Sunday, January 31, 2010
Urgent Action 27/10 - Martin Grossman Scheduled for Execution in Florida - Appeals Needed Before February 16
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29 January 2010
UA 27/10 Death Penalty
USA Martin Grossman (m)
Martin Grossman, a 45-year-old white man, is due to be executed in the US state of Florida at 6pm on 16 February for a crime committed when he was 19 years old. He was convicted of murder in 1985, and has been on death row for nearly a quarter of a century.
Margaret Park, a 26-year-old woman employed as a wildlife officer by the state Game and Fish Commission, was shot dead while on patrol in coastal mid-western Florida on 13 December 1984. About two weeks later, 19-year-old Martin Grossman and Thayne Taylor, aged 17, were arrested. The two were tried jointly. Grossman was convicted of first-degree murder. Taylor was convicted of third-degree murder, a non-capital offense.
At the sentencing for Martin Grossman, the defense presented four witnesses â€“ the defendantâ€™s mother, a childhood friend, and two correctional staff â€“ in an attempt to portray his positive attributes to counter the facts of the crime on which the state was relying to obtain a death sentence. However, the jury voted for death, the judge accepted its recommendation, rejected Grossmanâ€™s young age as a mitigating factor, and determined that there were no mitigating factors. The aggravating factors were held to include that the murder was committed to avoid arrest and that it was especially â€œwicked, evil, atrocious or cruelâ€.
The appeal courts have rejected the claim that Grossman received inadequate representation at the sentencing phase. In an affidavit, Grossmanâ€™s lead trial lawyer said that he and his defense colleague had done a â€œvery poor and ineffective jobâ€. Upholding the death sentence in 2005, however, a federal judge ruled that this view was â€œpremised on the benefit of hindsightâ€. The second defense lawyer, who had been hired only two weeks before the sentencing to prepare mitigation evidence, stated that they should have told the trial judge that they were not ready.
The defense presented no expert mental health testimony, after their court-appointed psychologist told them that his assessment of Grossman had uncovered no problems serious enough to aid their defense. However, a forensic psychologist hired by Martin Grossmanâ€™s lawyers several years after his conviction drew a different conclusion after a more thorough assessment. He concluded that there was much mental health evidence that called into question the notion that Martin Grossman had acted in premeditated fashion at the time of the crime or that should serve as mitigating evidence. Martin Grossman had â€œcompromised intellectual functioning, probable brain dysfunctionâ€, and a â€œdevelopmental history characterized by profound and untreated complicated bereavementâ€ â€“ (including as a result of the death in 1981 of his father, during whose long and serious illness Martin had acted as primary care-giver) â€” â€œa high level of fear and depression, and parental neglect, abandonment and mistreatment.â€
According to the trial record, Martin Grossman and Thayne Taylor had driven to a wooded area on the night of 13 December 1984 to shoot a handgun that Grossman had recently obtained. The two teenagers were confronted by Margaret Park who found the gun and began to radio the police. Martin Grossman, who was on probation at the time following a burglary conviction, pleaded with her not to turn him in as it would mean going back to prison. When she refused, he grabbed her torch and repeatedly struck her with it, with Taylor coming to his assistance. Margaret Park managed to draw her gun, and fire off a shot before Martin Grossman grabbed the weapon and fired a single shot which struck the officer in the head.
About two weeks later, Grossman and Taylor were arrested after an acquaintance, Brian Allan, told the police that they had admitted to the crime. The two had also apparently told another friend, Brian Hancock, of the shooting, and Martin Grossman also allegedly related the details of the shooting to a jail mate, Charles Brewer. The two defendants were tried jointly, over the objection of Martin Grossmanâ€™s lawyer. The prosecution introduced the testimony of Allan, Hancock and Brewer against Grossman. It introduced against Thayne Taylor the statement that Taylor had given to the police. The jury was instructed that it could only use it against Taylor, not Grossman. While the courts have ruled that it was a constitutional error against Grossman to admit Taylorâ€™s statement in this way, they have ruled that the error was â€œharmlessâ€ given the other testimony pointing to Grossmanâ€™s dominant role in the crime.
In 1990, Charles Brewer signed an affidavit retracting his trial testimony against Grossman. He said that he assisted the authorities because he believed they would help him with his own case. He said that the authorities had told him to continue talking to Grossman and had fed him questions to ask. Among other things, Brewer had testified that Grossman had told him that he had shot Margaret Park because he did not want to be arrested by a woman. In his affidavit, he said that the prosecutors emphasized to him â€œthe female officer thingâ€ when they were preparing him to testify. During the trial, the prosecution had repeatedly emphasized the suggestion that gender had been part of the motive for the killing. In his affidavit, Charles Brewer said that â€œI cannot say Martin told me thatâ€ and â€œMartin never said he shot herâ€. On 14 January 2010, the Florida Supreme Court overturned the death sentence of another inmate, Paul Johnson, after finding that the state had induced him â€œto make incriminating statements to a jailhouse informantâ€, and because the prosecutor had known the statements were â€œimpermissibly elicitedâ€ and yet had introduced them at the 1988 trial. On 21 January 2010, a Florida judge rejected the argument that Grossman should receive the same relief as Johnson, on the grounds that there was no evidence that the state knew Brewerâ€™s testimony was false at the time of Grossmanâ€™s trial. This and other issues are currently on appeal to the Florida Supreme Court.
Amnesty International opposes the death penalty unconditionally. To end the death penalty is to abandon a destructive, diversionary and divisive public policy that is not consistent with widely held values. It not only runs the risk of irrevocable error, it is also costly, to the public purse as well as in social and psychological terms. It has not been proven to have a special deterrent effect. It tends to be applied in a discriminatory way, on grounds of race and economic and social status. It denies the possibility of reconciliation and rehabilitation. It promotes simplistic responses to complex human problems, rather than pursuing explanations that could inform positive strategies. It prolongs the suffering of murder victimsâ€™ families, and extends that suffering to the loved ones of the condemned prisoner. It diverts resources that could be better used to work against violent crime and assist those affected by it. The USA has carried out 1,193 executions since resuming judicial killing in 1977. Florida accounts for 68 of these executions. There have been five executions in the USA this year.
RECOMMENDED ACTION: Please send appeals to arrive as quickly as possible:
- Explaining that you are not seeking to excuse the killing of Margaret Park;
- Noting Martin Grossmanâ€™s young age at the time of the crime, and that he has spent 24 years on death row;
- Expressing concern that the jury heard no expert mental health testimony, noting the post-conviction assessment;
- Calling for clemency for Martin Grossman and for commutation of his death sentence.
Governor Charlie Crist
Office of the Governor
400 S. Monroe St. Tallahassee
Fax: 1 850 487 0801
Salutation: Dear Governor Crist
PLEASE SEND APPEALS IMMEDIATELY.
Check with the AIUSA Urgent Action office if sending appeals after 16 February 2010.
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Saturday, January 30, 2010
Petition to Support a Grant of Time to Present a Petition for Commutation in the Case of Martin Grossman
Here is the letter that is being organized by Rabbi Zvi Boyarski at the Aleph Institute. Individuals and organizations who can sign on should do so by e-mailing their letter to email@example.com as soon as possible.
A first use of this petition is scheduled for Monday evening (Feb. 1), but signatures may be added even after that time. Thank you for anything you can do to push this along to those who would want to assist.
Petition to Support a Grant of Time to Present a Petition for Commutation
in the Case of Martin Grossman
To: The Honorable Charles Crist, Governor, State of Florida
We write to request a 60-day stay of execution to enable a concerned community to prepare a clemency petition to the Executive Clemency Board of the State of Florida asking for commutation of sentence, from death to life without parole, in the case of Martin Grossman. We feel conscience-driven to do this because the Grossman case is so different from other death sentence cases that we feel you may agree with us that Martin Grossman does not deserve to die for his crime.
Martin was a troubled youth suffering from incipient paranoia, adjustment problems, lack of judgment, drug addiction, and panic attacks when, as a 19-year-old, he was startled and stopped by a park security officer, Margaret Parks, whom he killed in a hand-to-hand struggle. Although he was mentally disturbed and out of control at the time, his trial went awry because the crime fit the technical definition of “premeditated murder” for the simple reason that Martin was on probation from a youth facility (for burglary) at that time. His probation violation being a “crime,” he was considered to have killed the officer while committing another crime, and thus, premeditation. This technical definition made Martin eligible for the death penalty. Martin’s father was a military man who had been disabled and then died. The family was without funds for a vigorous defense. In addition, this death sentence case is different from others because:
Martin shot while in a state of “frenzy and panic,” and he did not plan to kill her (or anyone else) at the time.
Martin’s sentence was extremely disproportionate to other criminals who receive the death sentence, and was not worse than many, many other criminals who receive considerably less punishment. His co-defendant got only three years.
Martin has an IQ of 77, and at the time of the crime was uneducated, unsocialized, and suffered from a seizure disorder and possible organic brain dysfunction since earliest childhood. He probably misunderstood the nature of his crime and surely was not able to cooperate in his own defense to the degree needed.
Martin’s tragic childhood and adolescence was never adequately presented to jury, judge or appeals courts. In the sentencing phase, 30 out of 33 of the witnesses he wanted were not called, and the terrible result was the ultimate penalty.
Martin has an intact and humane conscience, and has suffered constantly from remorse and contrition for his crime. He is not a manipulative or cagey person with the ability to “fake good” – his intellectual limitations make it clear that his emotional presentation is honest and uncontrived.
There were many irregularities both with Martin’s trial and with the appeals and post-conviction actions. Many of the errors were admitted by one court or another but characterized as “harmless errors.” The cumulative effect of these errors, however, was to make it much harder for the unfortunate genuine fact situation to be clearly seen. That fact situation would not lead a jury, in this time and place, to conclude that Martin Grossman should be put to death.
In the event that Governor Crist will not grant that commutation outright, we the undersigned beseech the Governor to mercifully grant a 60 day stay which will allow for a comprehensive clemency petition to be assembled, presented and considered. We strongly allowing for a consideration of the issues presented are in the interest of the State of Florida in tempering justice with mercy.
Save Martin Grossman
Sponsored by: Aleph Institiute and Chabad.
