In order to represent a client charged in a capital first degree murder case, the Florida Supreme Court requires that the attorney be "capital qualified." Being a capital qualified lawyer is the only way an attorney can ethically represent someone charged with first degree murder, unless the death penalty has already been waived on the record. Lawyers who are fully capital qualified meet the requirements of Florida Rule of Criminal Procedure 3.112, which requires at least five years of criminal trial experience, prior experience as lead counsel in serious and complex trials, including murder cases, as well as additional capital defense education requirements, familiarity with the use of expert, psychiatric, and forensic witnesses and evidence, and, importantly, trying at least two (2) death penalty cases to completion before a jury as co-counsel. In addition, capital defense lawyers must be able to provide "high quality legal services", and "perform at the level of an attorney skilled in the specialized practice of capital representation, zealously committed to the capital case, who has adequate time and resources for preparation." This is crucial because a capital case is unlike any other in the law, as "every task is more difficult and time consuming when the client is facing execution." Due to the irrevocable nature of the death penalty "counsel must make extraordinary efforts on behalf of the accused", and must limit his or her caseload, and be familiar with the local practices and procedures in the jurisdiction. These minimum requirements, promulgated by the Florida Supreme Court are, absent exceptional circumstances, absolutely essential in order to assure that the client receives the heightened level of effective assistance of counsel expected and required in capital cases. There are, and rightly so, only a very small percentage of criminal lawyers who are "capital qualified" according to the national A.B.A. and Florida guidelines.
Lawyers who have never tried a capital case in any capacity, much less as lead counsel, currently advertise with the key words "death penalty lawyer" all over the internet; thus, it is extremely important to research or inquire if an attorney being contemplated for representation on a first degree murder case actually meets the specific qualifications. In addition to the above criteria, Rule - 3.112(f)'s - requirement of knowledge of the practice and procedures in "the criminal courts of the jurisdiction" where the trial is to occur, and its requirement that attorneys limit the number of death penalty and other cases he or she is handling at any one time, is designed to insure, as much as possible, the delivery of "high quality" legal services on behalf of a capital client. When life hangs in the balance, we should expect no less.
David A. Brener is an "AV Preeminent" peer review rated criminal lawyer who is listed in the Bar Registry of Preeminent Attorneys.
Wednesday, April 14, 2010
Monday, April 12, 2010
On Jury Nullification
On Jury Nullification
The following is an excerpt from an article written by United States District Court Judge Frederic Block entitled “Reflections on Guns and Jury Nullification - and Judicial Nullification”, which was recently published in the Champion Magazine, a publication of the National Association of Criminal Defense Lawyers.
The province of a jury to disregard the law and engage in nullification has spawned debate and controversy throughout the years, and has been the subject of extensive commentary. The origin of jury nullification traces back to the mother country in the 1670 decision in Bushell’s Case, which arose out of the underlying prosecution of Quakers William Penn and William Mead for unlawful assembly. At trial, the evidence of the defendants’ guilt under the applicable statutes was “full and manifest,” but the jury “acquitted [the defendants] against the direction of the court in matter of law, openly given and declared to them in court. After juror Bushell was imprisoned for disobeying the judge’s instructions, he sought habeas relief in the Court of Common Pleas, where Chief Justice Vaughan ruled that the detentions were unlawful, stating that “how manifest soever the evidence was, if it were not manifest to [the jury], and that they believe it such, it was not a finable fault, nor deserving imprisonment….” Bushell’s Case is widely cited as the first precedent for the independence of the jury.
