The replybrief in John Marek

http://www.floridasupremecourt.org/pub_info/summaries/briefs/09/09-765/Filed_05-01-2009_Reply_Brief.pdf

http://johnmarek.us/legal/MarekReplyBriefFSC%205-1-09.txt



IN THE SUPREME COURT OF FLORIDA
CASE NO. 09-765
JOHN MAREK,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
ON APPEAL FROM THE CIRCUIT COURT
OF THE SEVENTEENTH JUDICIAL CIRCUIT,
IN AND FOR BROWARD COUNTY, STATE OF FLORIDA
REPLY BRIEF OF APPELLANT
MARTIN J. MCCLAIN
Florida Bar No. 0754773
McClain & McDermott, P.A.
Attorneys at Law
141 N.E. 30th Street
Wilton Manors, FL 33334
(305) 984-8344
COUNSEL FOR APPELLANT
1
REPLY TO THE STATE’S
STATEMENT OF THE CASE
Counsel for the State has repeatedly made untruthful
representations regarding the procedural history of Mr. Marek’s
case in order to argue a lack of diligence by his counsel. In
its “Statement of the Case,” the State’s Answer Brief refers to
the “successive rule 3.850 motion filed on July 22, 1993" and
“the ‘supplemental motion’” filed on July 24, 1994 (Answer Brief
at 6-7). In the very next paragraph, the State’s Answer Brief
sets forth: “A new 2001 motion was filed by Marek included Claims
II, III, IV, V, VI, VII, and VIII which were practically verbatim
to seven (7) claims raised by Marek in his 1993/1994 motion for
postconviction relief” (Answer Brief at 8). According to the
State, “[t]he remaining claims, Claim I (public records), Claim
IX (newly-discovered evidence made known in July 1996), Claim X
(recusal of the trial court known since 1994), Claim XI (Apprendi
v. New Jersey issue); and Claim XII (constitutionality of lethal
injection) were either barred based on time limitations for
failing to timely prosecute a claim or without merit based on
decisions of the Florida Supreme Court” (Answer Brief at 8).
The description of the final amended Rule 3.850 motion filed
on September 21, 2001, as containing claims that were not timely
prosecuted is simply false. In its brief, the State provides no
explanation for these descriptions of Mr. Marek’s claims. The
language the State employs in its Answer Brief is a straight lift
Specifically, the State argued that the failure to file a 1
motion to vacate premised upon evidence disclosed in 1996 before
2001 created a procedural bar to the consideration of the claims
premised upon that evidence (2PC-R. 880, 925, 931). The State’s
argument had overlooked the fact that these claims were in fact
raised in the amended 3.850 filed on August 30, 1996. On January
15, 1997, Judge Kaplan disqualified himself from the case. On
March 6, 1997, the State asked that it not be required to respond
to the motion for postconviction relief until the public records
requests made by Mr. Marek had been resolved.
In 1997, the Office of the Capital Collateral Representative
was split into three separate regional offices and Mr. Marek’s
case was transferred to the CCRC-South regional office. In 1998
when Neal Dupree was appointed as the CCRC-South, a conflict was
declared as to Mr. Marek and his case was transferred to CCRCNorth
and to attorneys who had not previously represented Mr.
Marek. In 2002, CCRC-North contracted with undersigned counsel
to once again act as Mr. Marek’s counsel. When CCRC-North was
shuttered in 2003, undersigned counsel was appointed as registry
counsel for Mr. Marek. Despite these circumstances entirely
beyond Mr. Marek’s control, continuous litigation occurred
between 1996 and 2001, contrary to the repeated false
representations made by Assistant Deputy Attorney General
Snurkowski who for unknown reasons was not present for or
involved in the litigation that occurred during that time period.