To save one life is like saving the whole world:
We need your help today to save the life of Martin Grossman who is set to be executed on February 16th. We are only advocating that he not get the death penalty at this time. We are asking that the Governor take the time to hold a proper clemency hearing to determine if the Death Penalty is really appropriate in this case. This may not be easy for you to go out of your way to try and save the life of someone who took someone else’s life but we must do what is just and right and what the Torah teaches us is correct. Prominent Rabbis have ruled that every Jew has the responsibility to save this man’s life. Please sign the petition at the end of this story.
There is no question that Martin Grossman committed a grievous and violent act, robbing Margaret Parks of her life and her future but also robbing her family of their beloved daughter and sister and the future they hoped for her. Having counseled Martin and providing spiritual guidance to him over the course of the last 25 years, we know without any doubt that he takes full responsibility for his evil deed and that he lives (as he should) with tremendous daily guilt and remorse. He often speaks of the anguish and devastation he wreaked on Ms. Park’s family and of his impotence, being completely unable to do anything to relieve their sorrow or make amends.
His childhood history, in fact, is marked by the fact that as a young child, Martin had this very feeling of impotence imposed upon his undeveloped psyche, much too young, because he was unable to relieve the suffering of his father (a veteran who was never known to his son during healthy productive years and whom Martin only knew as an ailing and needy invalid).
The unusual circumstances in Martin Grossman’s case include:
1. The unfortunate arbitrary character of the death sentence in Martin
Grossman’s case. In fact, we think it is clear that if Martin were tried in a criminal court today, he would not have received the death sentence. We think you may agree that it was imposed as a result of many distinctly unusual factors that were never well understood, at various levels of the trial and appeal process. For instance, the reason that his crime was identified as “premeditated murder” was a technicality, and nobody who actually knows what took place the day he committed the crime would really use the word “premeditation” for that situation. (He was a drug-addicted youth without much guidance in the world who was surprised and taken aback by the sudden approach of an officer, and he “lost it” and tried to prevent her from turning him in. He was not knowingly committing a crime at the time he was apprehended although technically he was committing the crime of probation violation.) We would ask permission to show the following:
a. The “aggravating circumstance” was not what we would consider to be
aggravating circumstance today, and in fact, did not amount to what most people consider “heinous, atrocious or cruel.”
b. The “mitigating circumstances” were not explored because of the
situation including Martin’s communication deficits.
c. The crime was not what any of us today would probably consider
“cold, calculated or premeditated.”
d. Martin Grossman’s history points to the high probability that he
would be considered in “extreme mental and emotional disturbance” at the time of the crime, although that could not come out at the time of the trial.
e. Martin Grossman acted “out of frenzy, panic or rage” although that
was also not brought out at the trial.
f. Martin’s sentence was extremely disproportionate to other criminals
who receive the death sentence, and was not worse than many, many other criminals who receive considerably less punishment.
2. The fact that Martin’s mental capacity is so seriously challenged
(Martin has an IQ of 77 and was uneducated, and also suffered from a seizure disorder and possible organic brain dysfunction since earliest childhood) that he probably misunderstood the nature of his crime itself and surely was not very capable of cooperating in his own defense to the degree needed, considering the gravity of his situation. At the same time, his support system of family and friends was seriously deficient for many of the same reasons, and nobody “kicked in” properly to help his defense at that critical moment. Had he been able to garner support or to provide his lawyer with vigorous assistance in defending himself it is almost certain that he would not have been sentenced to death.
3. The fact that Martin’s tragic childhood and adolescence provided a
backdrop for the trial and the appeal that was never adequately presented to jury, judge or appeals courts. In the sentencing phase, 30 out of 33 of the witnesses he wanted to call in his defense were not called, and the terrible result was that he received the ultimate penalty. When he brought this issue up in post-conviction litigation, the court held that the missing 30 witnesses did not matter because they knew Martin when he was much younger than 19 (when he committed the crime) but the three who did testify knew him closer to the contemporaneous time period. In fact, that is the very reason these 30 witnesses would have so much to add to the knowledge that a fact-finder would need to conscientiously decide whether or not a man should die for his crime: what childhood circumstances went into the making of the man who stood before them? In the case of Martin Grossman, the jury decided that they knew his motivations when he killed his victim. Had they heard from the 30 witnesses who were precluded from testifying, they would have had a much different body of knowledge about his motivations. They believed his motivation was purely evil and wicked. Information from these 30 individuals would have made it much more likely that they would have believed that he was motivated by panic, confusion, and a degree of utter helplessness to manage his own emotions brought on by a deficient childhood and deprivation of the ability to mature into a responsible and confident adult.
4. Martin’s unequivocal contrition and changed nature – Rabbi Katz with
The Aleph Institute has been Martin’s spiritual advisor for the past 15 years and can speak to the man that Martin has become and, as his aunt has written also, he is now a “solid, humble human being” far from the disturbed youth who shot Ms. Parks over 25 years ago. In this case, the rehabilitation given to him by the State of Florida has been effective, and Martin Grossman, far from being a hopeless criminal who must be put to death for fear of worse behavior, has become an example of correctional services effectively correcting both behavior and character.
5. Martin’s age (19) and physical state and state of mind at the time
of the offense – Martin was an addict – he had been taking prescription barbiturates for seizures since early childhood and developed as an adolescent an addiction to other drugs. He was regularly high, suffered from a permanent state of paranoia and a lack, sometimes complete absence of judgment. On the night of his crime, Martin was on all kinds of drugs including PCP, Cocaine, Crystal Meth and other pills.
6. Life in prison without parole is an effective sentence to serve
justice. Martin’s crime was not actually cold-blooded. His conduct since that night has been exemplary and he is a model prisoner. He did not set out to commit a crime that night over 25 years ago – it was very truly a juvenile lark that went terribly and tragically awry. Note that the medical report of Dr. Fisher, a forensic psychiatrist who studied Martin and a wealth of background information, concludes at page 12 in its final paragraph “Given the facts and diagnosis described above it would be inconsistent and highly illogical to characterize Martin’s actions during the murder as rationally directed towards the goals of avoiding arrest or avoiding law enforcement. No such goal-oriented behavior or cognition was possible given the severely altered mental state in which Martin was functioning at this time. Because he was in a psychotic state he was likewise unable to form the premeditation for the underlying felonies present in this case (robbery, burglary and escape).” For the real person who really committed the real crime, death is not necessary; correction has been working and can be expected to be 100% effective.
7. The Affidavit of Charles Brewer dated 21 July 1990. Charles Brewer,
a fellow inmate in 1985, testified for the prosecution. Subsequently he provided a very disturbing affidavit that states that his testimony was not completely true and that he expected, and received, consideration for enhancing what he really knew and what he actually heard from Martin Grossman. What is most disturbing is that he appears to have been a critical witness, bringing into question the strength of the case without Brewer, who admits his testimony was tainted and improperly procured.
Moreover, the case relied on such witnesses as Brewer, the accomplice Taylor (who was sentenced to a mere three years), and others who all had something to gain by lying or at least embellishing the truth. This may have, at the very least, made the difference between life and the death sentence. We do not know what attempts, if any, were made to plead Mr. Grossman “down” on diminished criminal responsibility. We are looking into this question now.
In a death penalty system in which approximately 2% of known murderers are sentenced to death, fairness mandates that those few who are sentenced to death should be comparable to others who are similarly sentenced, and worse than those who are not. Problems with the trial of Martin Grossman have been admitted by the appeals courts (while being called “harmless” one by one, but their cumulative effect was far from harmless) and in one case, a new law was passed to say that judges were required to do things differently from the judge in Martin’s trial. In today's system, the sentence of death depends on many factors other than the moral depravity of the defendant or the actual severity of the offense. Especially in the case of Martin Grossman, it seems that it came about because of many misunderstandings that could be carefully and dispassionately explained if Martin Grossman is given a 60-day stay for the preparation of a clemency petition.
Please sign the petition today to save the life of Martin Grossman:
Sunday, January 24, 2010
Eight men have been found innocent of the crimes that put them on Louisiana's death row. All were exonerated before they were put to death and ultimately freed from prison.
Most often, those exonerations came after it was revealed that prosecutors withheld evidence that was favorable to the defendant, relied on the testimony of a jailhouse snitch or used faulty eyewitness identification to gain a conviction.
Those men aren't alone.
Nationwide, 139 people sentenced to death since 1973 subsequently have been found innocent and released from death row, according to data provided by the Washington D.C.-based Death Penalty Information Center.
With 23, Florida leads the nation in death row exonerations. Illinois, Texas and Oklahoma take second, third and fourth, respectively. And Louisiana holds fifth place with two other states for the most death row exonerations in the country.
The reasons for these wrongful convictions vary, but advocates say the exonerations are evidence the country's judicial system is fatally flawed when it comes to the death penalty.
"We don't know how many mistakes have been made," said Richard Dieter, Death Penalty Information Center executive director. "It points to a danger that we may have missed some. It raises a number of concerns that innocent people may have been executed."
But death penalty supporters say the exonerations are proof the legal system works. Higher court review and a lengthy appeal process help root out those who are innocent and ensure only the guilty are put to death. Additionally, there are some crimes that are so heinous and some criminals who are so depraved that the only answer is to put them to death, they say.
"It seems to be the character and propensity of this particular person are deserving of more than just locking him up," Orleans District Attorney Leon A. Cannizzaro, Jr. said
While acknowledging some of the exonerated cited by Death Penalty Information Center likely are innocent, death penalty supporters insist the number of death row exonerations nationwide is distorted. They maintain the term innocence has been "redefined" to include individuals freed on a technicality or those not retried due to a lack of evidence. Actually innocent is different from legally innocent, they say.
"None of those exoneration categories establishes or even suggests actual innocence," death penalty supporter Dudley Sharp wrote in an article published at www.prodeathpenalty.com.
That notion is dismissed by opponents.
"Our system of justice from our founding is that the person is innocent until proven guilty," Dieter said.
"It's not a question of knowing absolutely what happened 20 years ago, but only that a person now has had their status of innocence restored. Certainly, those are not people who should be executed."
No single cause
Emily Maw, Project Innocence New Orleans director, said most exonerations don't have a single cause. Rather, a combination of factors paired with an overburdened and underfunded criminal justice system can lead to putting innocent people behind bars.
