HISTORY OF LITIGATION AND ADVOCACY

 

 

INTRODUCTION

 

        The following pages highlight some of the major issues and cases the Public Defender’s Office (PD-11) has worked on, and our responses to challenges facing us. PD-11’s Appellate Division handled most of these cases. 

 

 

TABLE OF CONTENTS

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PUBLIC DEFENDERS ARE  INDEPENDENT CONSTITUTIONAL OFFICERS. 2

Acting on Behalf of Clients. 2

Acting to Preserve Independence and Financial Integrity  5

Fighting Chronic Underfunding and Excessive Caseloads  5

Excessive Caseload 2008-2009 Challenge

Fighting Contempt Charges. 8

Acting to Preserve the Integrity of the Criminal Justice System   9

Improvement of the Court Appointment System—Creation of “The Wheel”. 9

Halting the State’s Falsification of Criminal Records. 10

 

PROTECTING CHILDREN’S RIGHTS. 11

A History of Reforms in the Treatment of Children. 11

Children in Chains: Challenging the Indiscriminate. 12 Practice of Shackling in Florida Courtrooms. 12

Children Must Be Given Detention Hearings  Within 24 Hours of Being Taken into Custody. 15

Enforcing Compliance with Juvenile Statutory Detention Requirements. 15

The Death of a Child in Detention: Omar Paisley Investigation  16

Pahokee Facility Litigation. 17

Attack on Registration of Children As Sex Offenders  18

 

PROTECTING INDIGENT PARENTS  FROM “DEBTOR’S PRISON”  19

 

PROTECTING THE RIGHTS OF  PERSONS WITH MENTAL HEALTH ISSUES. 21

Challenging the State’s Failure to Treat Mentally Incompetent Clients. 21

Mental Heath Representation Extends  Through Various Stages of The Criminal Process. 22

 

PROTECTING RIGHTS OF PRETRIAL DETAINEES. 24

Requiring Judicial Review of Probable Cause for Continued Detention. 24

Enforcing the Constitutional Right to Reasonable Bail  26

The Free Trade Association of the Americas Summit: Challenging Arrests Targeting Free Speech. 27

Affording Due Process to Persons Arrested  Solely on Intrastate, Immigration, and Military Holds. 27

Challenging Illegal Immigration Holds Extending Past 48 Hours  28

 

PROTECTING THE RIGHT TO COUNSEL.. 28

Challenging the Trial Court’s  Practice of Limiting the Appointment of Counsel. 29

Ensuring the Right to Effective Assistance of Counsel  31

Ineffective Trial Counsel 31

Ineffective Assistance and The Right To An Appeal 33

 

LITIGATING FORENSIC EVIDENCE.. 34

Exposing the Unreliability of Radar. 34

Challenging the Reliability of Fingerprint Evidence  35

Challenging the Intoxilyzer Breath-Alcohol Testing Machine  36

 

CHALLENGING DISCRIMINATORY PRACTICES. 37

Litigating the Racially Discriminatory  Application of Habitual Offender Sentencing Laws. 38

Challenging Discriminatory Practices in Jury Selection  38

 

CHALLENGING SEXUAL OFFENDER LAWS. 40

Challenging Indefinite Commitment of “Sexually Violent Predators”. 40

Challenging Registration & Public Notification Requirements  42

 

DEATH PENALTY LITIGATION.. 44

Challenging the Death Penalty for Juveniles. 44

Challenging the Death Penalty for Mentally Retarded Persons  44

Challenging the Implementation of the Death Penalty Reform Act of 2000. 45

Assisting the Innocence Project. 46

Challenging the Application of the Death Penalty in Individual Cases. 46

 

EXTRAORDINARY WRIT PRACTICE— Rectifying Serious Injustices and Illegal Actions  That Cannot Be Solved in the Normal Appeals Process. 52

Challenging Judges Improperly Presiding Over Cases  53

Protecting Integrity of Criminal Justice System.. 53

Challenges to Lack of Jurisdiction. 54

Challenges to Double Jeopardy, Speedy Trial, and Illegal Sentences. 54

 

PROTECTING FIRST AMENDMENT FREEDOMS. 55

 

PROTECTING FOURTH AMENDMENT RIGHTS. 58

 

RIGHT TO A FAIR TRIAL.. 61

Conduct Of Trial. 61

Defendant’s Right To Present A Defense. 62

Prosecutorial Misconduct. 65

Evidentiary Issues. 66

Postconviction Cases. 69

 

 

 PUBLIC DEFENDERS ARE
INDEPENDENT CONSTITUTIONAL OFFICERS

 

Acting on Behalf of Clients

 

        A frequent question asked a public defender is, “How can you litigate against the state if you are paid by the state?” The simple answer is that a lawyer paid by someone other than the client has an ethical obligation to the client, not to the party paying for the attorney’s services. Rules Regulating the Florida Bar 4-1.8(6). A public defender is constitutionally obligated to act independently of the government and oppose it in adversary litigation. Polk County v. Dodson, 454 U.S. 312 (1981). In this circuit, PD-11 has vigorously represented the interests of clients, not the state. Florida’s Attorney General’s Office, however, has fought to narrowly limit our representation of clients. This has resulted in litigation over the boundaries of our authority, as indicated by the following four cases.
 

        In State ex rel. Smith v. Brummer, 426 So. 2d 532 (Fla. 1982), PD-11 filed a federal class action suit to rectify constitutional violations in regard to involuntary civil commitment proceedings. The attorney general instituted a quo warranto proceeding in the Florida Supreme Court to challenge the public defender’s authority to pursue the class action. The Supreme Court did not allow the particular class action because the class included persons that were not indigent and whom the public defender did not previously represent. Nevertheless, the Supreme Court reaffirmed the public defender’s authority to continue to represent clients in federal court on an individual basis, and the public defender’s essential role of acting independently of the government. Id. 533.
 

        In another case brought by the same Attorney General against the same Public Defender, State ex rel. Smith v. Brummer, 443 So. 2d 957 (Fla. 1984), PD-11 accepted appointments by a federal district court to represent former clients in federal habeas proceedings. The attorney general filed a quo warranto petition in the Florida Supreme Court to vacate the appointments. The Supreme Court held that the public defender’s statutory authority was limited to appointments by state, not federal, courts. It noted, though, that its decision pertained only to federal court appointments, and did not relate to the public defender’s authority to continue its representation of a state-appointed client in federal court.

       

        In 1996, a state agency proposed rules governing the certification of Domestic Violence treatment programs. PD-11 filed a challenge to these rules before the Department of Administrative Hearings, on the grounds that the proposed rules compelled speech, in violation of the First Amendment, and promoted gender discrimination, in violation of the Equal Protection Clause. The attorney general filed a quo warranto petition in the Florida Supreme Court, to contest our authority to challenge these rules. The petition was denied as moot because we withdrew our challenge to the rules. State ex rel. Butterworth v. Brummer, 680 So. 2d 424 (Fla. 1996).

        More recently, PD-11 filed a petition for state postconviction relief on behalf of a client serving a life sentence when a new witness came forward who would exonerate him. The appellate court ruled that we could not continue representing our client in postconviction matters without the trial court reappointing our office for that specific purpose. Mann v. State, 937 So. 2d 722 (Fla. 3d DCA 2006). PD-11 disagrees with that decision and believes that it interferes with the professional responsibility of an attorney to continue pursuing relief in a case where the merits of the case justify it. PD-11 has sought review of the Mann decision in the United States Supreme Court.  Return to Top

 

Acting to Preserve Independence and Financial Integrity

 

Fighting Chronic Underfunding and Excessive Caseloads

 

        Chronic legislative underfunding caused a tremendous increase in PD-11’s appellate backlog in the late 1970’s. Due to the huge backlog, many clients were denied their right to timely appeals. In response, to ensure effective and timely representation of our clients, PD-11 sought to withdraw from excessive appeals in favor of private attorneys appointed by the court. Dade County v. Baker, 362 So. 2d 151(Fla. 3d DCA 1978), quashed sub nom Escambia County v. Behr, 384 So. 2d 147 (Fla. 1980). The appellate court would not permit withdrawal, but the Florida Supreme Court held that a trial court has discretion to appoint a public defender’s office or private counsel on appeal.

        PD-11’s litigation was the impetus for Miami-Dade County to agree, in 1980, to compensate private counsel to handle some of the appeals. Attorneys were screened so that only qualified appellate counsel participated. Although the compensation was minimal, the program was very effective in reducing the backlog to manageable levels. We also joined with the Dade County Bar Association in the mid-1980’s to implement an emergency, volunteer-appellate attorney program to further assist in handling the backlog.
 
        PD-11 has filed amicus briefs on behalf of other Florida public defenders who faced excessive caseloads due to legislative underfunding. In In re Order on Prosecution of Criminal Appeals by the Tenth Judicial Circuit Public Defender, 561 So. 2d 1130, 1132, 1136 (Fla. 1990), the Supreme Court recognized that “the woefully inadequate funding of the public defenders’ offices, despite repeated appeals to the legislature for assistance” was “a statewide concern,” and chided the legislature to “live up to its responsibilities and appropriate an adequate amount” to fund the public defender offices. The appellate court litigation left a number of significant issues untouched, and in response to our suggestions as amicus, the Supreme Court addressed those issues and ruled in a favorable way.
 
        PD-11, on behalf of the Florida Public Defender Association (FPDA), has pressed for courts to recognize the professional independence of public defenders to manage their own caseloads, free of judicial intrusion. PD-11 advanced this position in In re Certification of Conflict in Motions to Withdraw Filed by Public Defender of Tenth Judicial Circuit, 636 So. 2d 18, 22 (Fla. 1994), in which the Supreme Court held that, although an appellate court may make an objective inquiry to confirm the factual basis for a motion to withdraw due to excessive caseload, the court should not “attempt to interfere in the management of the Public Defender’s office, or attempt to instruct the Public Defender on how best to conduct his affairs.” Justice Harding concurred: “The public defender is a constitutional officer. Art. V, §18, Fla. Const. The public defender is charged not only with representing indigent defendants, but also in managing an office, directing personnel, and administering a budget. ... [Public defenders] should be accorded great independence in making the decisions to carry out their charge . . . Courts should be reluctant to get into the micromanagement of a public defender’s office.” Id. at 23.
 
        PD-11 also has had to litigate excessive juvenile caseloads. In 1992, we filed motions to withdraw and to appoint outside counsel. These motions were granted in all of the juvenile divisions, leading to negotiations in which Miami-Dade County agreed to fund additional attorney positions for PD-11 to represent children in the delinquency system.
 
