life in prison for raping an individual named Jenny Clark, a 17 year-old student from Switzerland. At a hearing conducted on Tuesday, November 21, 2011, the court took testimony and listened to argument of counsel. Rather than ruling from the bench, the Court has reset the matter for continued hearings on December 15 and 16, 2011.
Although not named in the article, the case most likely relied on by Defendants Slocum and Paul is Graham v. Florida, 130 S.Ct. 2011 (2010), wherein the United States Supreme Court held that sentencing a juvenile to life imprisonment without parole for a non-homicide offense violates the Eighth Amendment. Interestingly, Graham originated from Florida’s state courts. When Graham was 16, he and several other youths attempted to rob a barbecue restaurant in Jacksonville. Graham and one of his accomplices struck the restaurant manager in the head with a metal bar, but then fled after the manager started yelling. The manager required stitches, and no money was taken. Graham was charged as an adult, and was given a combination of county jail time and probation. Unfortunately for Graham, he was arrested again for two more robberies only six months later. After considering the evidence as to the violations of probation and the new charges, the court ultimately sentenced Graham to life imprisonment. Because Florida abolished its parole system in 2003, Graham was only be eligible for release if he were granted clemency. Graham filed a motion challenging his sentence under the Eighth Amendment, but the trial court denied it. The First DCA affirmed the denial, again finding no violation of the Eighth Amendment. See Graham v. State, 982 So.2d 43 (Fla 1st DCA 2008). The Florida Supreme Court declined review.
Although long, the United States Supreme Court opinion is an interesting read because, like many sentencing opinions, it contains a lot of empirical data from around the country and from other nations. Sadly, the Court noted that of the 123 juvenile nonhomicide offenders serving sentences of life without parole, 77 were serving sentences imposed in Florida. In support of its holding that sentencing a juvenile to life without parole for a non-homicide offense violates the Eighth Amendment, the Court reasoned that (1) because juveniles have lessened culpability they are less deserving of the most severe punishments; (2) life without parole is “the second most severe penalty permitted by law;” (3) juvenile offenders sentenced to life without parole will, on average, serve more years and a greater percentage of their lives in prison than adult offenders; (4) sentencing a juvenile to life without parole for a non-homicide offense lacks “any legitimate penological justification” and is therefore disproportionate to the offense; and, (5) none of the traditional reasons justifying life without parole for adults (deterrence, retribution, rescidivism/incapacitation, and rehabilitation) apply to juveniles who commit non-homicidal offenses. Because sentencing a juvenile who committed a non-homicide offense to life without parole “improperly denies the juvenile offender a chance to demonstrate growth and maturity,” the Court held that States must “give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”
How the States comply with the Graham directive to provide a “realistic opportunity to obtain release” was left open by the Graham opinion. The cases of Slocum and Paul would seem to be a real-time application of Graham.
The Sun Sentinel reports that Palm Beach County Circuit Court Judge Oftedal recently granted a motion to dismiss first degree murder charges that had been filed against a 65 year-old individual named Michael Monahan. Although the Order is not publicly available, the Sun Sentinel reports that Judge Oftedal concluded that the case involved “a clear case of justified force” under Florida’s “Stand your Ground” statute. As a result of the Order, Monahan was released from jail.
While the Court’s Order may not sit well with the family of the victim, the fact remains that the Court followed the procedure which is required by law. For starters, let’s consider what the statute actually says. The Stand Your Ground statute provides,
776.032 Immunity from criminal prosecution and civil action for justifiable use of force.—
(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.
(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.
(3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).
Basically, section 1 of the statute states that if a person is justified in using force under sections 776.012, 776.013, or 776.031, to defend himself or another, his residence, or a member of his family or household, then that person is generally immune from criminal prosecution. So, the issue becomes: who determines whether the force used was justified?
In a previous post, I noted that, pursuant to the Florida Supreme Court case of Dennis v. State, 51 So. 3d 456, 457 (Fla. 2010), courts (that is, Judges) are required to make that determination whenever a defendant files a motion to dismiss in reliance on the Stand Your Ground statute, and that the determination is to be made prior to any trial. The Sun Sentinel report on Michael Monahan’s case shows the practical effect of how the Dennis decision requires courts to handle motions to dismiss filed under the Stand Your Ground Statute. If a court grants the motion to dismiss, the Defendant goes free.
The Florida Supreme Court only issued the Dennis decision in December of 2010. Since the statute can be such a strong weapon in the criminal defense arsenal, I think it’s a pretty safe bet that Florida criminal defense attorneys will continue to file motions to dismiss based on the Stand Your Ground statute in cases where their client’s use of force becomes an issue. Even if a motion to dismiss is denied, the mere filing of the motion should preserve the issue for any appeal down the road.