Among the causes of wrongful conviction:
Prosecutorial and police misconduct, such as withholding evidence or not revealing a witness was a paid informant.
Poor evidence handling and preservation, such as throwing away or careless processing.
Wrong witness identifications or using questionable witnesses to build a case, such as co-defendants who have a vested interest in pointing the finger at someone else.
Those problems, due in part to a "win at all costs" attitude among some statewide prosecutors, not only are resulting in wrongful convictions and increased jurisprudence costs but also are threatening citizens' safety, Maw said.
"It's not cost effective to incarcerate people who are innocent," said Maw, who was careful to point out that not all misconduct by prosecutors or people is willful. "If you incarcerate the wrong person, it's pretty likely that someone else is going to continue doing bad things."
In the case of the eight men exonerated, removed from Louisiana's death row and freed, most occurred after 1997. Some were freed because more sophisticated DNA testing was able to exclude them from the crime. Four of those exonerations — including the precedent-setting case of John Thompson — were the result of problem prosecutions out of the Orleans district attorney's office.
Cannizzaro candidly admits a former prosecutor was wrong when he withheld and destroyed crucial exonerating evidence in an effort to secure a conviction against Thompson for a carjacking in 1984 in New Orleans. The conviction kept Thompson from testifying on his own behalf and was used against him to obtain a death penalty verdict at a subsequent murder trial in 1985.
A judge later ruled that Thompson's rights were violated and ordered a new trial on the murder charge. A jury deliberated 35 minutes then found him not guilty in 2003. Thompson, who was able to testify and who maintained his innocence, was released from prison. He subsequently was awarded $15 million for his wrongful conviction. That verdict is being appealed by the Orleans district attorney.
"The Thompson case was a case that went terribly wrong, but it came out. It was exposed and we are paying a terrible price for that," said Cannizzaro, who was elected to office in 2008, more than two decades after Thompson was convicted. "Results like this cause people to lose confidence in this system."
But Cannizzaro and other district attorneys insist such examples are few — the majority of prosecutors don't break the rules to get a conviction. In the case of Thompson, a "rogue" junior district attorney acted outside the authority and scope of the office and without the knowledge of his supervisors, Cannizzaro said.
Prosecutors work hard to obtain legal and constitutional convictions. Cheating or unethical behavior is not tolerated and could result in a prosecutor being disbarred or prosecuted.
"The satisfaction you get is making sure the victim or the witness has their day in court," Cannizzaro said of a prosecutor's job. "It's not about winning at all costs. It's about doing what is fair and playing by the rules."
Locally, no Caddo, Bossier, Webster or DeSoto inmates have been exonerated from death row. However, the Louisiana Supreme Court ruled in November 2007 that prosecutors erred when they excluded a black man from a Caddo jury in the first-degree murder trial of Robert G. Coleman. As a result, his guilty verdict and death sentence were overturned. He faces a retrial in April for the killing of a retired Blanchard minister.
The death sentence meted out to a Caddo man accused of repeatedly raping a 5-year-old Shreveport girl was overturned in 2008 by the U.S. Supreme Court. That decision drew sharp criticism from Louisiana Gov. Bobby Jindal, who said the court overstepped its authority.
"One thing is clear: The five members of the court who issued the opinion do not share the same 'standards of decency' as the people of Louisiana," the governor said in a news release in 2008.
Other states react
Citing concerns about the reliability of convictions and gross flaws in Illinois' death penalty, Gov. George Ryan commuted the sentences of 167 death row inmates in 2003. Most received life in prison, but three were given 40 years with the possibility of parole. Ryan's actions came after 13 Illinois death row inmates were found to have been wrongfully convicted.
Likewise, New Jersey Gov. Jon Corzine commuted the sentences of eight death row inmates to life in prison in 2007 when he signed legislation abolishing the death penalty in that state. And in March, New Mexico Gov. Bill Richardson abolished the state's death penalty due to a lack of confidence in the justice system being the "final arbiter" when it came to meting out the death penalty for a crime.
Jindal, however, remains a strong supporter of the death penalty. "The most repugnant crimes deserve the harshest penalties, and nothing is more repugnant than the brutal rape of an 8-year-old child," he said in expressing outrage of the U.S. Supreme Court decision declaring Louisiana's death penalty for child rape law unconstitutional.
Even so, Maw said, simple reforms could reduce the possibility of wrongful convictions not only for those under a death sentence but also for others serving life in prison or other sentences. Statewide, a total of 25 people, including a Caddo man who served 22 years in prison for a rape he did not commit, have been found innocent.
Those reforms include:
Changing eyewitness identification procedures, such as photo lineups, to help reduce the incidence of false identifications while not reducing true identifications.
Requiring law enforcement to videotape or record an entire interrogation would ensure investigators were not leading a suspect to make a false confession.
Mandating police, prosecutors and criminal laboratories to retain evidence indefinitely would ensure that evidence would be there when new technology or testing that could prove innocence becomes available.
Louisiana's law allowing the death penalty for a variety of crimes is too broad, making it vulnerable to the discretion of prosecutors and judges who are all too aware of the political consequences of appearing soft on crime, death penalty expert Burk Foster said. Limiting the crimes and extenuating circumstances eligible for the death penalty possibly could decrease wrongful convictions and reduce the number of death row sentences overturned on appeal.
"States should only seek the death penalty in the most limited circumstances," said Foster, a former associate professor of criminal justice at the University of Louisiana at Lafayette who now teaches in Michigan. "It shouldn't be a panacea for any type of violent crime where someone gets killed."
Project Innocence New Orleans http://www.ip-no.org/
Death row exonerations in the U.S. http://www.deathpenaltyinfo.org/innocence-and-death-penalty/
Death penalty supporter Dudley Sharp's argument questioning the validity of death row exonerations http://www.prodeathpenalty.com/innocence.htm
Standards the Death Penalty Information Center used in compiling its listing of death row exonerations http://www.deathpenaltyinfo.org/innocence-list-those-freed-death-row/
January 24, 2010 /24-7PressRelease/ -- Reform Needed for Florida's Brutal Juvenile Sentencing Laws
Florida Tops Nation in Sentencing Juveniles to Life
Florida imposes the harshest penalties in the country on juvenile offenders. The state leads the nation in sentencing offenders under the age of 18 to life in prison without the opportunity for parole for non-homicidal crimes.
-A study conducted by Florida State University (FSU) determined that of the 109 juveniles currently serving life without parole sentences for non-murder crimes, 77 (or more than 70%) of them received their sentences in Florida courtrooms
-Of the 77 serving life without parole sentences, six of them were 14 or younger at the time they committed the crimes
-Florida currently is the only state in the US that sentences juveniles to life without parole for committing burglary, carjacking and battery
-There are 24 people serving life sentences in Florida for burglary crimes they committed as juveniles
The FSU study concluded that Florida was "unique" and "out of step" with the rest of the country in imposing such unforgiving life sentences on young offenders.
Constitutionality of Life without Parole Sentences under Review
Florida's draconian method of punishing juvenile offenders has not escaped national attention. Recently, the US Supreme Court reviewed the constitutionality of sentencing juveniles who commit non-murder crimes to life prison terms without the possibility of parole.
The Supreme Court heard oral arguments late in 2009 on the combined Florida cases Sullivan v. Florida and Graham v. Florida. In both cases, the juvenile was sentenced to life without parole for a non-murder crime. In Sullivan, the offender was 13-years-old at the time he was convicted of raping an elderly woman. In Graham, the offender was 17-years-old at the time he was convicted of armed burglary.
In Sullivan and Graham, the defendants are not asking the Court to reverse their sentences, but instead are requesting that they each be given an opportunity for review before the Florida Parole Commission. They are hoping the Court will extend its 2005 decision in Roper v. Simmons to their cases and find that imposing a life sentence without the opportunity of parole on juvenile offenders is a violation of the Eighth Amendment. In Roper, the Supreme Court held that it is a violation of the Eighth Amendment's prohibition on cruel and unusual punishment to sentence 15- and 16-year-olds to the death penalty.
Reform Needed Now in Florida
Regardless of the ultimate decision issued by the US Supreme Court in the Sullivan and Graham cases, Florida needs to reform its laws now.
No other state in the country imposes such a harsh penalty on such a young offender. Numerous studies have shown that juveniles do not share the same degree of culpability as adult offenders. In the Roper decision, the US Supreme Court noted that juveniles are less mature and more impulsive than adults and that their "irresponsible conduct is not as morally reprehensible" as an adult's.
These studies all suggest that when it comes to juvenile offenders, the justice system needs to not focus only on punishing them for their bad acts, but also on rehabilitating them and giving them a second chance.
In May 2009, US Rep. Bobby Scott (D-Va) introduced HR 2289, the Juvenile Justice Accountability and Improvement Act of 2009, into the House of Representatives. If passed, this law would require that certain juveniles sentenced to life in prison, in the federal system, receive a parole board review 15 years into their sentence. If not released on parole, then follow-up reviews would be scheduled for the offender every three years thereafter.
A similar measure should be undertaken in Florida. This way, those who were sentenced as juveniles to life sentences would receive an opportunity to prove that they had been adequately rehabilitated and would at least have a chance at receiving parole.
Such a system of review would be more meaningful and fair and could lead to other needed changes throughout the juvenile justice system. For example, because of the high probability of certain young offenders receiving a life without parole sentence, defense attorneys are less willing to take their cases to trial and risk their clients receiving the unforgiving sentence. Instead, they negotiate plea agreements. If there was a possibility of parole for these sentences, then more defense attorneys may be willing to take more juvenile cases to court, where they may receive a more favorable sentence.
It is imperative that those facing criminal charges as a juvenile seek out experienced legal representation. Florida courts impose life without parole sentences on more juveniles for non-homicidal crimes than any other state in the nation. An attorney experienced in defending criminal charges can help juveniles and their families navigate the complex Florida juvenile justice system and help them build the best possible defense against their charges.
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Published: Thursday, January 21, 2010 at 11:48 p.m.
BARTOW | Gary Michael Glisson Jr. told detectives that he hadn't been able to eat or sleep in the days following the brutal slaying of a 17-year-old former Haines City High cheerleader.