2
from the discredited Response to Second Amended Motion to Vacate
Judgments and Sentence that was filed on November 27, 2001, in
which the State erroneously denied that any activity in the case
had occurred between 1996 and 2001 (2PC-R. 853). 1
At the Huff hearing held on February 19, 2002, Mr. Marek’s
counsel observed that the State’s arguments in its November 27,
2001, response that Mr. Marek had not prosecuted his Rule 3.850
motion were premised upon its erroneous omission of five years of
litigation:
And in Mr. Marek’s case, when I was getting ready for
this hearing today, I was gathering the papers and I
was reading the state’s response. And the state’s
During the active litigation in Mr. Marek’s case that 2
occurred between 1996 and 2001, Assistant Deputy Attorney General
Snurkowski did not show up for a single hearing. She was not
shown as counsel on a pleading entitled “State’s Response to
Defendant’s Sixth Supplement to Motion to Disqualify Judge” which
was served on April 23, 1996 (2PC-R. 272) or on the pleading
entitled “State’s First Request for Extension of Time to Respond
to Defendant’s Motion for Post Conviction Relief” which was
served on August 29, 1996. In a pleading served by the State in
1997, Assistant Attorney General Sara Baggett in the West Palm
Beach office was shown as being served (2PC-R. 543). No one from
the Attorney General’s Office showed up for hearings conducted on
November 22, 1999 (2PC-R. 1) or October 23, 2000 (2PC-R. 49).
The State was represented at the 2002 Huff hearing by
representatives from both the State Attorney’s Office and by
Assistant Deputy Attorney General Snurkowski. The November 27,
2001, response was signed by both representatives. However, the
Assistant Deputy Attorney General seemed to acknowledge that her
office had drafted the response and had not had access to the
pleadings filed by the parties between 1996 and 2001 nor the
3
response which was filed, I guess, November of 2001, I
was sort of troubled by the fact that within it there
is just a certain sort of representation or it’s based
on certain representations that’s just not true.
* * *
The problem is that this misrepresentation is
underneath the entire things. For example, footnote 11
of the state’s response which appears on page 39
indicates that as to claim 9, the information surfaced
in July of 1996, but Mr. Marek had not filed anything
on this claim until the year 2001 and was time barred
in reference to claim 10.
(2PC-R. 73-74). In responding at the 2002 Huff hearing, the
Assistant Attorney General acknowledged the error, explaining “we
don’t have full access to the records that apparently the CCR - -
and I’m going to look to make sure on this one, but I don’t
believe that we were given service. It was not. It was just to
[the State Attorney]” (2PC-R. 92). Accordingly, the Assistant 2
numerous hearings that had occurred during that period.
Not too surprisingly, in its Modified Response filed on 3
April 2, 2002, the State dropped its procedural bar arguments
premised upon the failure to file a Rule 3.851 based upon
information disclosed in 1996 before 2001 since in fact Mr. Marek
filed an amended motion in 1996 that included information that
had been disclosed at that time (Compare 2PC-R. 931 to PC-R2.
1031-34).
4
Attorney General asked at the end of the Huff hearing for
permission to supplement the response in light of the 5 years of
litigation omitted from the State’s November 27, 2001, response
(2PC-R. 123). The State was given 30 days to correct its
response and include a discussion of the litigation occurring
during the 5 year period (2PC-R. 951-53). A Modified Response 3
was filed on April 2, 2002.
In this Modified Response, the State acknowledged that
litigation on Mr. Marek’s motion to vacate continued through
those five years:
On August 29, 1996, Marek filed an amended
postconviction motion raising nine claims. The first
seven were identical to the claims raised in his
successive motion 1993-1994. Marek added two
additional claims that: Claim VIII - Newly Discovered
Evidence Establishes That Mr. Marek’s Capital
Conviciton and Sentence Are Constitutionally Unreliable
And That Mr. Marek Is Innocent; and Claim IX - The
Trial Judge Failed to Disqualify Himself From Mr.
Marek’s Trial And Postconviction Proceedings And The
Prejudice Resulting Therefrom Violated The Fifth,
Sixth, Eighth And Fourteenth Amendments To The United
States Constitution.