        Beginning on July 1, 2004, expenses that formerly were paid by the county are now paid from state budgets given to the court system, the state attorney, and the public defender. Soon after these changes, the public defender joined with the state attorney in challenging the trial court’s practice of ordering expert witness reports and then ordering the public defender and state attorney to pay the costs. The appellate court agreed that the trial court should pay the costs as “the party who requests the appointment of the expert must pay for the expert.” Office of State Attorney for Eleventh Judicial Circuit v. Polites, 904 So. 2d 527, 532 (Fla. 3d DCA 2005).
 
        PD-11 has made a long-term effort at the state and federal levels to get loan repayment assistance for its attorneys. PD-11 is pushing for legislative action, through the John R. Justice Prosecutors and Defenders Incentive Act of 2007, to try to increase the retention rate. We are urging congressional members to fund a loan repayment program for law school graduates who elect to work for our office. We have had no success at the state level, but in 2007, the bill passed both houses in Congress.
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Fighting Contempt Charges

 

        The assistant public defenders in PD-11 are zealous advocates for their clients. In the few instances over the past three decades when a judge has charged one of our lawyers with contempt, PD-11 has supported these lawyers and solicited pro bono representation for them by highly regarded attorneys. Vizzi v. State, 501 So. 2d 613 (Fla. 3d DCA 1986); Thaxton v. State, 525 So. 2d 1009 (Fla. 3d DCA 1988); Smith v. State, 954 So. 2d 1191 (Fla. 3d DCA 2007).
 

        Another example is when an assistant public defender filed an appellate brief one day past a due date, both he and Public Defender Bennett Brummer were ordered to appear before the appellate court to answer a contempt charge. Chesterfield Smith, Esq., a renowned attorney and founder of Holland & Knight, assisted pro bono in their successful defense.   Return to Top
 

Acting to Preserve the Integrity of the Criminal Justice System

   

Improvement of the Court Appointment System—Creation of “The Wheel”

 

        Prior to mid-1992, the court appointment system for criminal cases in the Eleventh Judicial Circuit of Florida was controlled by judges. Several judges distributed these court appointments at their whim to only a small number of private attorneys who would pay kickbacks in return for additional appointments. This practice resulted in federal prosecutions and convictions of several private lawyers and judges in “Operation Court Broom.” Numerous instances of fraudulent billing were also uncovered.
 

        As a consequence of the scandal, a committee headed by a prominent private attorney recommended the creation of a new court appointment system to be run by PD-11, without any judicial involvement. The new system came to be called “The Wheel,” because attorneys were assigned from a rotating computer-operated registry. “The Wheel” opened participation in the criminal justice system to 500 lawyers. Steps were taken to ensure that quality representation was provided to indigent defendants by court-appointed counsel. Participating attorneys were screened by a peer committee for bar and trial experience, and they were required to meet relevant continuing legal education requirements. Attorneys who failed to provide effective assistance to their clients or failed to demonstrate a satisfactory level of professionalism were subject to discipline, including removal from the system. Finally, fees earned were subject to peer review for reasonableness by a panel of representatives from PD-11, the County Attorney and the FACDL.
 

        PD-11 operated “The Wheel” from 1992 until 2004. During that period, 500 attorneys participated and 5,000 court appointments were assigned yearly. By contrast with its predecessor system that was abandoned in disgrace in 1992, “The Wheel” was operated scandal-free, while providing higher quality representation and saving millions in taxpayer dollars.   Return to Top  

 

Halting the State’s Falsification of Criminal Records

 

        In November 2006, The Miami Herald revealed that the state attorney’s office, in conjunction with the clerk’s office, had been falsifying the criminal records of defendants who had agreed to cooperate with the state. Dan Christensen & Patrick Danner, Bogus Dockets Shield Informants, The Miami Herald, Nov. 18, 2006, at A1. Shortly thereafter, the state attorney sought rules of procedure to legalize this behavior. PD-11, acting through the Florida Public Defender Association, filed comments and argued in the Supreme Court of Florida, and worked through the rules committees to create procedures that will ensure the integrity of court files, while not revealing the identities of confidential informants. In re Amendments to Florida Rule of Judicial Admin. 2.420-Sealing of Court Records and Dockets, 954 So. 2d 16 (Fla. 2007) (sending issue back to rules committees for further review).   Return to Top

 

 

PROTECTING CHILDREN’S RIGHTS

 

A History of Reforms in the Treatment of Children

 

        In the early 1980s, PD-11 filed a class action lawsuit against then Department of Health and Rehabilitative Services (HRS) and Dade County Public Schools (DCPS) for overcrowding and lack of educational services at the Juvenile Detention Center. DCPS agreed to create a school in the detention center, and the complaint was voluntarily dismissed. HRS also expanded the size of the detention center to create more beds and services.

        In 1982, PD-11 applied for and received a federal grant to create the Right to Treatment Unit in the Juvenile Division. This unit consisted of social workers whose primary functions were to evaluate the developmental and mental health needs of juvenile clients and to ensure adequate and proper treatment. Services continued, funded from PD-11 funds when the grant expired.

        In 1990, in M.E. v. Chiles, Case No. 90-1008-CIV-MOORE, a class action suit filed in federal district court, PD-11 worked closely with Legal Services of Greater Miami to identify delinquent children committed to state custody whose mental health needs were not being met.

         In 1991, PD-11 worked to ensure Dade County Public Schools complied with the Individuals with Disabilities in Education Act when dealing with the special educational needs of detained and committed children. This involved negotiations with the Dade County Public School’s attorney office and civil rights compliance office.

        In 1998, PD-11 applied for and received federal funds to create the Juvenile Alternative Sentencing Project. In this project, social workers and attorneys specialized in advocating for juvenile sanctions for juvenile clients transferred into the adult system. This project has continued, funded by PD-11 after the federal funding expired. 
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Children in Chains: Challenging the Indiscriminate

Practice of Shackling in Florida Courtrooms

 

 Indiscriminate shackling of children in courts was an all too common Florida and nationwide practice. In many Florida counties, shackling had been going on since the 1980’s. In Miami, it started in the early 1990’s. Children were treated as enemy combatants in court, dressed in bright orange or brown jumpsuits, wearing metal handcuffs, a belly chain connected to the handcuffs, and metal leg shackles. Unlike jailed adult defendants, securely detained children were chained and shackled in the courtroom regardless of age, size, gender or alleged offense, without a finding of dangerousness or risk of flight. Pregnant girls and children with epilepsy had been shackled, all in the name of courtroom security. Shackling was not limited to delinquency cases. Even the detained “cross-over” children (those with a delinquency offense who also had a dependency case because a parent abused, neglected or abandoned the child) were brought to dependency court hearings in chains and shackles to face the parent who was accused of abusing, neglecting or abandoning the child.

Florida’s blanket shackling practice was not authorized by statute, administrative or court rule, or Department of Juvenile Justice regulations. At the Miami-Dade Public Defender’s Office (PD-11), we knew that previous challenges to indiscriminate shackling in Florida had failed. Despite that, PD-11 formulated a broad-based legal challenge. With help from the National Juvenile Defender Center and expertise from the medical, psychological, therapeutic jurisprudence, and international law fields, PD-11 filed hundreds of motions to unchain the children. We notified the media and worked with editorial boards. We also filed legislation, and secured support from the faith community, The Florida Bar, the Miami-Dade County Commission, and two statewide child advocacy organizations–Florida’s Children First and The Children’s Campaign.

In September 2006, a courageous juvenile court judge, William Johnson, made the first individualized findings and children began to appear before him unchained, unshackled. Soon after, the other three juvenile judges followed suit. PD-11’s success instigated other defender offices throughout Florida and other states to join the challenge. PD-11 has supported and guided their efforts.

The move to end indiscriminate shackling initiated by PD-11 gained support outside the courtroom. The Florida Bar Board of Governor’s unanimously supported the Legal Needs of Children Committee’s effort to eliminate indiscriminate shackling. Florida’s Juvenile Rules Committee proposed a rule that would strictly limit the use of restraints in juvenile court. Surprisingly, despite gaining wide support, in almost all Florida juvenile courtrooms, other than in Miami-Dade County, children still appeared in chains.

Statewide shackling reform was finally achieved when the Florida Supreme Court adopted the proposed court rule effective January 1, 2010. Under the new rule shackling would be allowed only if the judge finds it necessary to prevent physical harm to the child or others; the child has a history of disruptive behavior; there is “founded belief” the child is a flight risk; and there are no less restrictive alternatives, such as the presence of law-enforcement officers.

In Miami-Dade County, 10 years after the first child was unshackled, more than 30,000 detained children have appeared in court, and few have been determined to be a flight or safety risk to justify shackling. We have not had courtroom escapes or injuries. Despite seeing a high number of detained children in court each day, our judges dispense justice one-child-at-a-time, without additional courtroom personnel.

To view the motions, appendices, photographs, news articles and editorials, please visit our website www.pdmiami.com/unchainthechildren.htm
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Children Must Be Given Detention Hearings
Within 24 Hours of Being Taken into Custody

   

        Approximately 100 children per month were not receiving detention hearings within 24 hours of their being taken into custody, contrary to Florida law. Some children were held by the arresting agency for 24 hours before they were even taken to the Juvenile Assessment Center for processing. PD-11 filed motions daily for several weeks requesting that these children be brought before the courts for an immediate hearing or immediately released. After PD-11 filed eight emergency writs, the appellate court, in D.M. v. Dobuler, 947 So. 2d 504 (Fla. 3d DCA 2006), ruled that all children must receive a detention hearing within 24 hours. Now, all arrested children are afforded prompt detention hearings.   Return to Top

 

Enforcing Compliance with Juvenile Statutory Detention Requirements

 

        PD-11 files numerous writs each year to ensure that judges do not detain children in violation of statutory requirements. Since 2000, the appellate court has granted more than thirty writs of habeas corpus filed by PD-11 attorneys. These writs challenged court orders to have children detained in secure detention pending trial, probation violation hearings, and placement into a commitment program. In each case, the appellate court ordered the child’s release from secure detention as the statutory detention requirements were not satisfied.   Return to Top

 

The Death of a Child in Detention: Omar Paisley Investigation

 

        Omar Paisley was a 17-year old boy with one arrest in his life—due to a fight with another boy. In exchange for not having his case sent to adult court, Omar pled guilty in juvenile court. Omar was at the Juvenile Detention Center when he died an inexcusable death of a ruptured appendix after weeping and begging for medical attention for three days. He died June 9, 2003, in a plastic chair, outside his room, in front of twenty other children who witnessed the pain and the callous lack of treatment, before Emergency Medical Treatment was called. 
 