Jurors watched the taped statement Thursday of the 32-year-old Lake Wales man speaking with detectives Jan. 10, 2007.
"I can't keep lying," Glisson said, according to a transcript.
Glisson admitted that he knew about the plan to rob Angelia "Angel" Headrick and watched her be beaten and stabbed to death. Glisson said he helped get rid of evidence after she was killed.
But he insisted repeatedly that he did not participate in her attack.
"I never touched her," he said.
Glisson faces charges of first-degree murder, robbery, arson and conspiracy to commit robbery and murder. If convicted as charged, he could receive the death penalty.
Prosecutors say Glisson and two other men plotted to rob Headrick, who had been running her boyfriend's drug dealing business while he was in jail.
Last year, a jury found Eric Rodriguez, 23, of Haines City, guilty in Headrick's killing and recommended that he receive the death penalty. Rodriguez's sentencing has not yet taken place.
Prosecutors say Jarvis Mosley, 26, of Lake Wales, also took part in the fatal robbery.
Mosley accepted a plea deal for 15 years in prison, and agreed to testify against Rodriguez and Glisson. Mosley has testified previously that Glisson and Rodriguez attacked Headrick.
But throughout his interview with detectives, Glisson placed the blame for the attack solely on Rodriguez. He said Mosley did not participate in the attack, but Mosley knew about the robbery plan.
The black-and-white video footage was recorded inside an interview room at the Sheriff's Office facility at Bartow Municipal Airport.
Lt. Louis Giampavolo asked Glisson why he didn't try to stop Rodriguez, run away or report the killing.
Glisson said he was scared that Rodriguez would kill him.
He said Rodriguez convinced Headrick that he knew a person who would buy the rest of her drugs.
Headrick agreed to drive Glisson, Rodriguez and Mosley to meet the person. She was instructed to drive to an isolated location on nearby Tower Road.
Rodriguez told Headrick to stop the car, and he pretended to make a telephone call, according to Glisson.
Rodriguez suddenly hit Headrick and she struggled to get out of the car, and Rodriguez climbed over the front seat to go after her, Glisson said.
Rodriguez stabbed her multiple times with a knife, he said.
"I didn't count," Glisson said. "I know it was a lot. He just was stabbing and stabbing."
He recalled the "gargling" noise that the girl made as she fought for her last breaths of air in the middle of the road.
Rodriguez stole a quarter pound of marijuana and half an ounce of cocaine from under the front seat of the car, according to Glisson.
Rodriguez also took about $500 from her pocket, and a couple of gold necklaces and rings from her body, Glisson said. He said he didn't want anything, but accepted $200 from Rodriguez.
Her body was found Jan. 5, 2007, stuffed inside the trunk of her silver 2001 Mitsubishi Galant, which was set on fire in a Babson Park orange grove.
Glisson described in his statement how he set fire to the car and accidentally burned himself. Detectives found burns on Glisson's legs as they questioned him. Jurors reviewed photographs showing the burns.
Testimony is expected to continue Monday when the trial resumes.
Headrick's family, including her grandmother, Lois Headrick, has been attending the trial. Her mother, Tammy Latham, 38, died Jan. 10 of heart failure.
[ Jason Geary can be reached at firstname.lastname@example.org or 863-802-7536. ]
Thursday, January 21, 2010
BY KEYONNA SUMMERS
The family of a Melbourne woman murdered by her boyfriend's mentally ill twin brother shed tears and breathed a sigh of relief Wednesday as the killer was sentenced to two life prison terms without the possibility of parole.
Though attorneys for Travis Lee Edwards said appeals are forthcoming, victim Karen Muscovitz's parents, Arnie and Alice Muscovitz, said they are glad their ordeal since their daughter's death is over for now.
"It took all the weight off my shoulders," Arnie Muscovitz said after the sentencing. "Six years and 16 days, it's finally over. I can sleep now."
A jury found Edwards guilty in October of first-degree premeditated murder for the January 2004 strangling and beating death of 27-year-old Karen Muscovitz.
Edwards, 39 and a diagnosed schizophrenic, also was found guilty of kidnapping for holding hostage for two days a friend of Muscovitz's who dropped by the home the evening of the murder.
Since prosecutors waived the death penalty, the murder conviction meant an automatic life sentence for Edwards. The kidnapping charge carried a minimum sentence of 10 years.
Prosecutors on Wednesday dropped a charge of possession of a firearm by a convicted felon.
Defense attorneys had argued that Edwards was legally insane at the time of the incident, and believed that Karen Muscovitz was a spy with a mob organization trying to kill him and his sibling.
Edwards' brother and guardian, Brent Edwards, was in jail at the time of the killing.
"I thank you for the sentence," Edwards told Circuit Judge Charles Holcomb on Wednesday, before turning around to look back at his mother in the courtroom gallery as he was led out.
The case was fraught with competency issues that several times postponed the trial, hearings leading up to it and sentencing.
Defense attorney Kepler Funk said his firm will file documents within the next two weeks appealing several of the judge's orders.
"I hear juries speak loud and I'll hear this verdict for the rest of my life," Funk said. "I believe Travis belongs in Chattahoochee (state mental hospital) rather than a state prison."
The Muscovitzes, who estimate they spent more than $30,000 over the last six years traveling between Florida and Massachusetts for hearings, said they'll never forget the case either.
Edwards never showed remorse, instead using his time to speak to the judge during sentencing Wednesday to blast his lawyers, they said.
"This weekend is our 40th wedding anniversary, so this is a nice present," Alice Muscovitz said.
"I wish she was here to celebrate with us," she said. "She is."
Contact Summers at 242-3642 or email@example.com.
Prosecutors won’t pursue the death penalty for a man set to stand trial next week in connection with the July home invasion and shooting death of a West Melbourne man, court records show.
Attorneys are scheduled to begin picking jurors Monday in the case of Patrick Feeley, 28.
Feeley is one of four men charged in connection with the shooting death of 34-year-old Rusty Locke as part of a robbery related to a prescription drug ring.
A fifth man, Garrett Amble, was sentenced in October to nearly five years in prison after pleading guilty to second-degree felony robbery under a plea deal that requires him to testify against his co-defendants.
Police said six people, including three children, were visiting Locke's Idlewylde Circle home about 9 p.m. July 24 when masked gunmen broke in, fatally shooting him and critically injured another man in the house.
Feeley faces up to life in prison if convicted of first-degree felony murder with a firearm, attempted murder, armed burglary and robbery with a firearm.
By Sarah Lundy, Orlando Sentinel
3:15 PM EST, January 21, 2010
Convicted killer David Eugene Johnston may die by lethal injection after all.
The Florida Supreme Court Thursday lifted its stay, which delayed Johnston's execution last May.
No new execution date has been set yet.
Johnston, 49, was convicted for the 1982 murder of 84-year-old Mary Hammond, who was stabbed several times and strangled in her Orlando home.
In April, Gov. Charlie Crist signed Johnston's death warrant, prompting a slew of appeals.
The death row inmate won a last minute appeal, allowing authorities to conduct DNA testing on blood and the victim's nail clippings.
Three months later, the DNA results returned and confirmed Orlando police arrested the right man.
That sparked more appeals, including the 1987 clemency hearing was inadequate and his prolong time on death row should be considered cruel and unusual punishment.
The Supreme Court denied the appeal in a 36-page decision.
Johnston is being held on death row at Florida State Prison in Starke. His attorney, D. Todd Doss, was not available for comment.
Sarah Lundy can be reached at firstname.lastname@example.org or 407-420-6218.
A Pasco County man on death row for killing a state wildlife officer in 1984 will not be allowed to introduce a doctor's report on his mental state at the time of the murder.
Officer Peggy Park was killed after finding Martin Grossman, who was 19 at the time, and his 17-year-old friend in a remote wooded area near Brooker Creek Preserve.
When she tried to arrest them, Grossman struck her with a flashlight at least 20 times, took her gun and shot her.
Grossman was sentenced to death in the killing the 26-year-old officer.
Today, Grossman and his attorney, Richard Kiley, appeared before Judge Joseph Bulone asking to introduce evidence on Grossman's mental state at the time of the killing.
Last week Gov. Charlie Crist signed Grossman's execution warrant, which is scheduled to be carried out Feb. 16.
A trail at John Chesnut Park in northeast Pinellas is named after Park as a tribute to her sacrifice.
Kiley said Grossman was sentenced by a jury who knew nothing about his mental state.
Bulone denied the petition.
Monday, January 18, 2010
By P. SOLOMON BANDA
DENVER (AP) - Three people convicted of murder have been released from prison because their cases were tainted by a now discredited theory that bullets found at a crime scene could be linked to bullets found in possession of suspects.
Nearly five years after the FBI abandoned its so-called comparative bullet lead analysis, the FBI has yet to complete its review of nearly 2,500 cases where law enforcement used such evidence to investigate a case.
So far, the agency has found 187 cases where so-called comparative bullet lead analysis evidence was not only used in the investigation, but came into play at trial where FBI experts provided testimony. It has notified prosecutors in those cases where testimony from its experts "exceeds the limits of the science and cannot be supported by the FBI," one agency letter says.
At least three convictions _ that of a Colorado man who served 12 years in prison for a double slaying, a Florida man who served 10 years after being convicted of killing his wife, and an Oregon man convicted of a triple slaying _ have recently been overturned.
All three men are now free.
Comparative bullet lead analysis was based on the theory that lead bullets pick up trace elements such as copper, antimony, arsenic, bismuth and silver during manufacturing. When the soft metal is shaped into bullets and packaged, bullets in the same box would contain similar amounts of the trace elements, the theory went.
FBI lab technicians compared bullet fragments from a crime scene with bullets possessed by suspects. If the trace elements closely matched, prosecutors _ backed by FBI testimony _ would argue the suspects' guilt.
Defense attorneys say the analysis appeared to be a miracle of science: It required a small nuclear reactor, once housed at an FBI lab at the Hoover Building in Washington, D.C., and relied on the expertise of only a handful of qualified FBI agents.
FBI experts wowed jurors by explaining how gamma rays, energy released from bombarding a bullet with neutrons, could be measured to make a match.