Between the first amended 3.850 filed August 1996
and the second amended 3.850 filed September 27, 2001,
the following chronology of events has occurred:
Even this recitation overlooked important events during the 4
1996-2001 time period. No reference was made to the State’s
motions for extension to respond to the Rule 3.850 motion, nor to
5
- Starting in September of 1996 public
records (Chapter 119) demands commenced; State
complies June 23, 1997; additional motions to
compel filed in 1997-98; public records hearing
held November 22, 1999; order on public records
hearing December 13, 1999; State provides exempt
documents to court December 21, 1999; October 5,
2000, additional public records request and motion
to compel filed; October 23, 2000, hearing set for
latest public records demand; November 30, 2000,
second hearing on public records held, agencies
required to respond by January 5, 2001; December
18, 2000, CCRC makes more public records demands;
January 5, 2001, notice of compliance by State
filed; June 13, 2001, order issued on exempt
public records; September 26, 2001, hearing on
remaining public records issues; court orders
amended 3.850 to be filed by September 28, 2001.
- Contemporaneous with the filing of the
“first” amended motion August 29, 1996, Marek
filed yet another motion to disqualify the trial
court. On September 20, 1996, that motion was
denied.
- On November 2, 1998, CCRC South filed a
notice of conflict and on November 4, 1998, CCRC
North was designated counsel of record. On
December 15, 1998, notice of appearance of CCRC
North was filed.
- December 13, 1999, Court reserves ruling on
Marek’s motion for discovery (to depose Judge
Kaplan). February 11, 2000, Marek renews motion
for discovery to depose Judge Kaplan. March 13,
2000, telephonic hearing where court orders memors
from the parties. April 20, 2000, Marek’s memo
filed; State responds May 5, 2000. June 13, 2001,
Court issues order denying Marek’s first and
amended motion to permit discovery to depose
Kaplan.
(2PC-R. 951-53).4
the State’s request to hold proceedings on the Rule 3.850 in
abeyance until the conclusion of the public records litigation,
nor to the fact that Judge Kaplan granted the motion to
disqualify on January 15, 1997.
6
Thus, the amended Rule 3.850 motion filed on September 27,
2001, was a second amendment. It amended the motion initially
filed in 1993, that was supplemented in 1994, and that was first
amended in 1996. The second amended motion filed in 2001
identified twelve claims for relief: 1) access to public
records; (2) the conflict of interest created by Broward County’s
system for funding special assistant public defenders and expert
witnesses; (3) ineffective assistance provided by trial counsel
and the trial mental health expert at the penalty phase; (4) jury
recommendation was tainted by invalid aggravators; (5)
unconstitutional automatic aggravator; (6) dilution of jury’s
sense of responsibility for penalty; (7) exclusion of mitigating
evidence; (8) due process violated by litigating prior Rule 3.850
motion under death warrant; (9) newly discovered evidence
regarding Wigley; (10) Judge Kaplan’s bias tainted the trial,
penalty phase and prior post-conviction proceedings; (11) capital
sentencing statute violates Sixth Amendment; (12) lethal
injection violates Eighth Amendment (2PC-R. 702-841). Claims 2
through 7 were presented in Mr. Marek’s second Rule 3.850 motion
which was filed on July 22, 1993 (Supp. 2PC-R. 1-98). Claim 8
was presented in a supplement which was filed on January 26, 1994
The first amended motion filed in August of 1996, had 5
contained nine claims. In addition to the six claims pled in the
motion filed in July of 1993 and the supplement to the motion
filed in January of 1994(2PC-R. 19), the amended motion alleged
that Judge Kaplan’s bias had tainted Mr. Marek’s trial and postconviction
proceedings (Claim IX, 2PC-R. 423-35), and newly
discovered evidence regarding Wigley (Claim VIII, 2PC-R. 417-23).
No explanation appears in the Answer Brief as to why the 6
State picks up the discredited contentions that it made in
November of 2001, and subsequently abandoned.
Ignored by the Assistant Deputy Attorney General was the 7
fact that the State requested an extension of time to respond on
August 29, 1996, and an amended motion to vacate was filed on
August 30, 1996. Also ignored by the Assistant Deputy Attorney
General was the fact that on March 6, 2007, the State asked to
hold its obligation to file a response in abeyance until the
public records litigation was completed.
