Wednesday, July 27, 2011


Modified: 2011-07-06 12:21:06



NO. SCll -1326



NEAL A. DUPREE Capital Collateral Regional Counsel-South SUZANNE KEFFER Chief Assistant OFFICE OF THE CAPITAL COLLATERAL REGIONAL COUNSEL-SOUTH 101 N.E. 3rd Avenue, Suite 400 Ft. Lauderdale, Florida 33301 (954) 713-1284 COUNSEL FOR MR. VALLE

INDEX TO APPENDIX DOCUMENT EXHIBIT Motion to Disqualify filed 7/5/11 .............................................. A Copy of CD of recorded proceedings held 7/1/11 and note provided by the Administrative Office of the Courts, 11 th Judicial Circuit. ................................................................... B Affidavit of Attorney Suzanne Keffer ....................................... C Affidavit of Attorney Neal A. Dupree ....................................... D 2







The Defendant, MANUEL VALLE, by and through his undersigned counsel, hereby moves the Honorable Jacqueline Hogan Scola, to disqualify herself from presiding over Mr. Valle's postconviction proceedings, and from any other proceedings required in this action, due to the appearance of impropriety. Mr. Valle files this motion pursuant to Rule 2.330 of the Florida Rilles ofIudicial Administration in order to protect his rights granted by the due process and equal protection clauses of the Fourteenth and Eighth Amendments to the United States Constitution, and the corresponding provisions of the Florida Constitution. If Judge Jacqueline Hogan Scola disqualifies herself, Mr. Valle moves that his case be assigned to a judge by random selection. Mr. Valle states the following grounds in support of his motion: I. Mr. Valle is an indigent Florida inmate under sentence of death. On June 30, 2011 Governor Rick Scott signed a death warrant. Mr. Valle's execution is scheduled for August 2, 2011. 2. Mr. Valle learned for the first time on July 1, 2011 that Judge Jacqueline Hogan Scola was assigned to his case for purposes of litigating the death warrant in circuit court.

3. Mr. Valle was charged by indictment dated April 13, 1978, in Dade County, Florida with one count of fIrst-degree murder, one count of attempted fIrst-degree murder, and one count of possession of a fIrearm by a convicted felon. Mr. Valle was found guilty and sentenced to death, but his convictions and sentences were reversed by the Florida Supreme Court. Valle v. State, 394 So. 2d 1004 (Fla. 1981). 4. Mr. Valle's second trial in 1981 resulted in his convictions and a sentence of death. On appeal, the Florida Supreme Court affIrmed. Valle v. State, 474 So. 2d 796 (Fla. 1985). Mr. Valle's death sentence was vacated by the United States Supreme Court. Valle v. Florida, 476 U.S. 1102 (1986). On remand from the United States Supreme Court, the Florida Supreme Court vacated Mr. Valle's sentence of death and remanded for a jury resentencing. Valle v. State, 502 So. 2d 1225 (Fla. 1987). 5. The resentencing was conducted in 1988. Mr. Valle was again sentenced to death. On appeal, the Florida Supreme Court affirmed. Valle v. State, 581 So. 2d 40 (Fla.), cert. denied, 502 U.S. 986 (1991). 6. Mr. Valle thereafter sought postconviction relief pursuant to Fla. R. Crim. P. 3.850 which was summarily denied by the trial court. The Florida Supreme Court remanded for an evidentiary hearing. Valle v. State, 705 So. 2d 1331 (Fla. 1997). On remand, the circuit court denied relief. The Florida Supreme Court affirmed that order. Valle v. State, 778 So. 2d 960 (Fla. 2001). The Florida Supreme Court subsequently denied a two petitions for state habeas corpus relief. Valle v. Moore, 837 So. 2d 905 (Fla 2002); Valle v. Crosby, 859 S02d 516 (Fla. 2003), cert. denied, 541 U.S. 962 (2004). 7. The Honorable Jacqueline Hogan Scola was employed by the Office of the State Attorney, Eleventh Judicial Circuit, from 1982 to 1995. Judge Scola's employment spanned the 2