        The Department of Juvenile Justice (DJJ) and local police were ready to close out Omar’s death without any further action. Omar had been our client. Immediately following his death, PD-11 interviewed each eyewitness, preserving their accounts before they were transferred. This was accomplished despite DJJ’s efforts to deny normal attorney access to information. Ultimately, these accounts went to the Grand Jury, the State Attorney’s Office and the lawyer for the family of Omar Paisley. PD-11 inspected the log book entries for the critical three days prior to Omar’s death, preserving the log information for evidence. We demanded grief counseling for all the child witnesses. Public Defender Bennett Brummer personally went to the facility and interviewed children. He met with the highest officials of DJJ, demanding unrestricted attorney access, repaired phone lines and medical accountability.
 
        Mr. Brummer was the first public official to call for a Grand Jury Investigation. PD-11 submitted dozens of questions concerning the confinement conditions of the Juvenile Detention Center to the Grand Jury which issued a scathing report, saying: “We are appalled at the utter lack of humanity demonstrated by many of the detention workers charged with the safety and care of our youth.” PD-11 cooperated with the State Attorney’s investigation into criminal neglect, which led to the indictment of two nurses. Fourteen detention workers were fired, the Secretary and Deputy Secretary took leave of the department, and the state awarded damages to the family of Omar Paisley. Importantly, Omar Paisley’s death led to a remarkable overhaul of the department and positive detention reforms. 
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Pahokee Facility Litigation

 

        In 1997, the Pahokee Facility, originally designed as a 350-bed prison, was transferred from the Department of Corrections to the Department of Juvenile Justice (DJJ). The prison was re-labeled a juvenile delinquency moderate-risk program, placing it on the same level as a halfway house. Of the 350 children housed in Pahokee, 40 were from Miami-Dade. PD-11 immediately began receiving alarming complaints from our clients housed at Pahokee. PD-11 attorneys made several trips to the facility to investigate and collect evidence of neglect, verbal and physical abuse, bug-ridden food, isolated despairing children with almost no home contact, and an overall prison atmosphere. PD-11 filed motions in the trial court claiming that Pahokee was not a moderate-risk program and that moderate-risk children ought to be removed. The judge agreed with us, calling the facility “a prison in all but name.” DJJ appealed, claiming only DJJ could define what is a moderate-risk program. DJJ ultimately won the legal battle, State, Department of Juvenile Justice v. E.R., 724 So. 2d 129 (Fla. 3d DCA 1998), but the Pahokee Facility abuses were exposed. DJJ canceled its contract with the Pahokee vendor and ceased sending moderate-risk children to the facility. The facility is now called the Sago Palm Youth Development Center and is designated as a high risk program.   Return to Top

 

Attack on Registration of Children As Sex Offenders

 

        Some of the biggest challenges facing PD-11 today arise from recent amendments to Florida’s “Sexual Offender” law. Effective July 1, 2007, children 14 years of age and older who are adjudicated delinquent for committing sexual battery and certain “lewd or lascivious” acts against other children are subject to a lifetime “Sexual Offender” registration requirement. Their photographs and personal information will be disseminated to various agencies and individuals throughout the state, and will be posted on the Florida Department of Law Enforcement website for world-wide viewing. This registration requirement applies even to first-time offenders. 
 
        Experts agree that the new law will impact low-risk teenagers who were never headed toward becoming adult sex offenders. The terrible stigma of the “Sexual Offender” registration requirement will undoubtedly foster peer and community rejection, isolation, and increased anger, and will make it difficult for these children to stay in the mainstream of society. In view of this result—which is diametrically opposite the benevolent, rehabilitative ideal and strict confidentiality otherwise underlying the juvenile justice system in Florida—PD-11 believes that children charged with sex offenses should be afforded the same due process protections that adult sex offenders are given. PD-11 will be litigating the issue of whether the constitution requires jury trials for children charged with sex offenses, an issue of first impression in this state, as well as other issues that will undoubtedly arise during this first year of the new law’s implementation.
 

        In 2007, PD-11, under the leadership of Chief Assistant Public Defender Carlos Martinez, has developed Juvenile Justice CPR (Charting a Path to Redemption), a project that proposes reforms to Florida’s juvenile justice system. Carlos Martinez is also serving on Governor Crist’s newly created Blueprint Commission on Juvenile Justice which will formulate needed juvenile justice reforms. To learn more about these projects, visit our website at www.pdmiami.com/cpr Return to Top

 

 

PROTECTING INDIGENT PARENTS
FROM “DEBTOR’S PRISON”

 

        In the mid-1990’s, a specialized collection court began jailing unrepresented poor people for failing to pay child support even though they had no means to pay. PD-11 successfully filed numerous habeas petitions to end these illegal jail sentences. However, our mandamus petition filed with the appellate court in a systemic attempt to rectify the situation was rejected, Smith v. Rivkind, 659 So. 2d 282 (Fla. 3d DCA 1995), and so the practice of illegally jailing poor people continued, as did PD-11’s practice of filing many habeas petitions to secure their release.  

 

        Finally, PD-11’s efforts resulted in the appellate court taking action. It put an end to the institutional practice while sharply criticizing the trial judges involved. In Garcia v. Manning, 717 So. 2d 59, 60 n.3 (Fla. 3d DCA 1998), the support court was reprimanded for being “less than faithful to the letter of the law” and for engaging in “a pattern of either purposeful misapplication or, at best, willful ignorance of the law” prohibiting the deprivation of liberty absent evidence of a parent’s present ability to pay. In Clark v. Manning, 721 So. 2d 793, 795 (Fla. 3d DCA 1998), the appellate court described as “abhorrent” the practice of jailing persons for failing to pay a court-ordered amount the person is incapable of paying. The court called debtor’s prisons the “most repugnant of institutions” and cautioned that enforcing child support obligations must not be “perverted” in such a way as to resurrect such prisons. 

 

        Since then, we have seen only a few cases where poor people were illegally jailed due to an inability to pay child support. Each time, PD-11 has succeeded in obtaining habeas relief.   Return to Top

 

 

PROTECTING THE RIGHTS OF
PERSONS WITH MENTAL HEALTH ISSUES

 

Challenging the State’s Failure to Treat Mentally Incompetent Clients

 

        In 2006, scores of PD-11’s clients who had been determined to be mentally incompetent were being warehoused for months under barbaric conditions in the psychiatric ward of the Miami-Dade County Jail. Although state law requires transfer to a forensic hospital within 15 days after a determination of incompetency, the state was refusing to comply, citing a lack of money or available beds.

        PD-11 filed more than 30 mandamus petitions on behalf of these clients, supported by affidavits from our expert witnesses which established that the state’s refusal to hospitalize our mentally ill clients was causing them to further deteriorate, and that these practices violated international law regarding the treatment of sick detainees. In Hadi v. Cordero, 955 So. 2d 17 (Fla. 3d DCA 2006), the court ultimately held that, notwithstanding the state’s claim of inability to comply with its statutory duty to treat our clients, it was required to do so under state law. Working with a new, more cooperative governor’s office, we were able to more promptly remedy this situation. The state legislature in special session approved $50 million for additional forensic beds. Our mentally ill clients are now being transferred to forensic hospitals within the statutory time limits. 
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Mental Heath Representation Extends
Through Various Stages of The Criminal Process

 

        PD-11 protects the rights of mentally ill clients before and after they are incarcerated. In Brown v. Kearney, 778 So. 2d 541 (Fla. 3d DCA 2001), the appellate court held that a trial court cannot order involuntary hospitalization for a defendant awaiting trial who does not meet the criteria for commitment, and that it must explore less restrictive mental health treatment alternatives. Our appeal in E.F. v. State, 889 So. 2d 135 (Fla. 3d DCA 2004), applied the standard of “clear and convincing evidence” before a person in state prison can be involuntarily committed to a mental health facility.
 
        This office’s work on behalf of its mentally ill clients continues even when clients are found not guilty by reason of insanity or when charges are dismissed. In Johnson v. Feder, 485 So. 2d 409 (Fla. 1986), Mr. Johnson was found not guilty by reason of insanity on two separate murder charges. A few years later, he sought a hearing to challenge his involuntary hospitalization. The trial court denied a hearing because hospital medical staff recommended continuing hospitalization. The Florida Supreme Court held that Mr. Johnson had a right under Florida’s statutes and rules of criminal procedure to a judicial hearing, regardless of the recommendation of hospital medical staff. Conversely, when criminal charges are dismissed due to the unlikeliness that a defendant will regain mental competency, PD-11 has successfully argued that the decision whether to release our former clients rested exclusively with the hospital since there were no pending criminal charges. State v. Heidrick, 707 So. 2d 1165 (Fla. 3d DCA 1998) (en banc).

        PD-11 continues to represent our clients even after their cases are dismissed to ensure that they are no longer treated as criminals. PD-11 represented a man who has been mentally retarded since he contracted meningitis shortly after his birth. He was charged with a crime stemming from a fight over allowance money in a group home. Because of his mental condition, he could never be brought to trial. After the statutorily-prescribed length of time, the criminal charges were dismissed, but he nevertheless remained in a state institution.

        Although the narrow issue in Everette v. Florida Dept. Of Children and Families, 961 So. 2d 270 (Fla. 2007), dealt with who would pay to transport our client, the Florida Supreme Court acknowledged that the greater issue involved whether a person would be treated as though he or she still had criminal charges pending long after all criminal charges were dismissed. The Supreme Court of Florida agreed with PD-11’s position that our client could not continue to be treated like a criminal once all charges were dismissed.
 
        PD-11 also represents mentally ill people on appeal. We represented a man diagnosed with schizophrenia, organic brain damage, and mental retardation who had pled guilty to a crime. He was later sentenced to life in prison for returning home 30 minutes late while on community control. The appellate court invoked the rarely used “manifest injustice” doctrine to grant habeas relief, requiring that our client be resentenced to no more than the seventeen-year cap in his original plea agreement. Adams v. State, 957 So. 2d 1183 (Fla. 3d DCA 2006). 
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PROTECTING RIGHTS OF PRETRIAL DETAINEES

 

Requiring Judicial Review of Probable Cause for Continued Detention
 

        PD-11 was part of the coalition of attorneys that brought the litigation eventually resulting in the United States Supreme Court’s seminal decision in Gerstein v. Pugh, 420 U.S. 103 (1975). Before that litigation, persons arrested languished in jail for weeks based on decisions of the police officers and the state attorney. They were often not brought before a judge who could neutrally evaluate the evidence against them to determine whether probable cause existed. Gerstein v. Pugh, still included in textbooks and discussed in law school classes, held that liberty could not depend on a mere determination by police officers or state attorneys. From that decision until today, a judge has had to determine if the state has enough evidence to hold a person. The state itself cannot make that determination. PD-11 continues to bring actions to enforce this law when it is violated. Blount v. Spears, 758 So. 2d 1287 (Fla. 3d DCA 2000).