7
(2PC-R. 19). Claims 9 and 10 were presented in an amendment
filed on August 30, 1996 (2PC-R. 313-437). Only Claims 1, 11 5
and 12 were presented for the first time in the second amendment
filed on September 27, 2001.
In a brief filed with this Court in 2006, the State in its
procedural history returned to its old discredited contention
that nothing happened between 1996 and 2001. In that procedural 6
history, the State recited the following:
On June 3, 1996, the Court ordered the state to
respond to Marek’s original 3.850 motion.
Marek filed an amended rule 3.850 in September 21,
2001, - Claims II, III, IV, V, VI, VII and VIII were
practically verbatim to the seven claims raised and
“unprosecuted” by Marek in his 1993/1994 motion for
postconviction relief.
(Answer Brief at 10). When Mr. Marek’s counsel pointed out the 7
falsehood being perpetrated in the State’s 2006 Answer Brief,
8
Assistant Deputy Attorney General Snurkowski chose to not correct
her false representation. Instead, she repeated it when she
asked this Court to dispense with oral argument in the pleading
she filed in April of 2006. When Mr. Marek’s counsel again
pointed out the falsehood, Assistant Deputy Attorney General
Snurkowski chose to not correct her false representation.
Instead, she repeated it when she filed a response to Mr. Marek’s
Rule 3.851 motion filed in May of 2007, on July 2, 2007 (3PC-R.
57).
The significance of this history is to demonstrate that the
State’s representative in the proceedings has amply and
repeatedly demonstrated her lack of knowledge of Mr. Marek’s
case. Whether her false representations are due to ignorance or
due to malevolence does not matter. They are simply untrue.
The State’s representative’s inability to accurately
represent the record was again on display on Monday, April 27,
2009, when the circuit court held a hearing on Mr. Marek’s motion
for rehearing/motion to amend. At that time in response to Mr.
Marek’s arguments regarding the pendency of Caperton v. Massey in
the U.S. Supreme Court and the basis for Judge Kaplan’s
disqualification from Mr. Marek’s case, Assistant Deputy Attorney
General Snurkowski stated:
[N]ow, going back, we had all the issues with regard to
Judge Kaplan, that involved – and that's just
testimony that was made that day and had to do with, in
fact, his views on the death penalty and his position
9
on the death penalty. It was only mentioned the notion
that he was personal or friendly with Mr. Muldorf
[sic]. I think there may have been question with
regard to whether anything that was done was done
because of that, but I think that was a comment during
those proceedings.
We think we had a little bit of a change in the view of
what the problem was with Judge Kaplan from something
that did not prevail with regard to his personal views
and now the personal relationship because of the
Caperton case which is pending before the United States
Supreme Court.
(Transcript of 4/27/09 hearing at 45).
However, the order granting the disqualification which was
signed by Judge Kaplan stated:
1. This Court finds that all of the grounds of the
Defendant’s several Motions to Disqualify are legally
insufficient to disqualify the trial judge.
2. Over many years this Judge’s personal relationship
with Attorney Hilliard Moldof has developed into a
close friendship with Attorney Moldof, his wife, Mrs.
Zena Moldof, as well as the Moldof’s children.
3. The court still feels it could be fair and
impartial in this matter.
4. However, the court believes that the manifest
appearance of impartiality is just as important as
actual impartiality.
5. Accordingly, based upon the possible appearance of
the court not being impartial, based upon the above
stated reasons (and for these reasons only),
It is hereby,
ORDERED AND ADJUDGED that the undersigned Judge hereby
recuses himself from further proceedings in this
matter.
(Order filed January 15, 1997). The record quite clearly shows
The United States Supreme Court has written under the 8
American system a prosecutor is:
the representative not of an ordinary party to a
controversy, but of a sovereignty whose obligation to
govern impartially is as compelling as its obligation
to govern at all; and whose interest, therefore, in a
criminal prosecution is not that it shall win a case,
but that justice shall be done.
Berger v. United States, 295 U.S. 78, 88 (1935).