relevant time periods of Mr. Valle's 1988 resentencing and most of his initial state postconviction proceedings. As such, Judge Scola was employed by, and worked with, the very parties that were and are urging that the State of Florida put Mr. Valle to death. 8. On Friday, July 1, 2011, Judge Scola, with counsel for the State present, contacted the Office of the CCRC-South to inquire why counsel for Mr. Valle was not present for a previously-scheduled hearing. Because undersigned counsel was not available, 1 Capital Collateral Regional Counsel Neal A. Dupree took the Court's call. The Court indicated that CCRC-South had been contacted the previous evening and advised that a hearing would take place. Undersigned counsel and additional staff were at the CCRC-South office late into the evening on June 30, 2011, and received no notice by phone, fax or e-mail of any hearing being scheduled. 9. The Court then advised that she had been appointed to hear this case, for which a death warrant had been signed, involving a "cop killer.,,2 It is unlmown to counsel how, or to what extent, Judge Scola learned of the facts of this case in the hours prior to the July 1,2011, hearing. It is unclear to what extent Judge Scola had contact with the State on June 30 and Mr. Valle fears it may have been more than mere scheduling, particularly given the fact that undersigned received no phone call, facsimile or email regarding the "scheduled hearing." However, it appears from Judge Scola's choice of the inflammatory term "cop killer" to describe the Defendant that Judge Scola is prejudiced against him. 10. Given Judge Scola's history as a prosecutor and colleague of the attorneys who have sought his imminent execution, and the nature of the comments Judge Scola has made upon 1 Undersigned counsel's three year old daughter was having surgery on the morning of July 1,


2 Undersigned counsel has requested on the date of filing this motion that a transcript of the July

1, 2011 hearing be transcribed immediately.


being appointed to hear his case, Mr. Valle has a concern that, no matter how fair-minded any judge might be, this situation results in the appearance of impropriety. Mr. Valle is in fear that he cannot receive a fair hearing before Judge Jacqueline Hogan Scola. See "Attachment A" (Affidavit of Manuel Valle). MEMORANDUM OF LAW Mr. Valle is entitled to full and fair Rule 3.851 proceedings. Holland v. State, 503 So. 2d 1354 (Fla. 1987); see also Easter v. Endell, 37 F.3d 1343 (8th Cir. 1994). This includes a fair determination of the issues by a neutral, detached judge. The circumstances of this case are of such a nature that they are sufficient to warrant an objectively reasonable fear on Mr. Valle's part that he would not receive a fair hearing. Suarez v. Dugger, 527 So. 2d 191, 192 (Fla. 1988). Because of the fact Judge Jacqueline Hogan Scola worked for and with the State Attorney's Office while it prosecuted Mr. Valle's 1988 capital sentencing phase and subsequent postconviction proceedings, coupled with the prejudicial comments made by Judge Scola on July 1,2011, "a shadow is cast upon judicial neutrality so that disqualification is required." Chastine v. Broome, 629 So. 2d 293, 295 (Fla. 4th DCA 1993). In capital cases, the trial judge "should be especially sensitive to the basis for the fear, as the defendant's life is literally at stalce, and the judge's sentencing decision is in fact a life or death matter." Livingston v. State, 441 So. 2d 1083, 1086. Once a litigant files a timely, legally sufficient motion, the judge "shall immediately enter an order granting disqualification and proceed no further in the action." Fla. R. Jud. Admin. 2.330(f). The instant motion is timely filed pursuant to Rule of Judicial Administration 2.330(e) in that Judge Jacqueline Hogan Scola was assigned to Mr. Valle's case only after the death warrant was signed on June 30, 2011. 4