"Sure, you have this whiz-bang, whipper-dipper machine that looks at all the elements of the universe, but it doesn't mean anything," said attorney Dave Wymore, a former director of the Colorado public defenders office who fought successfully to exclude such evidence in a triple-murder case and won an acquittal in 1999.
The FBI began the tests in the mid-1960s. It quit in 2005, after the National Research Council of the National Academy of Science concluded that while its methods of measuring trace elements were sound, its conclusions were flawed. Millions of other bullets could contain trace elements in identical quantities, the council said. That rendered the FBI's box-by-box conclusions meaningless.
FBI lab spokeswoman Ann Todd said the agency has reviewed about 2,000 cases and is waiting on information from prosecutors who may have used the bullet evidence at trial in the remaining 500 cases. In cases where an FBI expert testified, the agency is reviewing trial transcripts.
Cases where a defendant pleaded guilty aren't being reviewed.
In Colorado, attorneys for Tim Kennedy, convicted in 1997 for the double slaying in Colorado Springs, received an FBI letter in May 2008. The judge cited the discredited evidence, among other factors, in reversing Kennedy's conviction in April last year. He was freed in May.
Kennedy's attorneys, John Dicke and Kathleen Carlson, said testimony by FBI bullet expert Ernest Roger Peele added an air of credibility to what they called a weak case.
At first, investigators thought that the 1991 slayings of Steve Staskiewicz and his girlfriend, Jennifer Carpenter, were a contract "hit" to silence Carpenter, who was a victim and a witness in a sexual assault and kidnapping case.
When investigators couldn't tie Kennedy to two people suspected of ordering the hit, prosecutors developed the theory that Kennedy was desperate for money to buy drugs and allegedly killed his friends inside their trailer. A gun owned by Kennedy was used in the slayings. Kennedy testified that he had lent Staskiewicz three of his guns.
The defense conceded that the couple was killed by a gun and bullets belonging to Kennedy but argued he wasn't the killer. But jurors heard hours of testimony from the FBI's Peele, who said bullets recovered from the victims and bullets found in Kennedy's apartment were so identical that if they were "dropped on the floor, I couldn't tell which specimen they came from."
"The FBI guy was the determining factor," Dicke said. "It was the air of overwhelming credibility. Even the judge was impressed."
Peele, who conducted such tests for at least 15 years and testified in more than 150 cases, declined to comment when reached by The Associated Press.
El Paso County prosecutors are appealing the judge's ruling. Dan Zook, who prosecuted the case, declined to comment, though at a May hearing he argued that other evidence against Kennedy was overwhelming, including lying to the police about why his gun was the murder weapon.
Kennedy remains free on bail, while prosecutors appeal the reversal of his conviction.
In Florida, Jimmy Ates was released from prison in December 2008 after serving 10 years for the 1991 murder of his wife, Norma Jean Ates, in Baker. While other evidence helped win his release, the use of comparative bullet lead analysis "was really the lynchpin to get that case back into court," said Seth Miller of the Innocence Project of Florida.
A letter from the FBI was the determining factor in allowing Ates to reopen his case after he had exhausted his appeals. He is to be retried next year.
The FBI has agreed to notify attorneys with the Innocence Project, along with prosecutors, of any suspect cases. Attorneys at the Chicago law firm of Winston & Strawn are helping ensure the defendants learn of the discredited evidence.
"Somebody needs to be there to review those cases," said Miller, whose organization has received 24 letters from the FBI. "The reality is if you're an indigent person in prison, you may not even get that letter if it goes to the prosecutor."
His group isn't taking action in 12 cases where it determined prosecutors have overwhelming evidence of guilt.
"We're sort of taking one piece away and determining what it means," Miller said. "It's not always an easy calculus to figure out."
James Colaw, the division chief of the Clay County state attorney's office who will retry Ates, cited the risk of manipulations of the FBI's sweeping review.
"The analysis should be: Can we say that that evidence contributed to that conviction, and if that evidence was not used, would the outcome have been the same?" Colaw said.
Philip Scott Cannon of Salem, Ore., was freed most recently, on Dec. 18 of last year, after serving more than 10 years in prison for the 1998 fatal shootings of Celesta Graves, 24, and Suzan Osborne and Jason Kinser, both 26.
In that case, prosecutors hold out little hope that Cannon would be retried because exhibits from the trial could not be found.
"Polk County (Oregon) totally screwed this thing up," Graves' sister, Jennifer Murdock of Salem, told the (Salem) Statesman Journal last month. "It's basically a bunch of crap that the families have to go through all this again."
Sunday, January 17, 2010
Updated: 5:36 pm EST January 15, 2010
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VOLUSIA COUNTY, Fla. -- An inmate who killed a corrections officer at Tomoka State Prison was sentenced to death Friday.
Enoch Hall, 40, murdered Donna Fitzgerald in June 2008. A jury recommended Hall get the death penalty and, Friday, a judge agreed.
Hall's death sentence was handed down and he just stood there with his head hanging slightly. Earlier in the hearing, when his attorney asked him if he wanted to say anything to save himself, he just shook his head.
"I'm just so relieved. It's what everybody has wanted. It's the justice she deserves. It's shocking, it's almost surreal that it's actually happening," said Dana Shaure, the victim's sister.
Inside the courtroom, about two dozen corrections officers were sitting along with Fitzgerald's siblings and there were tears all around. Officers’ jaws were trembling as Fitzgerald's killer was sentenced to death.
The judge said the sentence was based in large part on the killing being cruel, cold and calculating.
Hall waited in a work shed that day in June 2008. Fitzgerald had to come find him and, when she did, he pulled out a sheet metal shank and stabbed her in the heart.
"The system had done all it could do for him in here. That was the next step," corrections officer Frederick Evins said.
Fitzgerald's family did not hold back in telling the judge what they thought Hall's sentence should be.
“Immediate death. Immediate. If it could be at noon time today, I’d be thrilled. I’d be ecstatic,” said Donald Shaure, the victim’s brother.
Hall's attorneys tried to save him by arguing he had taken some pills that day to get high and they affected him mentally. They also argued he had psychological problems and a low IQ.
The judge decided there wasn't strong enough evidence to support either idea and gave them no weight in deciding on the death penalty.
Investigators say last August, Humberto Delgado Jr. was pushing a shopping cart on N. Nebraska Avenue when Cpl. Roberts tried to question him. They say a struggle ensued and Delgado ended up overpowering and shooting Cpl. Roberts.
Cpl. Roberts' widow was in the courtroom today as the judge set aside two weeks for the October murder trial.
The Hillsborough State Attorney's Office is seeking the death penalty in the case.
DAYTONA BEACH, Fla. -- A Florida inmate has been sentenced to death for killing a Daytona Beach corrections officer.
A jury had recommended the death penalty for 40-year-old Enoch Hall in October, and a judge followed that recommendation on Friday. Hall was already serving two life sentences in the sexual battery and kidnapping of a 66-year-old woman.
Hall stabbed 50-year-old Donna Fitzgerald 22 times with sheet metal in 2008, the first fatal attack on a Florida guard in five years.
Fitzgerald was alone while supervising Hall and others in an inmate work program. An investigation determined Hall may not have been eligible for the program and Fitzgerald should've had a radio or body alarm to summon help.
The prison has since hired a new warden.
Friday, January 15, 2010
Trend toward fewer executions evident elsewhere in nation as well.Juries in Florida recommended 14 men die by lethal injection last year after hearing about their crimes and why the state should execute them.
The number is 10 fewer than were recommended for death in 2008, when 24 defendants were sentenced to die, according to figures kept by the Department of Corrections.
The decline continues a downward trend in the state's death sentences, mirroring what is happening across the country.
"Outside a few states, the death penalty is not a regular occurrence," said Richard Dieter, executive director of the Death Penalty Information Center, a nonprofit organization based in Washington that provides analysis about the death penalty.
A year-end study by the Death Penalty Information Center reported 106 death sentences nationwide, a 63 percent drop in the past decade.
No one can point to a single direct cause for the drop, saying it's a mix of the economy, a decline in violent crimes and juries' reluctance to vote for death. It could be more states with the death penalty have added the option of life in prison without parole.
Justin Heyne is the newest member of Florida's death row. His conviction last month in Brevard County for killing a Titusville family of three earned him two life sentences and a death-penalty sentence. It pushed the state's death-row population to 391. His death sentence stemmed from his murder of a 5-year-old girl.
"There is no justification for killing a 5-year-old," said Wayne Holmes, chief of operations for the State Attorney's Office, which handled the case. "If you are going to have the death penalty, those are the type of cases where it should be used."
The highest number of death sentences since capital punishment was reinstated in 1976 was in 2006, when 26 people were sent to death row. The state low came in 1979: two.
Like Florida, Texas has a reputation for populating its execution roster. But last year Texas also followed the national trend, tying its historic low for death sentences, with nine. It had nine in 2008.
The back-to-back lows show a dramatic decline for a state that averaged 34 death sentences a year during the 1990s, according to Texas news reports.
There are several theories about the decline of death sentences:
•Dieter said some jurors could be more reluctant to sentence someone to die because of exonerations in the past several years.
Last year, nine men, including one in Florida, were convicted of capital murder and then later cleared of the crime. That's the second-highest number of exonerations since the death penalty was reinstated 34 years ago.
Herman Lindsey walked away from Florida's death row in July after the state's Supreme Court tossed his 2006 conviction. He was initially sentenced to death for the murder of a Fort Lauderdale pawnshop worker. The high court found evidence presented at trial was legally insufficient to convict him and that the case against him was entirely circumstantial.
•Because life without parole is available, more juries may be settling for that. All states that have the death penalty have the option of life without parole, so jurors don't have to fear that a convicted killer could eventually go free, Dieter said.
•During the hard economic times, some states considered dumping the death penalty to save money. According to the center's study, 11 states had legislative proposals to repeal it in 2009.
Several studies published during the past decade show death-penalty cases can cost $2 million to $3 million per case.
New Mexico got rid of it. Connecticut came close, but the governor vetoed the bill, the study reported.
The center found that the cost kept some prosecutors from seeking it initially.
"The death penalty is an emotional and political response to crime," Dieter said. "On the practical level, it's being examined. Economic times make you look at the practical more."
Local prosecutors, however, say money doesn't play a part in their decisions. In Florida, prosecutors' budgets come from the state and not local counties, so they are not pressured.