Closer to home, the John Peter Zenger trial in 1735 is the foremost historic example of jury nullification in the
As exemplified by the Zenger trial, the independence of the jury emerged as a central value of liberty in the new American republic. As one commentator has noted: “The proponents of the jury’s power and right to nullify the law suggest that juries have traditionally had that power and right. The nullification power was explicit in the American courts until the 1850’s.” Even as late as 1910,
There subsequently arose a more formalistic, anti-nullification view, as articulated by the Supreme Court in Sparf v. United States. In Sparf, which arose from a murder trial, the trial court had refused to comply with the jury’s request for instructions on the “lesser” charge of manslaughter because, while the jury apparently did not believe that it could acquit entirely, its request for instructions as to manslaughter showed that it was considering exercising leniency by convicting of the lesser offense, notwithstanding its legal inapplicability to the scenario at issue. The Supreme Court held that the trial judge had not erred in refusing the jury’s request. The Sparf court read Bushell’s Case narrowly – not as explicitly permitting jurors to nullify based on their personal view of the law, but merely as holding that Bushell could not be punished because “it could never be proved” that his refusal to convict was based upon his disregard of the law (which would have been impermissible), rather than his personal view of the evidence (which would have been permissible, however questionable). The Sparf court’s holding followed from its fear that “[p]ublic and private safety alike would be in peril if the principle [were] established that juries in criminal cases may, of right, disregard the law as expounded to them by the court, and become a law unto themselves.”
This anti-nullification view was expressed once again in Horning v. District of Columbia, where the Supreme Court gave its approbation, over the dissent of Justice Brandeis, to the trial judge’s jury instruction that “a failure by you to bring in a [guilty] verdict in this case can arise only from a willful and flagrant disregard of the evidence and the law…” Hewing to its formalistic approach, the majority opinion in Horning stated: “In [a case where the facts are not in dispute] obviously the function of the jury if they do their duty is little more than formal.” While the Supreme Court recognized that the trial judge had “[p]erhaps [displayed] a regrettable peremptoriness of tone” in his comments on potential jury nullification, it concluded that “[i]f the defendant suffered any wrong it was purely formal since… on the facts admitted there was no doubt of his guilt.” In disagreeing with this view of the role of the jury, Brandeis retorted that “[w]hether a defendant is found guilty by a jury or is declared to be so by a judge is not, under the Federal Constitution, a mere formality,” and opined that “the presiding judge [had] usurped the province of the jury…”.
The debate over the efficacy and acceptance of jury nullification has animated the circuit courts. In United States v. Dougherty, Judge Leventhal, writing for the D.C. Circuit, traced the evolving attitude toward jury nullification reflected in American jurisprudence. He noted that “in colonial days and the early days of our Republic [there were a] variety of expressions…from respected sources – John Adams; Alexander Hamilton; prominent judges – that jurors had a duty to find a verdict according to their own conscience, though in opposition to the direction of the court; that their power-signified a right; that they were judges both of law and of fact in a criminal case, and not bound by the opinion of the court.” However, he continued “[a]s the distrust of judges appointed and removable by the king receded, there came increasing acceptance that under a republic the protection of citizens lay not in recognizing the right of each jury to make its own law, but in following democratic processes for changing the law.”
Sparf was the natural end point of this evolution, Leventhal wrote, establishing that “[t]he jury’s role was respected as significant and wholesome, but it was not to be given instructions that articulated a right to do what ever it willed.” Judge Leventhal concluded that juries ought not be advised of their power of nullification, as “its explicit avowal risks the ultimate logic of anarchy”; as for the occasional exceptional case where nullification was indeed appropriate, he believed that “[t]he totality of input [from literature, media, word of mouth, history and tradition] generally convey[s] adequately enough the idea of … freedom in an occasional case to depart from what the judge says,” such that instructions to that end were not necessary. Judge Bazelon, in dissent, critized as “sleight-of-hand” the practice of intentionally hiding the right of nullification – the existence of which the majority had acknowledged – from the jury.