        The first appearance or “bond” hearings created by Gerstein v. Pugh usually occur within twenty-four hours after a person is arrested. At this hearing, the court informs the person of the charges against them and sets the conditions for their pretrial release, often a monetary bond. PD-11 continues to bring litigation to ensure this twenty-four hour requirement is met. Vigoreaux v. Manning, 714 So. 2d. 610 (Fla. 3d DCA 1998).

        We have also successfully challenged restrictions that have been placed on a person’s eligibility for release at a first appearance hearing. In State v. Raymond, 906 So. 2d 1045 (Fla. 2005), PD-11 challenged Section 907.041(4)(b), Florida Statutes, prohibiting a person charged with a “dangerous crime” to be granted nonmonetary pretrial release at a first appearance hearing. The Florida Supreme Court agreed that the statute violated the separation of powers clause of the Florida Constitution, because it was a procedural rule that regulated the timing of a person’s eligibility for release on nonmonetary conditions. 
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Enforcing the Constitutional Right to Reasonable Bail
 

        Another important part of the first appearance hearing is the setting of the conditions for pretrial release. The Florida Constitution contains a right to release on reasonable bail except in a few specific situations. PD-11 has been active in enforcing this right on behalf of clients. PD-11 usually litigates these issues through petitions for habeas corpus. Following are a few examples of the types of challenges brought by our office.

  • Refusing to set bonds
     

  • Setting excessively high bonds
       

  • Increasing bonds
       

  • Revoking bonds and nonmonetary pretrial release
       

  • Imposing illegal conditions of pretrial release
       

  • Seizure of cash bond from indigents to pay attorney fees
       

  • Administrative judges improperly interfering with setting of bond
       

  • Challenging the denial of bail pending appeal   Return to Top

 

The Free Trade Association of the Americas Summit:
Challenging Arrests Targeting Free Speech

 

        In November, 2003, a summit of the Free Trade Association of the Americas (FTAA) was held in Miami. PD-11 put together a task force of attorneys from the trial, appellate, and administrative sections. The task force prepared emergency writs to protect the rights of the hundreds of people that were expected to be arrested in the protests against the FTAA. As people were arrested, the writs were put to use to ensure that arrestees were given adequate and timely hearings to determine conditions of release, and to challenge arrests due to lack of probable cause, the setting of excessive bonds, and summary findings of contempt. Out of hundreds of FTAA arrests, only one conviction resulted.   Return to Top


Affording Due Process to Persons Arrested
Solely on Intrastate, Immigration, and Military Holds

 

        Approximately 1,000 persons a year are arrested in Miami-Dade County on solely intrastate, immigration, and military holds. Before June 2007, these individuals never appeared before a judge to be advised about their rights. Some individuals sat in jail for one to two months before they were transferred to the custody of the demanding authority. PD-11 was never notified if an individual was solely arrested on an immigration, military, and/or other Florida county hold. Therefore, an individual was only able to be advised about their rights if they were successful in finding an attorney on their own behalf. Due to our advocacy, beginning in June 2007, all persons arrested in Miami-Dade County now receive a court hearing. Additionally, all indigent persons held in custody receive the advice and/or representation of an attorney.   Return to Top
 

Challenging Illegal Immigration Holds Extending Past 48 Hours
 

        Before PD-11 took action, the Miami-Dade County Corrections and Rehabilitation Department indefinitely detained individuals who had immigration holds, until Immigration and Custom Enforcement came to pick them up from the jails. Many individuals were detained several weeks on immigration holds, and some were detained two months or longer. Federal law, however, only allows Miami-Dade County to detain individuals on an immigration hold for 48 hours excluding Saturdays, Sundays, and holidays. After PD-11 filed numerous habeas petitions, Miami-Dade County agreed to release all individuals on immigration holds as soon as this 48-hour period expires.   Return to Top

 

 

PROTECTING THE RIGHT TO COUNSEL

 

Challenging the Trial Court’s
Practice of Limiting the Appointment of Counsel

 

        At first appearance hearings, the court is required to determine if the person is indigent and, if so, appoint the Public Defender’s Office. At one time, the court was appointing the Public Defender’s Office for everyone at bond hearings, but only for the first appearance hearing. That resulted in indigent persons being unrepresented by counsel in the days immediately following the bond hearing. This time-frame is crucial because witnesses’ memories are fresher and physical evidence can still be preserved.

        In Office of Public Defender v. State, 714 So. 2d. 1083 (Fla. 3d DCA 1998), the appellate court agreed with PD-11 that the court’s practice was illegal and that indigent clients had the right to the uninterrupted assistance of counsel following their first appearance hearing. In Ull v. State, 613 So. 2d 928 (Fla. 3d DCA 1993), PD-11 also successfully argued that, once the Public Defender’s Office is properly appointed in misdemeanor cases, the trial court lacks authority to discharge it on the date of trial by certifying no jail sentence would be sought on a finding of guilt. This decision was later quashed by State v. Ull, 642 So. 2d 721 (Fla. 1994). In doing so, however, the Florida Supreme Court emphasized that the defendant can successfully block the discharge of counsel by showing substantial disadvantage due to loss of counsel. 
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Challenging Uncounseled Plea Practice in Misdemeanor Cases
 

        PD-11 has a long-standing effort to keep persons out of jail who were unrepresented at the time they pled guilty. This situation commonly arose from Driving Under the Influence cases, where the court would call multiple defendants before it, issue orders of no imprisonment saying the defendants will not be put in jail, and encourage these now uncounseled defendants to plead guilty in exchange for the minimum mandatory sentences. These persons are usually willing to accept these pleas because they did not have the skills to defend themselves, and the plea offer did not involve any time in jail. These pleas did include, however, a period of probation. Statistically, a large percentage of these people will violate the conditions of their probation, at which point the court sentences them to jail despite the order of no imprisonment it previously issued. In Tur v. State, 797 So. 2d 4 (Fla. 3d DCA 2001), the appellate court agreed with PD-11’s position that such incarcerations were illegal. 
 

        Recently, PD-11 has also been successful in challenging recidivist sentencing under the habitual misdemeanor offender statute where the prior convictions were based upon uncounseled guilty pleas. 

 
        A related issue was the court’s practice of issuing an order of no imprisonment, while holding an indigent person in jail on a monetary bond the person could not afford. That left the citizen in jail pending a trial without a lawyer and with no way to defend the case. The court knew that these people would plead guilty as soon as the case was heard because they did not have the skill to represent themselves. The court also knew that these people would have to be released from jail as soon as the plea was entered because of the order of no imprisonment. Therefore, the court would set the case for trial several weeks in the future, depending on how long the judge wanted the person to stay in jail. All of this was to avoid giving poor persons an attorney and a chance to defend themselves. PD-11 challenged this abuse of orders of no imprisonment as illegal, and in Hardy v. State, 776 So. 2d 962 (Fla. 3d DCA 2000), the appellate court agreed with us. Subsequently, PD-11, through the Florida Public Defender Association, sought and obtained from the Supreme Court of Florida a change in the rules of procedure to avoid these abuses of orders of no imprisonment. Amendments to the Florida Rules of Criminal Procedure, 837 So. 2d 924 (Fla. 2002). 
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Ensuring the Right to Effective Assistance of Counsel
 

        When necessary to protect our clients’ rights, PD-11 will raise claims of ineffective assistance of counsel, as the next two cases illustrate.
 

Ineffective Trial Counsel
 

        Ruel Lanier was charged with strong-arm robbery. The victim, whose purse had been stolen, told police the perpetrator was at least six feet tall, weighed over 230 pounds, and had left in a car. Mr. Lanier was a passenger in a car driving through a school parking lot a short distance away when the car was stopped. None of the stolen items were found in the car. Police, who had seen the car before it was stopped, did not see anything being thrown out the windows. Mr. Lanier was five feet nine inches tall and weighed 185 pounds. Nevertheless, the victim identified him as the robber. The driver of the car and a student at the school had given depositions and were ready and willing to testify that Mr. Lanier was there only because the driver was supposed to be picking up the student and had picked Mr. Lanier up along the way, thus explaining his presence in the area. Inexplicably, his privately retained attorney did not call those alibi witnesses to testify at trial.

        Following Mr. Lanier’s conviction and its affirmance on direct appeal, Lanier v. State, 635 So. 2d 26 (Fla. 3d DCA 1994), PD-11 filed a motion for postconviction relief, arguing that trial counsel was ineffective in failing to call the alibi witnesses. That motion was denied, and the appellate court, in an en banc decision, affirmed the denial of relief because it concluded that our office had not shown the result of the proceeding would have been different if the alibi witnesses had been called. Lanier v. State, 709 So. 2d 112 (Fla. 3d DCA 1998).

        PD-11 then petitioned for federal habeas relief and won. (Case No. 99-1275-CIV). The federal district court found that the appellate court misapplied the law, because the constitutional standard required only a reasonable probability that the result would have been different. The federal court further found that the failure to call the alibi witnesses was deficient performance by the trial attorney, and that there was a reasonable probability that Mr. Lanier would have been acquitted if the alibi witnesses had testified.

        The state chose not to retry Mr. Lanier. Finally, eight years after his conviction, he was freed. 
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Ineffective Assistance and The Right To An Appeal
 

        Antonio Perez was represented by a private attorney at trial, and was convicted. His attorney misrepresented to the court that he had filed a notice of appeal, but in fact he had not done so. As a result, Mr. Perez never received a direct appeal.

        PD-11 filed a motion for postconviction relief on behalf of Mr. Perez, claiming that his attorney was ineffective in failing to protect Mr. Perez’s appellate rights. The state trial and appellate courts denied relief, so PD-11 filed a habeas corpus petition in the federal district court, which granted relief and ordered the state to give Mr. Perez a belated appeal of his conviction. Perez v. Wainwright, 440 F. Supp. 1037 (S.D. Fla. 1977).

        The state appealed, and the federal appellate court reversed, finding that the actions of Mr. Perez’s private attorney did not result in fundamental unfairness. Perez v. Wainwright, 594 F. 2d 159 (5th Cir. 1979). PD-11 then went to the United States Supreme Court, which granted our petition for a writ of certiorari and ordered the federal appellate court to reconsider its decision. Perez v. Wainwright, 447 U.S. 932 (1980).

        This time, the federal appellate court granted relief to Mr. Perez, saying that “when a lawyer . . . does not perform his promise to his client that an appeal will be taken, fairness requires that the deceived defendant be granted an out-of-time appeal.” Perez v. Wainwright, 640 F. 2d 596 (5th Cir. 1981), citing Perez, supra, 594 F. 2d at 163. 
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LITIGATING FORENSIC EVIDENCE

 

Exposing the Unreliability of Radar
 

        In 1979, PD-11 was appointed as lead counsel in 80 consolidated cases in which people were charged with operating cars at excessive speeds, based solely on radar devices. We filed motions to exclude the radar results as too unreliable to support the charges.