10
the basis for Judge Kaplan’s disqualification and demonstrates
that once again, Assistant Deputy Attorney General Snurkowski
misrepresented the record and the history of Mr. Marek’s case.
Ignoring the actual record and the reason set forth by Judge
Kaplan for his disqualification, Assistant Attorney General
Snurkowski states in the Answer Brief:
It is noteworthy that at the hearing held April 27,
2009, before the trial court, Marek‘s counsel made a
point to suggest that the issue of Judge Kaplan‘s
recusal was based on the friendship between the judge
and Hilliard Moldof. The State urged that there were a
number of matters that influenced Judge Kaplan‘s
recusal. Based upon the number of pages Mr. McClain has
devoted to the history of that event, it would appear
counsel‘s representations were less than forthright as
to the circumstances and allegation before the trial
court a number of years ago.
(Answer Brief at 50). So apparently rather than look up the
order of recusal and accurately acknowledged what the order
stated, Assistant Attorney General Snurkowski decided to suggest
that undersigned counsel had not been forthright with this Court
or with the circuit court. She clearly will say anything to try
to bring about Mr. Marek’s execution and win this case. 8
11
ARGUMENT IN REPLY
ARGUMENT I, Part B: Disparity in treatment of Mr. Marek and his
co-defendant.
As to Argument I, part B, the State’s Answer Brief asserts:
Marek did not argue this precise matter below to the
trial court and he has not shown how it has become a
viable argument on appeal.
(Answer Brief at 34). Once again, the State’s representative is
simply not accurately representing the record.
Certainly, the circuit court believed the issue had been
raised since it addressed it in its April 23, 2009, order denying
the motion to vacate (“This Court further finds that the
Defendant [sic] claim regarding the prosecutor’s use of
inconsistent theories is refuted by Walton v. State,
supra.”)(Order of 4/23/09 at 4). The circuit court believed the
issue had been raised since it again addressed the issue in its
April 27, 2009, denying Mr. Marek’s motion for rehearing/motion
to amend (“As to the Defendant’s claim (1) of disparate treatment
of the co-defendant, this Court finds that the claim is without
merit. In Marek v. State, 462 So. 2d 1554, 1058 (Fla. 1986), the
Florida Supreme Court already decided the issue against the
Defendant. Additionally, the Defendant’s reliance on Bradshaw v.
Stumpf, 545 U.S. 175 (2005) and Raleigh v. State, 932 So. 2d 1054
(Fla. 2006) is misplaced. The law of the case as set forth in
Marek, supra controls as does the law in the case of Gore v.
The State makes no effort to address what the circuit court 9
stated. To do so would require acknowledging that the issue was
before the circuit court, unless the State’s representative’s
contention would be the circuit court was just clairvoyant,
accurately anticipating what Mr. Marek would raise in this Court.
The State in its Answer Brief also states: 10
Marek presently is citing Cone v. Bell, __ U.S. __,
2009 US LEXIS 3298 (April 28, 2009), to support his
argument that the State took ¯inconsistent arguments.
in the trials of Marek and Wigley, his codefendant. The
issue as to inconsistent arguments has been rejected,
and nothing in Cone v. Bell, supra., adds to or
challenges the correctness of the courts review of that
claim.
(Answer Brief at 32). But of course, Mr. Marek cited Cone v.
Bell because it reiterated that due process imposes obligations
upon prosecutors to seek justice, not just personal victories.
Apparently, a prosecutor’s obligation to seek justice is beyond
the State’s representative’s grasp.
12
State, 964 So. 2d 1257 (Fla. 2007), cert. den. 128 S. Ct. 1250
(U.S. Fla. 2008).”)(Order of 4/27/09 at 1).9
The circuit court thus found the issue raised by Mr. Marek
and concluded that it lacked merit. The State’s position to the
contrary is just false.10
The State also argues that the law of the case precludes
consideration of this issue:
Indeed, the only way around law of case is if Marek had
come forth with newly discovered evidence that would
invoke the Court‘s power to reconsider and correct ¯an
erroneous ruling,. in exceptional circumstances, where
reliance on the previous decision would result in
manifest injustice. See State v. Owen, 696 So. 2d 715,
720 (Fla. 1997). That has not been done here.