Quoting the eminent District Judge Jack Weinstein, the author of this interesting article took a more progressive view on nullification: In spite of the recent trend towards discharging jurors who may nullify – a particular problem with the selection of jurors in capital cases – I am hesitant to dismiss intelligent prospective jurors. … Concerns about jury nullification are largely unwarranted. Differences about evaluation of the facts based on differing life experiences ought not to be mistaken for nullification. There is some tendency to nullify based on conscience or individual circumstance in the face of laws a juror believes to be unjust. In my courtroom, I do not instruct juries on the power to nullify or not to nullify. Such an instruction is like telling children not to put beans in their noses. Most of them would not have thought of it had it not been suggested. I do believe, however, that judges can and should exercise their discretion to allow nullification by flexibly applying the concepts of relevancy and prejudice and by admitting evidence bearing on moral values. Judge Bazelon was correct when he wrote: “I do not see any reason to assume that jurors will make rampantly abusive use of their power. Trust in the jury is, after all, one of the cornerstones of our entire criminal jurisprudence, and if that trust is without foundation we must re-examine a great deal more than just nullification doctrine.” Citations and footnotes omitted.
Thus, it appears, as succinctly stated by the learned judge in a federal gun trial in which I was defense counsel, that jurors do have the power, but not the right, to nullify in an appropriate case. It is occasionally for this reason, that no matter how strong the evidence, the trial is not “over” until the verdict comes in.
David A. Brener, Esq., a Fort Myers criminal defense attorney, is the current Chairperson of the Criminal Law Section of the Lee County Bar Association and the current CJA Representative for the Fort Myers division of the Middle District of Florida.
The Mitigation Specialist in a Capital Case
THE MITIGATION SPECIALIST AS AN INTEGRAL PART OF THE DEFENSE TEAM IN A CAPITAL MURDER CASE
Until the death penalty is formally waived in writing or on the record, a person charged with first degree murder is subject to the possible penalty of death. Section 921.141 Florida Statutes. The State does not need to file a formal Notice of Intention to Seek the Death Penalty in order to seek the execution of the Defendant. F.R.Cr.P. 3.202. A timely death notice simply triggers reciprocal discovery obligations on the Defendant with regard to evidence of mental mitigation. F.R.Cr.P 3.202. Thus, the fact that the State has not yet filed a Death Notice is of no moment, and counsel should therefore proceed as if the case is a capital one.
Defense counsel in a capital case has an immediate obligation to request of the Court the appointment of experts to assist the defense regarding both phases of a capital trial. See American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (“the Guidelines” or “Guidelines”), 31 HOFSTRA LAW REV. (Summer 2003). “Counsel at every stage have an obligation to conduct thorough and independent investigation relating to the issues of both guilt and penalty.” Guideline 10.7, emphasis added. The Guidelines have been approved by the United States Supreme Court as “well defined norms”, Wiggins v. Smith, 539 U.S. 510 (2003), and “apply from the moment the client is taken into custody and extend to all stages of every case in which the jurisdiction may be entitled to seek the death penalty, including initial and ongoing investigation, pretrial proceedings, [and] trial . . .”. Guideline 1.1.
Pursuant to the Guidelines, lead counsel should, “as soon as possible after designation … assemble a defense team by . . . selecting and making any appropriate contractual agreements . . . in such a way that the team includes:
a. at least one mitigation specialist and one fact investigator;
b. at least one member qualified by training and experience to screen individuals for the presence of mental or psychological disorders or impairments; and
c. any other members needed to provide high quality legal representation.”
A mitigation specialist is more than simply an investigator for the penalty phase. She not only compiles a complete life history of the Defendant which may be presented to the capital jury, but is essential to developing and maintaining rapport with the client and his or her family. Perhaps as important, a mitigation specialist is essential to gathering and identifying mitigation evidence which may be used to persuade the State to not seek the death penalty or to waive death as a possible penalty after an initial decision to seek death has been made. Thus, a mitigation specialist has as much value at the early stages of a capital case as she has after a Death Notice has been filed by the State. As stated by the Commentary to Guideline 4.1 of the A.B.A. Guidelines:
A mitigation specialist is ... an indispensable member of the defense team throughout all capital proceedings. Mitigation specialists possess clinical and information-gathering skills and training that most lawyers simply do not have. They have the time and the ability to elicit sensitive, embarrassing and often humiliating evidence (e.g. family sexual abuse) that the defendant may have never disclosed. They have the clinical skill to recognize such things as congenital, mental or neurological conditions, to understand how these conditions may have affected the defendant’s development and behavior, and to identify the most appropriate experts to examine the defendant or testify on his behalf.