        Our office presented extensive testimony from numerous highly trained experts in multiple scientific disciplines to establish the inaccuracy of the radar devices. Our evidence included instances in which the radar devices registered roadside houses and trees speeding, and a telephone sitting on an attorney’s desk traveling at over 70 miles per hour.

        PD-11’s motions to exclude the radar results were granted. The court found many errors were caused by inadequacies in the design and manufacture of the radar devices, and poor police training on the use of these devices. PD-11’s work on this case received widespread international news coverage and publicity. 
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Challenging Junk Science
 

 

        As part of PD-11’s continuing effort to eliminate junk science, we won the the landmark capital case of Ramirez v. State, 810 So. 2d 836 (Fla. 2001). A police criminalist testified that he could tell a knife linked to the defendant was the only knife in the world that could have caused the victim’s wounds. He claimed this was a subjective judgment that could not be demonstrated to jurors or checked by outsiders. The Supreme Court of Florida determined: “The procedure is a classic example of the kind of novel ‘scientific’ evidence that Frye was intended to banish—i.e., a subjective, untested, unverifiable identification procedure that purports to be infallible.” The Court reversed the murder conviction, and issued an opinion re-establishing that scientific rigor must be demonstrated before evidence will be admissible in Florida. Id. at 853.   Return to Top


Challenging the Reliability of Fingerprint Evidence
 

        PD-11 has challenged the reliability of fingerprint evidence in State v. Armstrong, 920 So. 2d 769 (Fla. 3d DCA 2006), which involved a burglary where the only evidence linking the defendant to the crime was a partial thumb print. The defense listed Dr. Simon Cole of the University of California at Irvine as an expert witness. Dr. Cole has written an award-winning book on the history of fingerprint evidence, in which he concluded that the reliability of fingerprint evidence had never been scientifically tested, and thus no error rate had ever been established for it. At a Frye hearing, PD-11 argued that where fingerprint examiners routinely testify that they are 100% certain they have a match, the defendant has a right to present his own expert challenging the weight to be given to that testimony. We prevailed in the trial court. However, the state challenged this ruling in the appellate court which held that Dr. Cole’s testimony was not relevant because he would not be testifying about the actual fingerprints admitted. 

        Back in the trial court, however, the case fared better. The assistant public defender’s cross-examination of the fingerprint examiner brought out the unscientific nature of fingerprint “science,” and the jury acquitted. Since Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), courts have been stubbornly resistant to the many challenges to the reliability of fingerprint evidence that have been raised. In this case, at least, a jury was more open-minded than most courts have been. 
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Challenging the Intoxilyzer Breath-Alcohol Testing Machine
 

        Florida law requires a citizen to blow into an Intoxilyzer breath-alcohol testing machine if the arresting officer believes that the person may have been driving under the influence of alcohol. The machine then reports a breath-alcohol number, which the state can later introduce into evidence. These breath-alcohol numbers potentially lead to jail and the loss of a driver’s license. Unlike an expert witness, however, a machine cannot be cross-examined to determine the methodology of arriving at that result. To prepare for trial, defendants must be given the opportunity to examine the machine’s operator manuals, maintenance manuals and engineering schematics, in the hope of uncovering the methodology used to arrive at a breath alcohol reading. 

        In March 2006, PD-11 joined with a consortium of defense attorneys led by two private attorneys, in a motion to compel the state to produce the computer program for this machine. The court found that the state did not have the computer program that produces this number. We are continuing to seek the computer program in the courts by filing subpoenas for the production of the program and witnesses from the manufacturer. 
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CHALLENGING DISCRIMINATORY PRACTICES

 

Litigating the Racially Discriminatory
Application of Habitual Offender Sentencing Laws

 

        PD-11 has challenged Florida’s habitual offender statute’s violation of Florida and federal equal protection guarantees based on the prosecutor’s racially discriminatory application. We studied many thousands of trial files and employed experts in logistic regression analysis to determine whether race was a factor in a prosecutor’s decision to seek a habitualized sentence. Although experts concluded that race was a significant factor in prosecutorial discretion to seek enhanced sentencing generally, this challenge failed due to the absence of proof that a prosecutor intended to employ race as a sentencing factor in any individual case. Miller v. State, 651 So. 2d 138 (Fla. 3d DCA), review denied, 659 So. 2d 1087 (1995).   Return to Top

 
Challenging Discriminatory Practices in Jury Selection
 

        PD-11 successfully argued before the Florida Supreme Court that Hispanics are a cognizable ethnic group for purposes of precluding peremptory challenges solely on the basis of their ethnicity. State v. Alen, 616 So. 2d 452 (Fla. 1993). PD-11 has also successfully argued that the prosecutor’s striking of a Haitian-American juror based on her proficiency in the Creole language was a surrogate for racial and ethnic discrimination. Despio v. State, 895 So. 2d 1124 (Fla. 3d DCA 2005).

        In Dorsey v. State, 868 So. 2d 1192 (Fla. 2003), PD-11 successfully argued that when a party asserts that a prospective juror’s nonverbal behavior (a showing of disinterest, for example) is a reason for its peremptory strike, and the existence of the nonverbal behavior is disputed by opposing counsel, the behavior must be observed by the trial court or otherwise supported by the record for the reason to be considered neutral and genuine. The judge may not simply rely upon counsel’s assertion because he is an officer of the court.

        PD-11 further successfully argued, in Turnbull v. State, 959 So. 2d 275 (Fla. 3d DCA 2006), that the state is not allowed to strike black jurors based upon their responses to the state’s questions concerning racial profiling, where racial profiling is neither brought up by the jurors nor relevant to a defense. The mere term “racial profiling” can engender a visceral response from black jurors, and the state may not seize upon that response as a race neutral or genuine justification for a peremptory strike.

        Finally, in Whitby v. State, 933 So. 2d 557 (Fla. 3d DCA 2006) and Pickett v. State, 922 So. 2d 987 (Fla. 3d DCA 2005), PD-11 successfully challenged the trial court’s failure to conduct an inquiry pursuant to State v. Neil, 457 So. 2d 481 (Fla. 1984 when the opponent of a peremptory strike objects that the strike of a cognizable minority was motivated by discrimination. These cases are now before the Florida Supreme Court on certified questions regarding whether the simple inquiry rule, which requires the trial court to request a neutral reason from the striking party upon proper objection, should revert back to the cumbersome prima facie standard for peremptory jury challenges. 
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CHALLENGING SEXUAL OFFENDER LAWS

 

Challenging Indefinite Commitment of “Sexually Violent Predators”
 

        The public defender also represents persons facing civil commitment as “sexually violent predators” under Chapter 394 of the Florida Statutes. The concept of committing someone after their prison sentence has expired is a new and troubling use of civil commitment laws. These cases have spawned a host of legal issues.

        In some of these cases, the state has filed petitions for commitment, thereby depriving these persons of their liberty, even though the state’s own team charged with making these determinations has not agreed that these persons should be committed. PD-11 opposed this practice and the appellate court ruled that it was illegal. Harden v. State, 932 So. 2d 1152 (Fla. 3d DCA 2006). PD-11 has also litigated pretrial discovery issues caused by the prosecutor’s interference with the team’s decision. State v. Donaldson, 763 So. 2d 1252 (Fla. 3d DCA 2000).

        PD-11 has litigated the question to whom does the statute apply. Ward v. State, 936 So. 2d 1143 (Fla. 3d DCA) rev. granted 939 So. 2d. 96 (Fla. 2006); Washington v. State, 866 So. 2d 725 (Fla. 3d DCA 2004); State v. Siddal, 772 So. 2d 555 (Fla. 3d DCA 2000). PD-11 has maintained that some of these commitments violate plea agreements calling for out-patient sexual offender treatment while on probation. Murray v. Regier, 872 So. 2d 217 (Fla. 2002); Ortega-Mantilla v. State, 898 So. 2d 1164 (Fla. 3d DCA 2005); Acosta v. State, 784 So. 2d 1137 (Fla. 3d DCA 2000); Murray v. Kearney, 770 So. 2d 273 (Fla. 4th DCA 2000).

        These civil commitment cases often involve psychiatrists relying on information from cases or arrests from the distant past. The accuracy of those records, many of which were never subject to cross-examination in court, is a serious problem that PD-11 has litigated vigorously. Pesci v. State, 32 Fla. L. Weekly D1721 (Fla. 3d DCA July 18, 2007), available at 2007 WL 2043423. PD-11 has also challenged the state’s burden of proof in these cases. State v. Bryant, 901 So. 2d 381 (Fla. 3d DCA 2005).

        In specific cases, PD-11 has also challenged the sufficiency of the state’s evidence to meet the constitutional requirements. Donaldson v. State, 888 So. 2d 107 (Fla. 3d DCA 2004). Finally, PD-11 has challenged the adequacy of the standard jury instructions, both in specific cases and when they were promulgated. Standard Jury Instructions-Criminal Cases (99-2), 777 So. 2d 366 (Fla. 2000); Pearson v. State, 888 So. 2d 110 (Fla. 3d DCA 2004); Donaldson v. State, supra
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Challenging Registration & Public Notification Requirements
 

        Recently, people with prior convictions for sexual offenses have been required to register as sexual offenders or sexual predators. PD-11 litigates to remove these labels when they are incorrectly applied. Sanchez v. State, 875 So. 2d 1285 (Fla. 3d DCA 2004); Maceo v. State, 870 So. 2d 852 (Fla. 3d DCA 2003); State v. Colon, 820 So. 2d 420 (Fla. 3d DCA 2002).

        PD-11 has also challenged these statutes on behalf of clients for whom this public branding is unjust. In one of the leading cases, our client was in a club when another man bought a mutual female friend a drink. She drank half of it, and gave the client the rest. The drink was spiked and they both blacked out as they were leaving the club. The other man took them to a hotel room. The police eventually charged both men with the sexual assault, and our client pled guilty and agreed to testify against the man who drugged him and his friend. Under the law, our client was automatically labeled a “sexual predator” even though the victim was never afraid of him, still considered him a friend, and was upset that the state had prosecuted him. We argued that due process required that he receive a hearing to determine whether he was a danger to the community before branding him a “sexual predator.” The appellate court agreed that he should receive a hearing. Espindola v. State, 855 So. 2d 1281 (Fla. 3d DCA 2003). The Supreme Court of Florida later disagreed. Milks v. State, 894 So. 2d 924 (Fla. 2005). In a bitter footnote, our client was deported because of this conviction before he could testify against the man who drugged the drink. Without his testimony, the true perpetrator walked free without any “sexual predator” label.