(Answer Brief at 25-26, n. 9). However, Mr. Marek relied both on
13
the fact that Wigley record was not before this Court at the time
of the direct appeal, and that this Court’s decision in Raleigh
v. State, 932 So. 2d 1054 (Fla. 2006), warranted revisiting the
issue.
The State in its Answer Brief never addresses the quoted
passages from Wigley’s trial that Mr. Marek has relied upon to
show that the prosecution took inconsistent position in the two
cases contrary to the standard set forth in Raleigh. Clearly,
the State’s refusal to address the arguments made at the Wigley
trial demonstrates that the State’s position at Wigley’s trial
cannot be reconciled with the position the State took at Mr.
Marek’s trial.
ARGUMENT I, Part C: Ineffective Assistance of trial counsel under
Srickland v. Washington.
As to this issue, the State’s Answer Brief begins:
Next Marek argues yet another claim that was not
presented in his most recent motion for post-conviction
review.
(Answer Brief at 34). Once again, the State’s representative is
simply not accurately representing the record.
Certainly, the circuit court believed the issue raised now
had been raised in the motion filed below since it addressed it
in its April 23, 2009, order denying the motion to vacate (“This
Court also finds that the Defendant’s “Second Claim” in both of
his motion and also as explained in his Memorandum under Wiggins
v. Smith, 539 U.S. 510 (2003), Rompilla v. Beard, 545 U.S. 374
14
(2005) and Williams v. Taylor, 529 U.S. 362 (2000) in which the
Defendant has requested to re-examine his claim of ineffective
assistance of penalty phase counsel is speculative and is an
improper attempt to re-litigate a matters already previously
determined.”)(Order of 4/23/09 at 3).
Tellingly absent from the State’s Answer Brief is any effort
to explain why Mr. Marek would not be entitled to relief under
Williams v. Taylor, Wiggins v. Smith, and Rompilla v. Beard. The
Answer Brief references the three cases once on page 34 as
indicating that Mr. Marek is relying on these three cases to
raise an issue that he did not raise in circuit court. Yet, the
circuit court addressed these three cases in its order. And then
thereafter, the State makes no effort to explain why those three
cases do not mean that Mr. Marek received ineffective assistance
of counsel. The State makes no effort to explain why these three
cases do not mandate relief because such an argument cannot be
made; those decisions clearly show that Mr. Marek received
ineffective assistance of counsel at his penalty phase. Instead,
all that the State can rely on are decisions that were rendered
long before Williams v. Taylor, Wiggins v. Smith, and Rompilla v.
Beard were decided.
ARGUMENT I, Part D: The standardless clemency process produces
arbitrary executions.
As to this issue, the State’s Answer Brief asserts:
Next Marek argues for the first time in this appeal
15
that he has been denied a critical stage of the capital
scheme, clemency. Interestingly, the only other mention
of this was in the ¯Notice of Counsel’s Decision Under
Harbinson v. Bell, To Represent Petitioner In State
Clemency Proceedings, filed in federal court in the
Southern District Court for Florida.
(Answer Brief at 44). Once again, the State’s representative is
simply not accurately representing the record.
In his motion to vacate that was filed on May 11, 2007, Mr.
Marek set forth the following arguments:
10. Clemency
44. Clemency is a critical stage of the capital
process.[11] However, the ABA Report found Florida’s
clemency process to be lacking: “Given the ambiguities
and confidentiality surrounding Florida’s clemency
decision-making process and that fact that clemency has
not been granted to a death-sentenced inmate since
1983, it is difficult to conclude that Florida’s
clemency process is adequate.”[12] ABA Report at vii.
See Furman, 408 U.S. at 253 (Douglas, J., concurring)
(“Under these laws no standards govern the selection of
the penalty. People live or die, dependent on the whim
of one man or of 12.”).