The law does not require the Defendant to show that Judge Jacqueline Hogan Scola is actually biased or would be absolutely unable to fairly judge this case. Rather, "[tJhe question 1 of disqualification focuses on those matters from which a litigant may reasonably question a 1 judge's impartiality rather than the judge's perception of his ability to act fairly and impartially." State v. Livingston, 441 So. 2d 1083, 1086 (Fla. 1983) (emphasis added). Courts must avoid the appearance of impropriety even though the requirement" 'may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties,' but due process oflaw requires no less." Taylor v. Hayes, 418 U.S. 488, 501 (1974) (citing In re Murchison, 349 U.S. 133, 136, (1955)). The United States Supreme Court recently reiterated that "[i]t is axiomatic that '[a] fair trial in a fair tribunal is a basic requirement of due process.'" Caperton v. A. T. Massey Coal Co., Inc. 129 S. Ct. 2252, 2259 (2009) (quoting In re Murchison, 349 U.S. 133, 136 (1955»). The Court has long recognized the basic constitutional precept of a neutral, detached judiciary: The Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases. This requirement of neutrality in adjudicative proceedings safeguards the two central concerns of procedural due process, the prevention of unjustified or mistaken deprivations and the promotion of participation and dialogue by affected individuals in the decision making process. The neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law. At the same time, it preserves both the appearance and reality of fairness, 'generating the feeling, so important to a popular government, that justice has been done,' by ensuring that no person will be deprived of his interests in the absence of a proceeding in which he may present his case with assurance that the arbiter is not predisposed to find against hirn. Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980) (internal citations omitted). Due process guarantees the right to a neutral, detached judiciary in order "to convey to the individual a 5

feeling that the government has dealt with him fairly; as well as to minimize the risk of mistaken deprivations of protected interests." Carey v. Piphus, 425 U.S.247, 262 (1978). The appearance of impropriety violates state and federal constitutional rights to due process. A fair hearing before an impartial tribunal is a basic requirement of due process. In re Murchison, 349 U.S. 133 (1955). "Every litigant[] is entitled to nothing less than the cold neutrality of an impartial judge." State ex rei. Mickle v. Rowe, 131 So. 331, 332 (Fla. 1930). Absent a fair tribunal there is no full and fair hearing. Under the circumstances, Mr. Valle is compelled to file this motion to disqualify Judge Jacqueline Hogan Scola. REQUEST FOR RELIEF WHEREFORE, because this motion is legally sufficient, this Court should not consider the facts of the motion; it should take no action other than recusing itself and requesting random reassignment of the case. Fla. R. Jud. Admin. 2.330. Recusal at this stage is appropriate and vital .for the interests of justice. Random assignment to a ew. Judge will help ensure a fair and impartial postconviction proceeding. 6


Undersigned counsel certifies that she is counsel of record in this cause and that the motion for disqualification is made in good faith for the oses described in the Florida Rules of Judicial Administration. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the f~,Oing has been furnished by United States Mail and/or e-mail and/or hand delivery to the £ ll~ng this --Day of July, 201 L /' . SU'-'D,.< '" ~ Chie Copies furnished to: The Honorable Jacqueline Hogan Scola Richard E. Gerstein Justice Bldg. 1351 N.W. 12th Street Miami, Florida 33125 Penny Brill, Assistant State Attorney Office of the State Attorney 1350N.W.12thAvenue Miami, Florida 33125 Sandra Jaggard, Assistant Attorney General Office of the Attorney General Rivergate Plaza, Suite 950 444 Brickell Avenue Miami, Florida 33131 7 STATE OF FLORIDA ) ) ss: COUNTY OF BRADFORD) AFFIDAVIT OF MANUEL VALLE I, MANUEL VALLE, having been duly sworn, do hereby depose and say: I have reviewed the forgoing Motion to Disqualify Judge and Memorandum of Law, in the case of State v. Manuel Valle, Case No. 78-5281A. After review of this motion and the facts presented therein I am in fear that I cannot receive a fair hearing before Judge Jacqueline Hogan Scola. As a result, I believe that Judge Jacqueline Hogan Scola must be disqualified from the proceedings. Random assignment to a new judge is appropriate. Further, I swear that the facts and matters presented in this motion are correct and true. Further affiant sayeth naught. MANUEL VALLE Sworn to or affirmed and subscribed before me this ~ day of July, 2011 by Manuel Valle,~o is personally kno~r has shown the following form of identification: ~~ .~1f.~'i~> JUAN f- ~INEDA TARY PUBLIC, S1f~TE OF FLORIDA SEAL: .;.r~"\" CommISSIO!1 #DD 913192 ~~~ Expires October 4, 2013 YCommission ExpirM ;«P.r..~~' Bonded Thn.i T/tIYFtln /neinr!Ce 8OQ.3&S.70t.