        PD-11 has continued to raise other constitutional arguments on behalf of persons labeled as sexual predators or offenders. Garcia v. State, 909 So. 2d 971 (Fla. 3d DCA 2005); Reyes v. State, 911 So. 2d 202 (Fla. 3d DCA 2005); Navarro v. State, 888 So. 2d 144 (Fla. 3d DCA 2004); Gonzalez v. State, 808 So. 2d 1265 (Fla. 3d DCA 2002). PD-11 has also litigated motions to vacate guilty pleas taken where the person did not know the plea would result in the labeling, registration, and public notification requirements. Delarosa v. State, 913 So. 2d 76 (Fla. 3d DCA 2005).

        In a related development, the county and many municipalities have enacted ordinances prohibiting persons labeled as sexual predators or offenders with minor victims, from living within a half mile of various locations such as schools, parks, school bus stops, day care centers. The net effect is virtual banishment, with some people living under a bridge because that it is the only place they could go without violating one of these ordinances. PD-11 has challenged the county ordinance because it purports to impose a penalty of up to a year in jail, when state law limits ordinance violations to 60 days. PD-11 is also in the process of raising broader constitutional challenges to these ordinances. 
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DEATH PENALTY LITIGATION

 

Challenging the Death Penalty for Juveniles
 

        In 2002, Assistant Public Defender Stephen Harper, on a leave of absence, served as the Coordinator of the Juvenile Death Penalty Initiative, a coalition of organizations (including the American Bar Association) whose sole purpose was to eliminate capital punishment for 16- and 17-year-old offenders. That work involved coordinating state legislative efforts, consulting on actual cases, securing the involvement of more organizations and entities (e.g. the American Medical Association, the American Psychiatric Association, the European Union, and the Carter Center), and working with the press. He coordinated the drafting and filing of amicus briefs in the case of Roper v. Simmons, 543 U.S. 551 (2005) which held that the Eighth and Fourteenth Amendments forbid imposition of the death penalty on persons who were under the age of 18 when their crimes were committed. He also served as an advisor to counsel for Simmons.   Return to Top


Challenging the Death Penalty for Mentally Retarded Persons
 

        PD-11 joined other capital defenders, postconviction lawyers and advocates for the mentally retarded in helping to shape the rules governing claims of mental retardation in capital cases. In 2001, the Florida Legislature banned the execution of the mentally retarded. The following year, the United States Supreme Court declared the execution of mentally retarded defendants to be unconstitutional in Atkins v. Virginia, 536 U.S. 304 (2002). PD-11 joined other advocates in arguing that the question of whether a defendant was mentally retarded should be determined before trial, rather than after trial as required by the legislature. This office argued that postponing this determination until after a capital trial would present a grave risk that innocent mentally retarded defendants would plead guilty to escape the death penalty. Pretrial determinations would also save the public the expense of preparing and trying a capital case where the defendant is ineligible for the death penalty. The Supreme Court of Florida ultimately accepted these arguments and promulgated rules providing for a pretrial hearing to determine mental retardation.   Return to Top


Challenging the Implementation of the Death Penalty Reform Act of 2000
 

        PD-11 joined a coalition of public defenders and other death penalty opponents to successfully challenge Florida’s Death Penalty Reform Act of 2000 (DPRA). The DPRA was an ill-considered attempt to fast-track death penalty appeals by creating a “dual track” system, whereby the direct appeal and postconviction proceedings would take place at the same time. This would have resulted in wasteful and unnecessary postconviction actions in cases that were reversed on direct appeal. The legislation also would have forced postconviction counsel to go forward without access to vital public records, and would have prevented counsel from presenting claims that did not become ripe until later in the review process. The Supreme Court of Florida found the DPRA to be unconstitutional, in Allen v. Butterworth, 756 So. 2d 52 (Fla. 2000), on the basis that it violated separation of powers.   Return to Top
 

Assisting the Innocence Project
 

        PD-11 assisted the Wrongful Conviction seminar run by Professor Jonathon Simon then at the University of Miami Law School in 1993. Working under a very short statutory deadline allowing for DNA postconviction testing, PD-11 screened and reviewed many closed appellate cases for potential DNA issues that would then be acted upon by Nova University’s Innocence Project.   Return to Top
 

Challenging the Application of the Death Penalty in Individual Cases
 

        In addition to institutional challenges, PD-11 has had a number of successes challenging the death penalty in individual cases, in both state and federal courts, including the following cases.

        In Garcia v. State, 816 So. 2d 554 (Fla. 2002), numerous errors required reversal of murder convictions and the death penalty, including (1) refusal to allow the defendant to impeach a key state witness with unsworn inconsistent statements; (2) refusal to allow, in the guilt and penalty phases, the accomplice’s testimony, at his separate trial, that he alone had committed the murders; and (3) allowing bad character testimony from a witness that he did not trust the defendant and did not want to be alone with him.

        In Ramirez v. State, 810 So. 2d 836 (Fla. 2001), a police crime technician was allowed to testify that his newly formulated knife mark identification procedure was infallible and enabled him to identify the murder weapon, to the exclusion of every other knife in the world. In ordering a new trial, the court called the knife mark identification procedure “a classic example of the kind of novel ‘scientific’ evidence that Frye was intended to banish—i.e., a subjective, untested, unverifiable identification procedure that purports to be infallible. The potential for error or fabrication in this procedure is inestimable. In order to preserve the integrity of the criminal justice system in Florida, particularly in the face of rising nationwide criticism of forensic evidence in general, our state courts—both trial and appellate—must apply the Frye test in a prudent manner to cull scientific fiction and junk science from fact.” Id. at 853.

        In Johnson v. State, 750 So. 2d 22 (Fla. 1999), the defendant and a codefendant were tried together before one jury. When the codefendant was presenting mitigating evidence during the trial’s penalty phase, Johnson and his counsel were excused. The codefendant’s mitigating evidence included claims that Johnson had manipulated him. The Florida Supreme Court held that the codefendant’s presentation of mitigating evidence was a critical stage of Johnson’s penalty phase hearing, so his absence without a knowing and voluntary waiver required a new sentencing hearing. On remand, Mr. Johnson received a life sentence.

        In Walker v. State, 707 So. 2d 300 (Fla. 1997), the trial court erred in rejecting the nonstatutory mitigator of Walker’s abusive childhood and in failing to consider numerous nonstatutory “positive” mitigators that Walker was honorably discharged from the military; was gainfully employed; had family members who testified to his good qualities; and was a deacon in his church. “This Court has repeatedly held that all mitigating evidence, found anywhere in the record, must be considered and weighed by the trial court in its determination of whether to impose a sentence of death.” The Florida Supreme Court remanded the case for a new sentencing hearing at which PD-11 attorneys secured the defendant a life sentence.

        In Manso v. State, 704 So. 2d 516 (Fla. 1997), the defendant, while testifying in the penalty phase, threw a microphone at the prosecutor, then got down on the floor and began screaming and shaking violently. Two psychologists evaluated him and recommended that he be involuntarily hospitalized for observation. The trial judge, though, refused to grant a continuance to determine Manso’s competency. The Florida Supreme Court reversed the death sentence as the judge abused her discretion in failing to grant a continuance so that Manso could be observed in a hospital setting.

        In King v. State, 623 So. 2d 486 (Fla. 1993), on direct appeal of a death sentence, the Florida Supreme Court reversed for a new sentencing hearing because during his penalty phase closing argument, the prosecutor gave a dissertation on evil, admonishing the jurors that if they recommended life imprisonment instead of death, they would be “cooperating with evil and would themselves be involved in evil just like” the defendant.

        In Brown v. State, 521 So. 2d 110 (Fla. 1988), an erroneous ruling by the trial judge terminating the penalty phase trial and sentencing the defendant to life imprisonment acted as an acquittal of the death penalty. The State could not successfully challenge the erroneous ruling because double jeopardy prevented a retrial on the death penalty.

        In Jackson v. Dugger, 837 F. 2d 1469 (11th Cir. 1988), the Eleventh Circuit remanded the case for a new sentencing hearing, where the jury was instructed that death was presumed to be the proper sentence when aggravating circumstances were found, unless they are overridden by mitigating circumstances. The federal circuit court held that this instruction denied the defendant the individualized sentencing determination required by the Eighth Amendment.

        In Hargrave v. Dugger, 832 F.2d 1528 (11th Cir. 1987), the Eleventh Circuit vacated the death sentence as the jury was not permitted to consider non-statutory mitigating circumstances.

        In Perri v. State, 441 So. 2d 606 (Fla. 1983), the death sentence was reversed where the trial court denied the defense request for a psychiatric evaluation prior to the penalty hearing. Although the defense of insanity was not raised, defendant’s testimony before the hearing that he had been in mental institutions should have been enough to trigger an investigation as to whether the mental condition of the defendant interfered with, but did not obviate, his knowledge of right and wrong. A person who is legally sane may still have an impaired mental state that can form the basis for a jury recommendation of life.

        In Scott v. State, 420 So. 2d 595 (Fla. 1982), a murder conviction and sentence of death were vacated because the trial court did not grant a psychiatric evaluation of the defendant or order a competency hearing prior to trial, even though there was ample evidence that the defendant might have been incompetent and unable to assist his counsel in the preparation of a defense.

        In Menendez v. State, 419 So. 2d 312 (Fla. 1982) (Menendez II), a death sentence was not appropriate where murder was not premeditated, was not done execution-style, and where the defendant had no significant criminal history.

        In Sturdivan v. State, 419 So. 2d 300 (Fla. 1982), the trial court’s refusal to instruct on lesser included offenses required a new trial.

        In Bryant v. State, 412 So. 2d 347 (Fla. 1982), the murder conviction and sentence of death were reversed because the trial court refused to instruct the jury on “independent act” under the felony-murder doctrine, where there was evidence from which the jury could have concluded that the victim’s death resulted from the accomplice’s act of committing sexual battery after defendant withdrew from the common robbery design.

        In Valle v. State, 394 So. 2d 1004 (Fla. 1981), the conviction and death sentence for murder of a police officer had to be vacated because the trial judge required the defendant to go to trial within 24 days of his arraignment, thus resulting in the denial of the effective assistance of counsel.

        In Brown v. State, 367 So. 2d 616 (Fla. 1979), on direct appeal of a death sentence, the Florida Supreme Court vacated the death sentence and remanded for imposition of a life sentence where the jury had recommended life imprisonment. PD-11 continued to pursue relief for our client in federal court. In Brown v. Dugger, 831 F. 2d 1547 (11th Cir. 1987), habeas corpus relief was granted by the federal district court and affirmed by the federal court of appeals because Brown was denied the right to confront witnesses against him when a detective was allowed to testify about hearsay statements made by an accomplice, and the prosecutor, in closing argument, commented on Brown’s silence, in violation of the Fifth Amendment.