(3PC-R. 42). In footnote 11, Mr. Marek stated:
It is the only stage at which factors like lingering
doubt of innocence, remorse, rehabilitation, racial and
geographic influences and factors can be considered.
See Herrera v. Collins, 506 U.S. 390, 412 (1993).
In footnote 12, Mr. Marek stated:
The clemency process is entirely arbitrary; there are
no rules or guidelines “delineating the factors that
the Board should consider, but not to be limited to” in
considering clemency. For all practical purposes, the
clemency process is dead. It does not appear that any
serious consideration is given. It certainly does not
function in the manner that is suggested it should in
Herrera. The clemency process, as part and parcel of
Florida’s capital sentencing process, only provides
In a cryptic passage, the State in its Answer Brief 11
asserts:
For the Court’s benefit, it should be noted, first that
Mr. McClain has asserted he will not have adequate time
to properly litigate Marek‘s case, however, in spite of
the state statute barring CCRC and registry appointed
counsel from handling clemency, he will devote his time
to the preparation of a clemency application. See
Sections 27.51(5)(a); 27.511(9); and 27.5303(4), Fla.
Statutes.
(Answer Brief at 45). The purpose of this is unclear. Is the
State’s position that counsel should not take his obligation to
pursue all available remedies for his client seriously?
Undersigned counsel believes that he has a duty to his client
that he does not take lightly. Just yesterday on April 30, 2009,
undersigned counsel received a call from a hysterical father and
step-mother reporting that counsel’s father is having surgery on
May 5 on his prostate and that his step-mother was told on th
April 30 that she had lymphoma of the skin. The situation that th
counsel finds himself is exceedingly stressful. But, he feels
honor bound to his client of twenty years to try and demonstrate
why his execution is wrongful and unconstitutional. That counsel
feels that the time parameters that have been set are unfair to
Mr. Marek is an appropriate matter to point out to this Court.
That counsel feels obligated under the new decision in Harbison
v. Bell to pursue a clemency application does not mean that
counsel feels that he has a surplus of time. Instead, it should
be understood for what it is, an unshakable belief that the
16
more arbitrariness in the decision making as to who is
to be executed.
(3PC-R. 42). These allegations were repeated in the amended
motion filed July 18, 2008.
Clearly contrary to the State’s assertion in its Answer
Brief, Mr. Marek did present his clemency argument to the circuit
court. A citation to Harbison v. Bell was not included because
the decision did not issue until April 1, 2009, well after the
motion to vacate and the amended motion to vacate were filed.11
execution of John Marek is, at minimum, wrong, and that the death
sentence that has been imposed and is scheduled to be carried out
is arbitrary in the extreme.
As for the State’s suggestion that Mr. McClain will violate
some statute if he honors what he believes is his obligation
under Harbison, that position was not asserted in the pleading
that the State filed in federal district court. Nor has the
State sought to file an extraordinary writ asserting that
undersigned counsel’s announced intention to prepare a clemency
application is in violation of his registry appointment. If such
a pleading were filed, undersigned counsel would be happy to
explain that the statute cited by the State concerns limitations
on the work that the State will compensate counsel for. He
understands that he cannot file an application for clemency and
expect to be reimbursed by the State. However, that does not
preclude him from filing a clemency application on Mr. Marek’s
behalf when his time will be reimbursed by the federal government
as dictated by Harbison.
In Harbison, the United States Supreme Court explained that 12
federal habeas counsel may develop in the course of his
representation “the basis for a persuasive clemency application”
which arises from the development of “extensive information about
his [client’s] life history and cognitive impairments that was
not presented during his trial or appeals.” Slip Op. at 13. The
process that occurred in 1988 before the life history was
investigated and developed cannot be the “fail safe” that is
17
Moreover, the State in its Answer Brief ignores what the
United States Supreme Court has said about the clemency process
in a capital case. “Far from regarding clemency as a matter of
mercy alone, we have called it ‘the “fail safe” in our criminal
justice system.’” Harbison v. Bell, Slip Op. at 12. Indeed, it
is hard to understand as the State argues, that it is proper for
the “fail safe” to occur before the judicial proceedings have
occurred. Certainly having a clemency hearing first insures that
it cannot act as a “fail safe” as our criminal justice system
requires. The State’s Answer Brief makes no effort to address 12
envisioned by the United States Supreme Court.