"It would never be factor in deciding," said Randy Means, a spokesman for the Orange-Osceola State Attorney's Office, which is currently seeking death in eight pending homicide cases.
The rate of sentencing outpaces the number of executed in Florida. In 2009, two men were put to death.
Wayne Tomkins died Feb. 11. He was convicted in 1985 for murdering his girlfriend's daughter in Tampa.
John Marek was convicted in 1984 for raping and strangling a woman whose body was later found in a lifeguard tower in Broward County. Marek was executed Aug. 19.
Though state juries show a dip in deciding on death sentences, Florida Gov. Charlie Crist is still signing death warrants.
Earlier this week, he signed a Feb. 16 death warrant for Martin Grossman, who was convicted of killing a state wildlife officer 25 years ago in Pinellas County.
Grossman stands to be Florida's first execution of 2010.
TAMPA — Citing a prosecutor's misconduct, the Florida Supreme Court took the unusual step Thursday of vacating the death sentences of a triple murderer whose death warrant Gov. Charlie Crist signed last year.
Two separate juries found Paul Beasley Johnson guilty of gunning down a Polk County sheriff's deputy and two other people during a drug-fueled crime rampage in January 1981.
But in a harshly worded opinion, the court's 4-1 majority ordered a new penalty phase, finding that "the record here is so rife with evidence of previously undisclosed prosecutorial misconduct that we have no choice but to grant relief."
Justices ruled that the state induced Johnson to make incriminating statements to a jailhouse informant in violation of his right to counsel, then used that testimony at his trial despite knowing it was inadmissible.
They blamed the reversal squarely on Hardy Pickard, a former assistant state attorney who served as the original prosecutor in Johnson's case. Pickard's conduct also has been questioned in other death penalty cases.
"This is not a case of overzealous advocacy, but rather a case of deliberately misleading the court," the majority opinion penned by Justice James E.C. Perry said.
Justice Ricky Polston dissented.
Johnson, 60, was scheduled to die by lethal injection this past November. The governor signed his death warrant after Polk County Sheriff Grady Judd personally asked him to consider doing so at the August funeral of a Tampa police officer.
But Johnson still had an appeal pending. Saying Crist's decision put the Supreme Court in a difficult position, justices promptly stayed the execution to allow them time to consider the issues Johnson had raised.
The controversy over the informant's testimony wasn't new. Johnson's attorneys tried without success to keep it out of each of his three trials, one of which ended in a mistrial.
Defense attorneys argued that the informant, an experienced snitch who was transferred to a cell near Johnson's and took notes of their conversations, acted at the state's behest. A trial judge ruled that it was a close call but decided that police were passive recipients of the information.
Even the informant's subsequent concession that he had in fact been operating on instructions from the state failed to convince a judge to throw out his testimony, which included details of the killings and Johnson's plan to evade punishment by claiming he was insane when he committed the crimes.
So what changed? Enter Martin McClain, an appellate attorney who travels around the state handling death cases.
Over lunch with one of Johnson's attorneys a few years back, McClain mentioned how handwritten notes from prosecutor Pickard's files had played an important role in the appeals for two unrelated death cases.
In one case, a death row inmate went free after nearly 18 years after a judge's finding that Pickard withheld notes from interviews with key witnesses and kept police reports about the witnesses' conduct secret.
McClain offered to review the prosecutor's handwritten notes in Johnson's case.
Pickard's writings indicated that a sheriff's investigator told the informant "to make notes" and "to keep (his) ears open," contradicting previous testimony that the informant acted on his own, the justices ruled.
Justices said Pickard was aware of this contradiction at the time of the initial suppression hearing but used false testimony and misleading argument to convince the court to allow the informant to testify.
"It must be emphasized that in our American legal system there is no room for such misconduct, no matter how disturbing a crime may be or how unsympathetic a defendant is," the majority wrote. "Lawlessness by a defendant never justifies lawless conduct at trial."
Pickard could not be reached for comment Thursday. He retired in January 2009 after more than 35 years as a prosecutor in Polk County. The Florida Bar has never disciplined him.
"He was the straightest-shooting prosecutor you could ask for," said Polk State Attorney Jerry Hill. "I think the Supreme Court is off base."
Sheriff Judd issued a statement expressing his disappointment that "this cold-blooded murderer will get yet another day in court."
Eddie Burnham, 70, sounded more resigned. Johnson shot and killed his brother, Theron Burnham, after the deputy responded to the scene of one Johnson's murders. The other victims were William Evans, a cabdriver, and Ray Beasley, a man who had given Johnson a ride from a restaurant.
"It's getting tiresome," Burnham said of the appeals. "It's been quite a few years since he did all he did."
A man sentenced to death for the 1991 slaying of a 17-year-old Jacksonville high school senior will have a chance to argue that the sentence was unfair.
Ronnie Ferrell's conviction in the killing of Gino Mayhew was not overturned in a ruling released Thursday by the Florida Supreme Court, but the justices did agree that he should have a new sentencing phase. He would still get a minimum life sentence but could avoid the death penalty.
In 2006, Circuit Judge Charles Arnold threw out the penalty phase of Ferrell's 1993 trial. Ferrell argued he had ineffective council. Arnold agreed and the Supreme Court affirmed the decision.
Mayhew was killed execution-style and left in a truck at a Northside schoolyard, according to earlier reports in The Times-Union.
Ferrell and two others were convicted of first-degree murder.
Thursday, January 14, 2010
By Colleen Jenkins, Times Staff Writer
Posted: Jan 14, 2010 12:13 PM
TAMPA — The Florida Supreme Court vacated the death sentences Thursday of a Polk County triple murderer whose death warrant was signed last year by Gov. Charlie Crist.
Paul B. Johnson, 60, was convicted of gunning down a sheriff's deputy and two other people in 1981. Last summer, Polk County Sheriff Grady Judd personally asked the governor to consider signing Johnson's death warrant.
But Thursday, a majority of justices ordered a new penalty phase before a new jury, writing that "the record here is so rife with evidence of previously undisclosed prosecutorial misconduct that we have no choice but to grant relief."
Johnson was condemned to die Nov. 4 by lethal injection, but the court issued an indefinite stay of execution in October to give justices time to consider issues raised in the appeal.
Justices ruled that newly discovered evidence showed the state induced Johnson into making incriminating statements to a jailhouse informant, then used that testimony at his trial despite knowing that it was inadmissible.
"The reversal of the death sentences in this case is directly attributable to the misconduct of the original prosecutor," the majority opinion written by Justice James E.C. Perry said. "He knowingly presented false testimony and misleading argument to the court in an effort to convince the court that a jailhouse informant was not acting on
instructions from the state when he gathered information from Johnson.
"In fact, however, the informant was acting on instructions from the state, and this rendered his testimony inadmissible. The prosecutor knew this."
The majority found the prosecutor's misconduct compromised the integrity of the penalty phase of Johnson's trial.
"This is not a case of overzealous advocacy, but rather a case of deliberately misleading the court," justices wrote.
Colleen Jenkins can be reached at email@example.com
Court Vacates Johnson's Death Sentence
Scott Wheeler The Ledger
By Bill Rufty
Published: Thursday, January 14, 2010 at 11:33 a.m.
Last Modified: Thursday, January 14, 2010 at 11:33 a.m.
TALLAHASSEE The Florida Supreme Court today vacated the death sentence of triple murderer Paul Beasley Johnson and sent the matter back to Polk County for a new sentencing phase.
Judd: 'No Illusion' About Execution
Florida Supreme Court Blocks Polk Murderer's Execution
Document: Paul Beasley Johnson Stay Order
High Court Stays Paul Beasley Johnson's Execution
Lawyers Seek Execution Stay for Polk Murderer
Court Asked to Block Scheduled Execution
Fla. Supreme Court to Hear Appeal in Polk Death Row Case
Governor Signs Death Warrant For Polk Killer
Crist Signs Death Warrant for Murderer
Judd Goes Online to Urge Execution
However, the ruling does not mean that Johnson, sitting on death row for the 1981 murders of a Polk County Sheriff's deputy and two others, could not again be sentenced to death.
The court ruled on Johnson's attorneys' contention that errors by the prosecutors may have lead the jury into recommending death following his convictions, noting that , “the record here is so rife with evidence of previously undisclosed prosecutorial misconduct that we have no choice but to grant relief.”
The ruling said that Johnson “was induced” to make incriminating statements to a jailhouse informant in violation of Johnson‘s right to counsel. The court further criticized the prosecutor at Johnson‘s first trial “knowingly used false testimony and misleading argument to convince the court to admit the testimony.”
“It must be emphasized that in our American legal system there is no room for such misconduct, no matter how disturbing a crime may be or how unsympathetic a defendant is.”
The case now goes back to the 12th Judicial Circuit for a new sentencing phase before a new jury.
Wednesday, January 13, 2010
Published Tuesday, January 12, 2010
Gov. Charlie Crist signed a death warrant Tuesday for a man convicted of killing a state wildlife officer 25 years ago near the Brooker Creek Preserve.
Martin E. Grossman, 44, is set to be executed at 6 p.m. Feb 16.
The New Port Richey man was sentenced to death for killing Margaret E. "Peggy" Park on Dec. 13, 1984.
Park was patrolling the area in northeast Pinellas County that night when she came upon a suspicious-looking van. Two teens were inside, and a struggle ensued after Park found a pistol in the vehicle. One of the teens, Grossman, smashed a flashlight over the 26-year-old officer's head 20 to 30 times.
Then he wrested her gun away and shot her in the head.
Park's mother, reached by phone Tuesday, said the family was not yet ready to comment.
Others who knew Park said she has had a lasting affect on the community.
Gary Morse, a spokesman for the Florida Fish and Wildlife Conservation Commission, worked with Park on education programs.
"Peggy was not only a fine officer, but everyone liked her," he said Tuesday night. "We remember her fondly. There's still a lot of respect around here for her."
• • •
Park decided when she was 12 that she wanted to be a ranger.
"It will never be a job," she told a reporter not long before she died, according to newspaper archives.
Park was born and raised in Ohio. An animal lover, she collected dogs, cats, gerbils and fish as a child. She got her bachelor's in natural resources and wildlife management from Ohio State University in 1981.