        In Menendez v. State, 368 So. 2d 1278 (Fla. 1979) (Menendez I), the death sentence was vacated and the case was remanded for another sentencing hearing where the trial judge improperly considered non-statutory aggravating factors.

        In Riley v. State, 366 So. 2d 19 (Fla. 1978), the death sentence was vacated and the case remanded for another sentencing hearing where the trial judge had improperly considered non-statutory aggravating factors, and found statutory aggravating factors unsupported by the evidence. 
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EXTRAORDINARY WRIT PRACTICE—
Rectifying Serious Injustices and Illegal Actions
That Cannot Be Solved in the Normal Appeals Process

 

        A wide range of problems are susceptible of being remedied by extraordinary writs. The underlying principle is immediate access to appellate review to enforce the law. PD-11 routinely utilizes these writs, which include habeas corpus, mandamus, prohibition, and certiorari. Below are a few examples of this type of litigation.
 

Challenging Judges Improperly Presiding Over Cases

 

  • Refusal of judge to grant recusal where bias is reasonably questioned
     

  • Perpetual reassignment of misdemeanor court judges to hear felony cases
     

  • Establishment of a local domestic violence court   Return to Top

 

Protecting Integrity of Criminal Justice System

  • Protecting right of public defender clients to independent counsel when the public defender has an ethical conflict of interest
     

  • Enforcing plea agreements on behalf of clients
                       

  • Challenging state’s ability to appeal adverse decisions
     

  • Protecting client’s right to judicial review of administrative decisions affecting parole release date
     

  • Challenging use of earlier, uncounseled convictions in subsequent parole eligibility
     

  • Pursuing repayment to client of fines and costs paid before conviction reversed on appeal
     

  • Challenging extradition of clients to other states
     

  • Challenging court’s refusal to follow rule authorizing counsel to submit written plea of not guilty in lieu of client’s appearance at arraignment
     

  • Supporting indigent client’s right to discovery costs, even if family hires an attorney for client   Return to Top


Challenges to Lack of Jurisdiction
 

  • Challenging penalty imposed for violation, where probation has expired
     

  • Challenging increase of sentence after completion
     

  • Preventing further prosecution barred by Statute of Limitations   Return to Top


Challenges to Double Jeopardy, Speedy Trial, and Illegal Sentences
 

  • Challenging state’s failure to timely file information
     

  • Challenging illegal sentences and denial of gain time where client entitled to immediate release.
               

  • Preventing retrial where first trial aborted without manifest necessity or defense assent
       

  • Challenging adjudication for higher charge after unlawful inquiry by judge into deliberative process of jury’s verdict for lesser offense   Return to Top

 

 

PROTECTING FIRST AMENDMENT FREEDOMS

 

        In Sawyer v. Sandstrom, 615 F.2d 311 (5th Cir. 1980), PD-11 successfully argued that a Dade County loitering ordinance was unconstitutionally overbroad, in violation of first amendment associational rights, where the ordinance criminalized being in a public place and associating with individuals whom the defendant knew to be engaged in drug use or possession, without any active participation by the defendant in drug activity.

        In Rodriguez v. State, 906 So. 2d 1082 (Fla. 3d DCA 2004), our client was prosecuted for wearing a shirt which had the word “police” written on the front and back. PD-11 successfully argued that the statute which criminalized the unlawful display of authorized indicia of law enforcement authority was unconstitutional. The appellate court held that the statute was unconstitutional under the First and Fourteenth Amendments as it was impermissibly based on the type of words written on the shirt, which were not obscene, defamatory, or fighting words. The appellate court also held that it was unconstitutionally overbroad, as it lacked an intent to deceive as an element of the crime. The Supreme Court of Florida agreed. State v. Rodriguez, 920 So. 2d 624 (Fla. 2005).

        In State v. O’Daniels, 911 So. 2d 247 (Fla. 3d DCA 2005), PD-11 successfully argued that a Miami Beach ordinance that banned all street performances and art vending from a fixed location in the entire city, except for 11 locations where a permit was required, violated the First and Fourteenth Amendments. The appellate court held that the ordinance was broader than necessary to address the city’s traffic concerns, and did not leave open ample alternative channels for communication of information.

        Early on, our office challenged Florida’s loitering and prowling statute for overbreadth and vagueness in the landmark case of State v. Ecker, 311 So. 2d 104 (Fla. 1975). The Supreme Court placed a limiting, “breach of the peace” construction to uphold the statute’s constitutionality. A few years later, in B.A.A. v. State, 356 So. 2d 304 (Fla. 1978), PD-11 urged that a child’s actions of approaching cars stopped at a traffic light and engaging drivers in conversation, after a warning to leave, did not fall within Ecker’s limiting construction. The Supreme Court agreed, noting that otherwise the statute “could be upheld against anyone at street intersections lawfully seeking donations, for charitable purposes, from drivers of automobiles.” 356 So. 2d at 306. In numerous other cases, PD-11 has successfully argued that loud, obscene, non-violent verbal protests to the police are protected by the First Amendment, and thus individuals cannot be convicted of resisting an officer without violence and/or disorderly conduct for these actions. T.J.J. v. State, 913 So. 2d 1267 (Fla. 3d DCA 2005); J.G.D. v. State, 724 So. 2d 711 (Fla. 3d DCA 1999); L.A.T. v. State, 650 So. 2d 214 (Fla. 3d DCA 1995).

        In Pottinger v. City of Miami, 810 F. Supp. 1551 (S.D. Fla. 1992), assistant public defenders, on their own time, assisted in bringing a class action civil rights lawsuit on behalf of homeless people, establishing their right to engage in essential, life-sustaining acts such as sleeping and bathing on public property when they have absolutely no other place to go. Arresting homeless persons for eating, sleeping and congregating in public was cruel and unusual punishment, in violation of the Eighth Amendment, and interfered with the fundamental right to travel, in violation of the First Amendment. Destroying the personal property of those arrested violated the Fourth Amendment. 
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PROTECTING FOURTH AMENDMENT RIGHTS

 

        The Fourth Amendment protects people against “unreasonable searches and seizures.” Whether the police have a legal basis for stopping and/or arresting a person depends on the “totality of the circumstances” surrounding each stop or arrest, so it is important to examine the specific facts in a case to determine if a person has been illegally seized. Here are some of the cases in which PD-11 has successfully challenged a stop or an arrest of our client.

        In Florida v. J.L., 529 U.S. 266 (2000), PD-11 successfully argued that a juvenile’s Fourth Amendment rights were violated when the police stopped him based solely upon on an anonymous tip that he was carrying a gun in a public place. The United States Supreme Court unanimously agreed, holding that the anonymous tip lacked sufficient indicia of reliability to establish the reasonable suspicion necessary for a stop, where it was not accompanied by observations of predictive behavior that would let the police test the unknown informant’s knowledge or credibility.

        In Albo v. State, 477 So. 2d 1071 (Fla. 3d DCA 1985), PD-11 successfully argued that our client’s arrest was illegal where the officer relied on incorrect information in the police computer showing that our client had a suspended license. The court explained: “Our decision is meant to inspire the correction of records, or at least eliminate any reliance upon uncorrected ones.”

        The police cannot just stop anybody who is near a person suspected of committing a crime. In Louis v. State, 589 So. 2d 430 (Fla. 3d DCA 1991), the police had a valid basis to stop one of three pedestrians, but that did not give the police the right to stop and frisk the other pedestrians since mere presence at the scene of an investigatory stop does not justify a stop. More than merely unusual conduct is needed to justify a stop by the police. The unusual conduct must be related to a crime that has been or may be committed. Thus, a middle school student who passed out in the bathroom and appeared subdued and a “little pale” did not provide reasonable suspicion to believe that he was involved in illegal activity or violating school rules, so requiring him to empty his pockets and book bag was illegal. C.G. v. State, 941 So. 2d 503 (Fla. 3d DCA 2006).

        Similarly, being in a place that might be considered out of place does not provide a basis for the police to stop a person. For example, a black man walking in a predominately white neighborhood does not justify an investigatory stop. Phillips v. State, 781 So. 2d 477 (Fla. 3d DCA 2001). Riding a bicycle slowly through a residential area in the early morning does not give the police a basis to stop the rider. Mullins v. State, 366 So. 2d 1162 (Fla. 1978). Walking with a fishing pole towards water open to the public at 3:00 a.m. in a “high class” neighborhood where there had been recent burglaries does not permit the police to stop the person. As the court explained in Levin v. State, 449 So. 2d 288, 289 (Fla. 3d DCA 1983), “being out on the public street during late and unusual hours cannot constitute a valid basis to temporarily detain and frisk an individual.” Affirmed, State v. Levin, 452 So. 2d 562 (Fla. 1984).

        Of course, people can consent to talk to the police or to let the police search their property, but if the police go too far, the Fourth Amendment is violated. For example, in Hidalgo v. State, 959 So. 2d 353 (Fla. 3d DCA 2007), a consensual encounter with the police became an illegal detention when the police conducted a pat-down search. In Dominguez v. State, 616 So. 2d 506 (Fla. 3d DCA 1993), our client gave police officers consent to search his apartment for drugs. Without asking, the officers then brought in a narcotics detection dog, who found drugs in a wall. The court agreed with PD-11’s argument that the drugs had to be suppressed because the consent given to the officers did not by implication include the subsequent entry by the dog and its handler, and thus the officers exceeded the scope of the consent given.

        Evidence that is obtained as a result of an illegal stop or arrest can be suppressed. Thus, in Adams v. State, 830 So. 2d 911 (Fla. 3d DCA 2002), a police officer tackled the defendant, handcuffed him, and took him to the police station, all without explanation. This amounted to a de facto arrest without any basis. A later confession, given at the police station after Miranda rights were read to the defendant, was tainted by the illegal arrest and so should have been suppressed. The same result was reached in Johnson v. State, 813 So. 2d 1027 (Fla. 3d DCA 2002), where the police officer illegally arrested our client by handcuffing him and bringing him to the police station, so a statement given less than two hours later at the station was tainted by the illegal arrest and should have been suppressed. Where a confession follows an illegal arrest, it can be suppressed even if the person is read his or her rights before making the confession. J.P. v. State, 695 So. 2d 464 (Fla. 3d DCA 1997). 
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RIGHT TO A FAIR TRIAL

 

        Over the years, PD-11 has strived to protect our clients’ rights to a fair trial in the many appeals we have handled. The following are just a few highlights. 
 