_ . ~D5'__=_20~ -_20_1---'-9_ _ _ __

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STATE OF FLORIDA ss: COUNTY OF BROWARD AFFIDAVIT OF SUZANNE MYERS KEFFER I, SUZANNE MYERS KEFFER, having been duly sworn or affirmed, do hereby depose and say: 1. I currently represent Manuel Valle in the matter of State of Florida v. Manuel Valle, Case No. 78-5281A; Manuel valle v. State of Florida, Case No. SCll-1326. 2. On July 5, 2011, as counsel for Mr. Valle, I attended a status conference at 11:00 am before the Honorable Jacqueline Hogan Scola. Before the commencement of the status conference, undersigned counsel filed a Motion to Disqualify Judge and Memorandum of Law in open court. 3. During the status conference, at approximately 12:00 pm, Judge Hogan Scola announced that the court would conduct a public records at 1: 30 pm the same day. As a result of the previously unscheduled public records hearing, I did not leave court until approximately 5:30 pm. 4. While in court on the afternoon of July 5 th , I requested the transcripts of the proceedings and requested these transcripts be expedited. The court reporter indicated she would get the transcripts to me as soon as possible and understood the urgency of the case. 5. On the morning of July 6, 2011, I contacted Apex Reporting, the agency for which the court reporter works. Apex

informed me that the reporter was covering her regularly scheduled calendar and would be in court all morning, but would email the reporter regarding the July 5, 2011 transcript. Mid-morning, having not heard from the reporter or Apex, I again called Apex, who agreed to get a message to the reporter through the judge's judicial assistant for whom she was reporting. 6. At approximately 11:00 am, I heard from the court reporter, who informed she had worked on the transcripts last night but due to the volume was not able to complete them. She also informed me that due to the nature of Mr. Valle's case she requested that her agency find someone to cover her morning calendar, so she could complete the transcripts. She was unable to receive coverage. 7. The court reporter indicated that she would return home and immediately begin working on the transcript. I requested that she complete the morning portion of the proceedings first as this involved the Motion to Disqualify and scheduling. The court reporter agreed to email the transcripts to me as soon as they were available. 8. The transcripts of July 5, 2011 will be forwarded to this Court and all parties immediately upon receipt. 9. Furthermore, I was able to obtain a copy of an audio recording of the July 1, 2011 status conference. The audio recording was done by the Administrative Offices of the Courts for the Eleventh Judicial Circuit . The audio has not been 2

transcribed, nor can the audio be downloaded in order to forward to the Court electronically. Additionally, it appears that the disc does not represent a full recording of the proceedings, as it abruptly cuts off. I am attempting to hire a court reporting service to transcribe the audio recording as soon as possible. Further affiant sayeth naught. / / of is Sworn to or affirmed and ____~~~~~·~!={~1<7(/~---------, personally kn9Wn to me. NOTARY PUBLIC, STATE OF FLORIDA My Commission Expires: ,""~'Ipf!' PAUL KALIL /~ ... if~Z\ Commission # EE 021767 ~. !t§ Expires December 29, 2014 ~'.r! o'"W\ Shaquivia Alvin 'ItWR j Commission # DD757106 .......,;:,/ Expires: MAR. 19, 2012



I HEREBY CERTIFY that a true copy of the foregoing has been furnished by United States Mail and/or e-mail and/or hand delivery to the following this D;/?day ofJuly, 2011. '7 / / / Copies furnished to: The Honorable Jacqueline Hogan Scola Richard E. Gerstein Justice Bldg. 1351 N.W.12thStreet Miami, Florida 33125 Penny Brill, Assistant State Attorney Office of the State Attorney 1350 N.W. 12th Avenue Miami, Florida 33125 Sandra Jaggard, Assistant Attorney General Office of the Attorney General Rivergate Plaza, Suite 950 444 Brickell Avenue Miami, Florida 33131 6

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