Shortly thereafter, she landed her first job — as a wildlife officer in Pinellas County.
With two dogs and two cats, she made her home in a mobile home park near Brooker Creek.
"She was doing what she wanted, and she was doing it very well," her mother, who shares the same name, told the St. Petersburg Times days after her daughter's death in 1984. "She was happy in her job. She blossomed when she came to Florida."
By the time Park encountered two Pasco County teenagers on that December night 25 years ago, she'd had two years of service at the agency behind her.
The petite woman, about 5 feet 4 and 115 pounds, also had earned a reputation as a staunch protector of the environment. The job's dangers didn't deter her.
The night she died, Park was patrolling the woods she loved when she came across Grossman.
The 19-year-old, who was on probation, and his friend had a stolen gun.
After Park discovered the weapon, Grossman begged Park not to turn him in.
As Park made her way back to her car to call in the report, Grossman, who was twice her size, attacked. Park got off a shot, but Grossman got the gun away from her. He left her body just north of a clump of oak trees near the preserve.
Grossman was arrested less than two weeks later and sentenced to death a year after that.
The other person with him that night, 17-year-old Thayne Taylor, was convicted of third-degree murder and served nearly three years in prison before being released into a supervised program.
If Grossman is executed, he will be the fourth person to die for a Pinellas County murder since the modern death penalty began in Florida in 1979. The last person to die for a Pinellas murder was Amos King in 2003.
Since 1979, 68 people have been executed in Florida. Currently, 391 people sit on the state's death row.
• • •
Park's death spurred several memorials through the years.
A few years after her death, the county named a nature trail after her at John Chesnut Sr. Park in East Lake.
In 2007, a permanent stone marker was placed where she died. Park has no official grave. After she died, her ashes were scattered over an eagle's nest she helped protect.
Times researchers Shirl Kennedy and Caryn Baird contributed to this report. Kameel Stanley can be reached at firstname.lastname@example.org or (727) 893-8643.
When an airplane falls from the sky or a train derails, National Transportation Safety Board investigators swoop in to the crash scene to figure out what went wrong, to try to make sure the tragedy never happens again. Yet when an innocent person is wrongly convicted and spends decades in prison, the American criminal justice system has no similar mechanism to determine what went wrong and prevent future injustices.
That’s the rationale for establishing innocence commissions advocated seven years ago by Barry Scheck and Peter Neufeld, founders of the national Innocence Project. Since then, innocence commissions have been established in Connecticut, Illinois, New York, North Carolina, Pennsylvania, Texas, and Wisconsin.
Now it’s time for Florida to create an innocence commission, too, say a group of Florida lawyers, including former Justices Harry Lee Anstead, Gerald Kogan, and Joe Hatchett; former ABA Presidents Martha Barnett and Sandy D’Alemberte; and former Florida Bar Presidents Hank Coxe and John DeVault.
In December, 68 lawyers filed a petition at the Florida Supreme Court for a rule establishing an “Actual Innocence Commission.”
“The purpose of the commission would be to investigate the circumstances of cases where actual innocence of a crime has been demonstrated and to develop recommendations for reforms to reduce wrongful convictions,” according to the petition filed by D’Alemberte, former Florida State University president and law school dean, now on the board of directors of the Innocence Project of Florida.
D’Alemberte envisions the commission would address “potential reforms in court procedures, improvements in attorney training, consideration of evidence rules, development of new ethical standards, or other steps to reduce the wrongful convictions,” as recommended by the 2006 ABA Florida Death Penalty Assessment Report.
As grounds for creating the commission, D’Alemberte points to at least 11 innocent Florida citizens convicted and wrongfully imprisoned: Orlando Boquete, Larry Bostic, Alan Crotzer, Cody Davis, Wilton Dedge, Luis Diaz, William Dillon, Chad Heins, Juan Melendez, Frank Lee Smith, and Jerry Frank Townsend.
After the petition was filed, a 12th man — 54-year-old James Bain — was freed December 16, after new DNA test results demonstrated Bain’s innocence of a 1974 Lake Wales kidnapping and rape of 9-year-old boy. According to the Innocence Project of Florida, Bain’s 35 years in prison is the longest time served by any of the 246 DNA exonorees nationwide.
“We really are just scratching the surface with the DNA cases and other people wrongfully convicted that don’t have the benefit of DNA to prove their innocence,” said Mike Minerva, the new CEO of the Innocence Project of Florida.
“Some factors that lead to wrongful convictions exist in many other cases. This is the purpose of the petition. The aim is to uncover all those factors that have contributed to wrongful convictions: particularly eye witness identification, jailhouse snitch testimony, and coerced confessions or false confessions.”
As Mark Schlakman, chair of the board of the Innocence Project of Florida, said: “Florida has the dubious distinction of exonerating more death row inmates than any other state. Beyond death penalty cases, Florida, by way of DNA evidence, has exonerated many individuals who are serving very lengthy sentences of crimes they didn’t commit. There hasn’t been any comprehensive review to determine why these miscarriages of justice take place.”
If the petitioners should prevail, they want the Supreme Court to use its rule-making powers to establish a commission similar to the North Carolina Actual Innocence Commission.
“Such a commission should not require major resources because it would draw on the services of many people who already hold office,” D’Alemberte argues, pointing to the precedent of the Florida Supreme Court commissions that studied racial and gender bias in the justice system that has continued through the Standing Committee on Fairness and Diversity.
D’Alemberte told the News : “I do not think the commission will be very expensive, and it could be funded with a modest appropriation from the Legislature, by the Bar, the Bar Foundation, or even, as in New York, by private lawyers. If the court expresses interest in doing this, we can all get to work on funding sources. I believe that the Legislature, through its staff and/or OPPAGA (Office of Program Policy and Government Analysis), may be willing to help out, but a signal from the court may be necessary to get this in motion.”
The petitioners hope the court will point out to the Legislature that significant savings could be achieved through reform.
“It’s really a question of how Florida cannot afford to do this,” Schlakman said. “The most compelling aspect is that innocent lives are being stolen, and when these cases are identified, Florida taxpayers bear the burden of compensating these individuals for the years they have lost. It clearly doesn’t make them whole, but it’s the very least of what the State of Florida can do, not to mention the costs taxpayers underwrite to maintain these innocent people in custody for years.”
As D’Alemberte argues to the court: “Common sense and a commitment to improving judicial administration support the petition.”
— Courtesy Florida Bar News
Saturday, January 9, 2010
By Gary Blankenship
To 12th Circuit Chief Judge Lee Haworth, it’s a “perfect storm.”
The legal gale led to Haworth appointing a Manatee County attorney, against his will, to represent a defendant in a gang-related RICO case. The attorney, Gregory Hagopian, said taking the case is unfair to his other clients, could bankrupt him, and close his law practice.
Judge Haworth, in his order, declared the state law setting compensation for private conflict counsel unconstitutional and ordered the Justice Administrative Commission to pay Hagopian $110 an hour for his involuntary work, instead of the $75 set by state law.
But Hagopian, a sole practitioner who splits his practice between criminal defense and personal injury and is a former president of the Manatee County Bar Association, said that still might not save his practice. With amicus support from the Florida Association of Criminal Defense Lawyers, the Florida Association for Women Lawyers, and the Bar’s Criminal Law Section, he has appealed Judge Haworth’s order to the Second District Court of Appeal. The American Civil Liberties Union has filed its own amicus brief.
Although the JAC has not filed a brief in Hagopian’s case, it has filed a writ in another case where Haworth ordered attorney Joseph Campoli to represent another defendant and be paid $110 an hour. The JAC has contested the rate and also Haworth’s order that Campoli could collect interim payments before the case is finished.
That, too, is pending at the Second DCA.
“I’m not on the court appointment list. I haven’t signed a contract [with the state to do indigent conflict representation]. I haven’t asked to be a conflict counsel. I was shocked,” Hagopian said of his appointment last July. “I hope that this brings the issue to light so that the Legislature will reconsider and properly fund conflict attorneys and fund indigent representation.”
It’s also more personal than debating legal niceties for Hagopian.
“In order to effectively represent this person . . . I’d basically have to do nothing for the next year but represent this person against my will, and I choose not to,” he said. “To effectively represent him, I would have to basically shut down my practice.”
The case is attracting attention beyond and 12th Circuit and Second DCA, and some are saying it could be a harbinger for other parts of the state where PDs and criminal conflict and regional civil counsels may be overwhelmed with clients. (See sidebar story.)
At the Bar Criminal Law Section October 23 court funding budget summit, section Chair Donnie Murrell said of the cases, “It’s a perfect description of the financial disasters that are facing the criminal justice system if we don’t get some adequate financing.”
According to people involved in the Hagopian and Campoli cases and court documents, here’s what happened: The backdrop was set in 2007, when the Legislature passed SB 1088, which among other things cut the compensation for private attorneys who take criminal cases when public defenders have conflicts. Fees for first degree felonies were set at a flat $2,500, although if a judge found exceptional circumstances, the lawyer could be paid $75 an hour. Private attorneys were required to sign up for registries and sign contracts with the Justice Administrative Commission agreeing to abide by the fee limits. Interim billing was also banned; attorneys would not be paid until a case was complete, which was also when it would be determined whether the case was extraordinary and would qualify for the $75-per-hour rate.
The Legislature also created the five Criminal Conflict and Civil Regional Counsel offices to handle, among other things, conflict cases from public defenders. Those were expected to reduce by 80 percent the number of conflict cases going to private attorneys.
The net result is private attorneys left the conflict registries in droves. According to documents filed in the case, the number of conflict attorneys in the 10th Circuit dropped from 115 to 46, of which 35 are qualified to handle felonies. In Manatee County, the number went from 16 to five. Other jurisdictions experienced similar declines.
Then earlier this year, the Attorney General’s Office filed two gang-related RICO cases in Manatee County, the first involving 14 defendants and the second 12. That meant after the public defender took one defendant and the local CCCRC office took one, 12 private attorneys were needed in the first case and 10 in the second — and only five were available on the registry.
Or as Judge Haworth put it in an order in Hagopian’s case, “[T]here were more defendants than there were government or registry attorneys available to represent them. . . . What has developed in Manatee County is a perfect storm: Too few lawyers to provide services to clusters of defendants charged in gang-related cases. After appointment of the public defender, regional counsel, and the five remaining registry attorneys, the system breaks down when the number of attorneys needed to represent indigent co-defendants in Manatee County exceeds seven.”