The State also does not address the fact that the public 13
records disclosed on Monday, April 27, 2009, show that the State
Attorney’s Office was in contact with the Governor’s Office and
the Parole Commission in September of 2008 in order to provide
information regarding Mr. Marek and his mental evaluations and to
give the Governor guidance as to whether a warrant should be
signed on Mr. Marek or whether mercy should be shown and a
warrant signed on someone else. Of course, Mr. Marek and his
counsel were not in the loop and not given the opportunity to set
forth the reasons why mercy was warranted. It is this one-sided
process in which the Assistant Deputy Attorney General who cannot
get the facts right, but who wants to win the case, gets to be
the one giving the Governor information that results in a process
that is hardly a “fail safe”, but instead a violation of due
process and the Eighth Amendment.
18
how the 1988 proceeding was the “fail safe” that due process
requires. 13
ARGUMENT II: The Lackey claim.
As to this claim, the State says that Mr. Marek’s claim is
indistinguishable from similar claims raised by others. Oddly,
Assistant Deputy Attorney General Snurkowski in this argument
maintains that Mr. Marek has been litigious when she has been
falsely asserting for years that between 1996 and 2001 he did
nothing. Apparently, the facts according to the Assistant Deputy
Attorney General change depending on what is convenient to win.
ARGUMENT III: The claim that may arise once Caperton is decided.
Mr. Marek has been very up-front that the decision in
Caperton v. Massey has not issued. However because of the
signing of the death warrant, Mr. Marek may be executed before
the decision in a case that undersigned counsel has been
19
monitoring because of its potential impact on Mr. Marek’s death
sentence. Again, undersigned counsel has focused upon Judge
Kaplan’s presiding over an evidentiary hearing in 1988 when he
was required to listen to the testimony of his good friend,
Hilliard Moldof and decide whether he had rendered ineffective
assistance of counsel at Mr. Marek’s penalty phase proceeding.
Yet, the State has insisted on misrepresenting the facts
both in the circuit court and here. The State refuses to
acknowledge the basis of Judge Kaplan’s disqualification. The
State keeps asserting that it was not premised upon Judge
Kaplan’s relationship with Mr. Moldof. However, the order of
disqualification is very clear:
1. This Court finds that all of the grounds of the
Defendant’s several Motions to Disqualify are legally
insufficient to disqualify the trial judge.
2. Over many years this Judge’s personal relationship
with Attorney Hilliard Moldof has developed into a
close friendship with Attorney Moldof, his wife, Mrs.
Zena Moldof, as well as the Moldof’s children.
3. The court still feels it could be fair and
impartial in this matter.
4. However, the court believes that the manifest
appearance of impartiality is just as important as
actual impartiality.
5. Accordingly, based upon the possible appearance of
the court not being impartial, based upon the above
stated reasons (and for these reasons only),
It is hereby,
ORDERED AND ADJUDGED that the undersigned Judge hereby
recuses himself from further proceedings in this
20
matter.
(Order filed January 15, 1997). The State has ignored the record
in its pursuit of a win.
CONCLUSION
Based upon the record and his arguments, Mr. Marek
respectfully urges the Court to reverse the lower court, order a
new trial and/or resentencing, order new proceedings on Mr.
Marek’s 1988 Rule 3.850 motion, and/or remand for an evidentiary
hearing.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been
furnished by US Mail delivery to Carolyn Snurkowski, Assistant
Deputy Attorney General, Department of Legal Affairs, The Capitol
PL01, Tallahassee, Florida 32399-1050 on May 1, 2009.
CERTIFICATE OF FONT
This brief is typed in Courier 12 point not proportionately
spaced.
MARTIN J. MCCLAIN
Attorney at Law
Florida Bar No. 0754773
141 N.E. 30th Street
Wilton Manors, FL 33334
(305) 984-8344
COUNSEL FOR APPELLANT