Conduct of Trial
 

        In State v. Vazquez, 419 So. 2d 1088 (Fla. 1982), the Florida Supreme Court held that where a defendant is charged with possession of a firearm by a convicted felon as well as other offenses, severance of the possession count is required because prejudice to the defendant on the other counts due to the fact of the prior conviction outweighs judicial economy.

        In Francis v. State, 413 So. 2d 1175 (Fla. 1982), the Florida Supreme Court held that jury selection is a critical stage at which an accused has the constitutional right to be personally present. Where the accused is not voluntarily absent, the record must establish a knowing and intelligent waiver by him of his right to be present, or ratification of counsel’s actions taken in his absence.

        In State v. Singletary, 549 So. 2d 996 (Fla. 1989), the Florida Supreme Court ended the practice of trial judges occasionally absenting themselves during voir dire, and established that no questioning of prospective jurors in a criminal case may take place outside of the presence of a trial judge.

        In Coney v. State, 653 So. 2d 1009 (Fla. 1995), the Florida Supreme Court established the right of the defendant, under Florida Rule of Criminal Procedure 3.180, to be present at sidebar if that is where peremptory challenges are exercised, unless that right is personally waived by the defendant.

        In Ivory v. State, 351 So. 2d 26 (Fla. 1977) PD-11 successfully argued that when a jury has a question during deliberations, the trial judge must give defense counsel the opportunity to participate in the discussion about the answer to be given. 
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Defendant’s Right to Present a Defense
 

        In Adkins v. State, 32 Fla. L. Weekly D1425 (Fla. 3d DCA June 6, 2007), available at 2007 WL 1610147, the state’s murder case against the defendant rested entirely on one witness, whom the defense argued was the real perpetrator. The appellate court held that the state’s failure to disclose that the witness had been the subject of twelve separate criminal complaints in the year after the murder violated Brady v. Maryland, 373 U.S. 83 (1963), and required a new trial even though this witness had been cleared of all charges, as the undisclosed evidence still could have impeached or undermined his credibility.

        In Lavado v. State, 492 So. 2d 1322 (Fla. 1986), the Florida Supreme Court established the right of the defense to question prospective jurors on voir dire regarding their ability to fairly consider a particular defense (here, voluntary intoxication) and any bias or prejudice they may have against it. Asking simply whether a juror would follow the court’s instructions on the law is insufficient. Lavado has been applied to a variety of defenses, such as necessity, entrapment, self-defense, and insanity. See e.g. Mosely v. State, 842 So. 2d 279 (Fla. 3d DCA 2003).

        Basic “principles of fundamental fairness” sometimes require the trial court to appoint experts to assist the defendant in preparing and presenting his or her case, the court held in Dingle v. State, 654 So. 2d 164 (Fla. 3d DCA 1995). Our client was babysitting a child who became unresponsive and died of trauma to the brain and spinal cord. The state charged him with murder. His defense was that previous injuries to the child inflicted by someone else had caused the brain to swell, causing death. Shortly before trial, the state added three doctors to its witness list, all of whom would testify that either the child had no other injuries or they were inflicted the day the child died. When the defense sought the appointment of two pediatric experts to dispute that testimony, the trial court denied the request. On appeal, PD-11 successfully argued that the denial of the additional experts was, under the circumstances, an abuse of discretion.
 
        In Teemer v. State, 615 So. 2d 234 (Fla. 3d DCA 1993), the court held that the Rape Shield Statute cannot be used to preclude DNA test results showing the defendant was not the source of semen found in the rape victim’s vagina, as that evidence was crucial to the defense of misidentification.

        In Miami Herald Pub. Co. v. Morejon, 561 So. 2d 577 (Fla. 1990), the Florida Supreme Court held that when an on-duty reporter witnesses events relevant to a subsequent criminal charge, there is no privilege, qualified, limited, or otherwise, that shields the reporter from having to testify.

        In Bryant v. State, 412 So. 2d 347 (Fla. 1982), PD-11 successfully argued that an independent act is a defense to accomplice liability under the felony murder doctrine. Bryant triggered the creation of Florida Standard Jury Instruction 3.6(l) on the defense of independent act for felony murder.

        In Roberts v. State, 335 So. 2d 285 (Fla. 1976), the Florida Supreme Court held that where the defense of insanity is fairly raised, the jury must be instructed upon the consequences of a verdict of not guilt by reason of insanity. This holding is the foundation for Florida Standard Jury Instruction 3.6(a). 
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Prosecutorial Misconduct
 

        In Fleitas v. State, 867 So. 2d 512 (Fla. 3d DCA 2004), the court ordered a new trial due to the improper testimony of an assistant state attorney. It forcefully explained: “[F]or what we think and hope is the first and last time in legal history, an assistant state attorney was permitted to be called as a witness in the case and to testify, allegedly as ‘background,’ to her investigation of the case itself, her opinion concerning the defendant’s guilt, her assessment of the victim’s credibility, and that the defendant had committed many other uncharged crimes against the victim.”

        In Echevarria v. State, 845 So. 2d 340 (Fla. 3d DCA 2003), the defendant entered into a plea agreement pursuant to which he agreed to testify against his codefendant, and the state agreed that it would not oppose his parole if he testified. However, the chief prosecutor later personally advised the parole board that the defendant should not be paroled. The court held this was a breach of the plea agreement that entitled the defendant to withdraw his plea. Shortly thereafter, the defendant entered into a new plea agreement, pursuant to which he was released.

        In Adams v. State, 830 So. 2d 911 (Fla. 3d DCA 2002), the court held that the prosecutor’s repeated personal attacks on defense counsel were so prejudicial as to vitiate the entire trial. It stated that the closing argument inflamed the jury and was “intolerable and anathema to the constitutionally guaranteed words and spirit of a fair trial.” Therefore, a mistrial should have been granted even though the trial court had sustained objections to the attacks.

        In Duarte v. State, 598 So. 2d 270 (Fla. 3d DCA 1992), the court held that the state’s failure to disclose a fingerprint technician’s report, which found a fingerprint that was not the defendant’s, violated Brady v. Maryland, 373 U.S. 83 (1963), and required a new trial. 
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Evidentiary Issues
 

        In Robertson v. State, 829 So. 2d 901 (Fla. 2002), the Florida Supreme Court held that the “Tipsy coachman” doctrine, which allows an appellate court to affirm if the trial court’s decision is right for the wrong reason, cannot be applied when there is no evidence in the record to support the alternative theory. It also ruled that before collateral crimes evidence may be admitted, there must be adequate pretrial notice and the trial court must make multiple determinations, including whether: the defendant committed the prior crime, the prior crime is sufficiently similar to the charged crime, the prior crime is too remote, and the prejudicial effect of the prior crime substantially outweighs its probative value. If such evidence is admissible, the jury must be given a cautionary instruction about the limited purpose for which the evidence can be considered. The Court additionally found that there must be a “substantial similarity” between the charged crime and other crime for the latter to be admissible for the purpose of establishing absence of mistake or accident. Id. at 909. The Court further held that when the prior crime is not admissible collateral crimes evidence, the state may not introduce that evidence through the back door by cross-examining the defendant about the alleged prior crime. The Supreme Court emphasized: “It is critical for the courts to enforce this restriction on impeachment.” Id. at 913.

        In State v. Scarlet, 800 So. 2d 220 (Fla. 2001) and State v. Dodd, 419 So. 2d 333 (Fla. 1982), the Florida Supreme Court held that the exclusionary rule applies in probation revocation proceedings as well as in criminal trials.

        In State v. McFadden, 772 So. 2d 1209 (Fla. 2000), the Florida Supreme Court held that unless there is a final judgment of conviction or an adjudication of guilt, a defendant or witness may not be impeached with evidence of a guilty plea or jury verdict.

        In Edwards v. State, 857 So. 2d 911 (Fla. 3d DCA 2003), the appellate court held that reverse collateral crimes evidence is admissible for exculpatory purposes. Specifically, in the defendant’s carjacking trial, it was error to prohibit the defense from introducing evidence of other carjackings in the same area and involving the same modus operandi that took place while the defendant was in jail.
       
        In Acevedo v. State, 787 So. 2d 127 (Fla. 3d DCA 2001), the appellate court held that for evidence of other crimes to be admitted, the state must prove by clear and convincing evidence that the defendant committed the other crime. A “strong suspicion or hunch” that the defendant committed the other crime is not enough.
       
        In Soca v. State, 673 So. 2d 24 (Fla. 1996), we successfully argued that the Florida Constitution should be applied to render evidence obtained from a warrantless probationary search inadmissible at a criminal trial, as the U.S. Supreme Court had not yet ruled on this particular issue.

        In State v. Lavazzoli, 434 So. 2d 321 (Fla. 1983), the Florida Supreme Court agreed with our argument that the amendment to the search and seizure provision of the Florida Constitution could not be applied retroactively. In 1983, this provision was amended to require that it be interpreted in conformity with decisions of the United States Supreme Court.

        In Postell v. State, 398 So. 2d 851, 854 (Fla. 3d DCA 1981), the leading case on inferential hearsay, PD-11 successfully maintained that where “the inescapable inference from the testimony is that a non-testifying witness has furnished the police with evidence of the defendant’s guilt, the testimony is hearsay, and the defendant’s right of confrontation is defeated, notwithstanding that the actual statements made by the non-testifying witness are not repeated.” This decision “has been cited favorably by other appellate courts in Florida at least 63 times, including by the Florida Supreme Court.” Lidiano v. State, 32 Fla. L. Weekly D1224 (Fla. 3d May 9, 2007) (Ramirez, J. dissenting), available at 2007 WL 1342203.

        In State v. Basiliere, 353 So. 2d 820 (Fla. 1977), PD-11 successfully argued that discovery depositions cannot be used as evidence in the state’s case-in-chief when the witness unexpectedly dies prior to trial. This use of the depositions would violate an accused’s right to confront his accusers. 
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Postconviction Cases
 

        In Peart v. State, 756 So. 2d 42 (Fla. 2000), postconviction motions were filed claiming violations of Florida Rule of Criminal Procedure 3.172(c)(8), which requires trial courts to advise defendants of the deportation possibility as a consequence of their pleas. The Florida Supreme Court held that to show prejudice, the defendants need not prove a probable acquittal at trial. In Dixon v. State, 730 So. 2d 265 (Fla. 1999), PD-11 successfully maintained that the time period for seeking postconviction relief, on the basis of a change in the law that is given retroactive effect, should be enlarged by holding that the two-year window begins to run from the date the decision announcing retroactivity becomes final, not when the decision announcing the change in the law was issued.   Return to Top

 

 

 

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Law Offices of the Public Defender
Eleventh Judicial Circuit of Florida

 

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