What Judge Haworth did was first declare the fee limitations passed in 2007 unconstitutional, including the ban on interim payments and the $75 hour cap. Then he went looking for additional defense attorneys.
When he couldn’t find enough, Haworth created “an Involuntary Appointment List.”
“Attorneys placed on the Involuntary Appointment List by the Chief Judge were not vetted for experience, expertise, or with regard to whether the appointment would create a financial hardship. In fact, their particular competence or fitness to represent defendants charged with first degree felonies was not a consideration for eligibility,” the judge wrote in his order in Hagopian’s case. “Attorneys who limit their practice to traffic and misdemeanor matters and never tried a case to a jury were lumped together with lawyers experienced in the most complex criminal matters.”
As part of those appointments, Campoli was involuntarily appointed to represent a defendant in March; Hagopian was named to represent defendant Terry Green in July. He was actually the third lawyer appointed to Green; the first cited a lack of experience in withdrawing and the second no longer practiced criminal law.
Campoli represented his client, reaching a plea agreement, which will require more work by the attorney, in a little over 100 hours. But the JAC has refused Judge Haworth’s order to pay him and contested the $110 per hour fee. That has been appealed to the Second DCA.
Hagopian, on the other hand, has only done minimal work for Green and has tried to get out of his appointment. Judge Haworth denied his initial motion to withdraw and that has been appealed to the Second DCA, amid a flurry of amicus briefs and other filings.
“Judge Haworth’s actions have an absolutely chilling effect on the criminal defense community because he has the ability to arbitrarily shut down a person’s practice by being appointed to one of these cases, because you get nothing for it,” Hagopian said. “You have an inevitable conflict of interest with your client. That’s where the ACLU [in its amicus] is coming from, and I can absolutely understand that.”
But he added he does not blame the judge for the order, saying Haworth had to find counsel for the unrepresented defendants. Rather, the blame falls on the Legislature for not providing enough resources.
“The Legislature . . . isn’t [fully] funding representation of the indigent,” Hagopian said. “Nowhere in the Constitution does it say a local lawyer has to shut down their practice to make sure a person is represented properly. What it says is the government will provide you with an attorney free of charge, and that is not being done right now.”
The case, he said, will not require an inconsiderate amount of work. The indictment lists 382 witnesses, 167 police reports, and nine predicate acts leading up to the two RICO counts, Hagopian said. Some estimates are it will take around 500 hours to prepare for the case, and with other preparations and a multi-week trial, the total time could easily exceed 1,000 hours.
Campoli said he’s had double frustration. Even though he’s done most of the work needed to represent his client, the fee was much lower than he normally would be charged — and he hasn’t been paid.
In finding the compensation law unconstitutional, Haworth ordered that the involuntarily appointed attorneys could get interim payments for each 40 hours of work performed. That way, they wouldn’t have to wait months or even more than a year to get paid for being impressed on a case that could consume a considerable part of their professional lives.
“Whatever money I get paid in this case, it’s going to fall thousands and thousands short of what I should have,” Campoli said. “It’s a $300-an-hour case. . . . It’s a $50,000 to $60,000 case at the low end, and I know a number of attorneys who wouldn’t want to deal with it for less that $80,000 to $100,000.”
(In his order denying Hagopian’s attempt to withdraw, Judge Haworth noted that Hagopian testified he would have charged $100,000 for the case because of its major impact on his practice.)
Nonetheless, the JAC has denied Campoli’s interim request for almost $10,000 for his work. He noted that it’s likely to be next spring before all the work on the case is finished.
He does not blame either the judge or the JAC for his problems, saying they are limited by conditions or, in the JAC’s case, by the laws and budgets it operates under.
“Judge Haworth is in a very bad position. He’s got to get somebody on board [to represent the RICO defendants]. People deserve to have an attorney. It’s constitutional that people receive proper representation. The problem is when you force someone to take a case you don’t want, then pay me right, compensate me for taking a case that I don’t want to take,” Campoli said. “The problem is back it up with money. That’s my opinion.”
Judge Haworth, in his order keeping Hagopian as defendant Green’s attorney, summed up the difficulties. He noted that Hagopian’s overhead is $79.12 an hour, or $4.12 an hour less than the JAC allows for extraordinary cases — one of the reasons the judge cited for ordering $110-an-hour compensation and allowing interim payments.
“From Mr. Hagopian’s perspective, not only is he being forced to accept a blockbuster case that may cause him to lose new and existing paying clients, thereby raising the specter of insolvency, but from what he has heard about the operations of the JAC, beleaguered by budget cuts, staff reductions, and short funding of due process costs by the Legislature, he has little confidence that his invoices for services and costs will be promptly reviewed and approved. If he has to fight the state bureaucracy and suffer routine delays for payment, he fears he will not be able to maintain the $12,000 monthly income stream required just to keep his office doors open,” Judge Haworth wrote.
“These are legitimate and practical concerns. Yet the stark fact remains: Terry Green needs a lawyer and constitutional imperatives compel the judiciary to devise the means to acquire one for him.”
With both Hagopian’s and Campoli’s cases now on appeal, the paperwork is flowing into the Second DCA.
In Campoli’s case, the JAC Assistant General Counsel Christian Lake filed a certiorari petition saying the agency must follow state law, despite Haworth’s ruling on paying the attorney for his work. And that means no interim payments and no determination that the work was extraordinary until it is completed — and then payments must be no more than $75 per hour. That rate is more than conflict attorneys in the 12th Circuit got before the 2007 law was passed, he noted. The agency also argued that it may owe Campoli nothing, because he declined to sign a JAC contract.
That writ also noted that the agency, because of staff cutbacks, is not set up to handle billings at 40-hour intervals. The JAC asked that the compensation be limited to $75 per hour, that billing be no more than once every six months, and that Campoli not be paid until he signs a contract with the JAC.
Lake City attorney D. Todd Doss, who is representing Hagopian in his appeal, noted Hagopian has already lost business from the appointment because he has been out of the office working on the case when prospective clients called. Doss labeled the appointment as forced servitude and punitive, since not all lawyers are subject to the appointment.
He also said it created a conflict.
“Because competently representing Mr. Green is directly adverse to Hagopian’s economic well-being, every day he faces the Hobson’s choice of providing ineffective assistance of counsel or suffering financial ruin. . . ,” Doss wrote. “Forcing Hagopian to represent Mr. Green pursuant to the order creates an irreconcilable conflict of interest between attorney and client and will almost certainly give rise to claims by Mr. Green that he was denied his Sixth Amendment right to conflict-free counsel.”
He added: “This case is an abject example of the way in which the statutory fee structure has led to a crisis in indigent defense in Florida. The flat fees for court-appointed work have been lowered to such an extent, and the interim payments have been removed so as to make it virtually impossible for sole practitioners to take on court-appointed work where cases are likely to involve extensive representation. The result is the need for involuntary appointments in this case and others, which allow the state to escape its duty to fund the indigent defense system while coercing attorneys into resolving cases quickly so as to avoid financial ruin. The result is an inescapable conflict of interest.
“Mr. Green should not have to sacrifice his Sixth Amendment right to conflict-free counsel, and Hagopian should not have to face financial ruin to fulfill his ethical duties under The Florida Bar rules and the Constitution to offset budgetary deficiencies. If the government chooses to avail itself of complex RICO legal tools to prosecute crime, it must, quite simply, pick up the tab. If budgetary constraints prevent it from doing so, it should adjust its prosecutions accordingly.”
Gainesville attorney Sonya Rudenstine, who represents the Criminal Law Section, FACDL, and FAWL in their amicus brief, also cited the lack of government funding and the resulting problems. (Judicial members of the section’s executive council abstained from voting on the amicus issue, since it is a matter pending in the court system.)
“The broader problem, however, is that the government, by underfunding the indigent defendant system, effectively has required the courts to invoke their inherent authority to provide counsel for the accused in criminal cases by appointing a specific class of attorneys involuntarily. By design, the court’s solution to the impending crisis does not contemplate that the burden of indigent criminal defense will be borne, even in part, by civil attorneys in Florida,” Rudenstine wrote. “Although this focus on self-identified criminal defense attorneys is crafted to protect defendants’ right to effective assistance of counsel in criminal proceedings, Florida case law and the equal protection clause of the Fifth Amendment prohibit it.”
She also argued that, “By massively slashing funding for indigent defense, the government has abdicated its responsibilities under the Sixth Amendment. The courts should not be in the position of ‘enabling’ this failure by massing the burden to attorneys who may often be incapable of bearing it. . . . [T]he solution settled upon here is unjust. Not only does it unduly burden Mr. Hagopian with a responsibility that could place him at odds with his ethical and professional responsibilities, it stands as precedent for spreading that burden to others equally ill-equipped to bear it in the criminal defense bar, thereby sacrificing the constitutional rights of the defendants in the process.”
The ACLU of Florida, represented by Maria Kayanan, filed its brief without aligning itself with any party, but argued that Hagopian should be relieved of the representation because the most important concern is protecting defendant Green’s Sixth Amendment rights.
Kayanan noted the difficulties created for Hagopian by his involuntary appointment, including the conflict between his practice and exiting clients, and his duty to competently represent Green.
“This is undeniably an intolerable position for Mr. Hagopian. It is even more intolerable for Mr. Green; as this conflict swirls around him, he is denied his Sixth Amendment right to counsel,” Kayanan wrote. “. . . . Defendant is entitled to an attorney whose loyalties are undivided, who agrees to represent him, and who can provide effective representation at every crucial state in the proceedings. Instead, five months after Terry Green was indicted in this sprawling RICO prosecution, the third attorney considered for appointment is trying to free himself of being shackled to Defendant.”
She concluded: “This case represents the failure of what was once a functioning system for ensuring that indigent defendants did not surrender their Sixth Amendment rights to budget shortfalls. The ACLU urges this court to grant certiorari and provide clear guidance to the bench and bar regarding their respective obligations under the United States and Florida Constitutions. Should no willing counsel be found, then the charges against Defendant should be dismissed without prejudice.”