Perhaps most critically, having a qualified mitigation specialist assigned to every capital case as an integral part of the defense team insures that the presentation to be made at the penalty phase is integrated into the overall preparation of the case rather than being hurriedly thrown together by defense counsel still in shock at the guilty verdict. The mitigation specialist compiles a comprehensive and well-documented psycho-social history of the client based on an exhaustive investigation; analyzes the significance of the information in terms of impact on development, including effect on personality and behavior; finds mitigating themes in the client’s life history; identifies the need for expert assistance; assists in locating appropriate experts; provides social history information to experts to enable them to conduct competent and reliable evaluations; and works with the defense team and experts to develop a comprehensive and cohesive case in mitigation.
The mitigation specialist often plays an important role as well in maintaining close contact with the client and his family while the case is pending. The rapport developed in this process can be the key to persuading a client to accept a plea to a sentence less than death.
For all of these reasons the use of mitigation specialists has become “part of the existing standard of care” in capital cases, ensuring “high quality investigation and preparation of the penalty phase.”
(Footnotes and citations omitted).
Defense counsel normally does not have the time or training to conduct the especially thorough investigation required for a defendant in a capital case. Even when counsel has personally identified numerous avenues of mitigation, a mitigation specialist can further develop that evidence and conduct necessary follow-up, whether in the field, with the client, or with documentary evidence. In sum, a mitigation specialist is an invaluable member of the defense team, and one which should be involved in every potential capital case at the earliest possible time.
David A. Brener is a Fort Myers criminal defense lawyer who concentrates on homicide, serious felony, and federal cases.
He is the Chairperson of the Criminal Law Section of the Lee County Bar Association.
The Privilege against Self-Incrimination
THE PRIVILEGE AGAINST SELF INCRIMINATION DURING
THE BOOKING PROCESS
The Fifth Amendment privilege against self-incrimination protects an accused from being compelled to testify against himself or otherwise provide the State with evidence of a testimonial or communicative nature. Schmerber v. California, 384 U.S. 757 (1966). The privilege exists to spare the accused from having to reveal, directly or indirectly, his knowledge of facts connecting him to the offense or from having to share his thoughts and beliefs. It does not protect an accused person from providing any evidence against himself, but only evidence that is “testimonial”. “In order to be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information. Only then is a person compelled to be a ‘witness’ against himself.” Doe v. United States, 487 U.S. 201 (1988).
Thus, the results of a blood test are not testimonial, Schmerber v. California, supra, 384 U.S 757 (1966), nor is evidence of the refusal to take a blood test. South Dakota v. Neville, 459 U.S. 553 (1983). Similarly, handwriting exemplars, Gilbert v. California, 388 U.S. 263 (1967), voice exemplars, United States v. Dionisio, 410 U.S. 1 (1973), fingernail scrapings, Cupp v. Murray, 412 U.S. 291 (1973), and requiring the arrestee to put on a garment, Holt v. United States, 218 U.S. 245 (1910) or appear in a lineup, United States v. Wade, 388 U.S. 218 (1967) are not testimonial in a Fifth Amendment sense and do not implicate the privilege against self incrimination.
A defendant’s statement to police or police agents, however, is testimonial and is inadmissible if made in the absence of Miranda warnings and in response to questioning or interrogation. Bucknor v. State, 965 So.2d 1200 (4th DCA 2007 “Questioning” includes not only direct questions between the police and the suspect, but also discussion between the police officers themselves in the presence of the suspect, that is reasonably likely to lead to, or designed to lead to, an incriminating response. See Rhode Island v. Innis, 446 U.S. 291 (1980); Edwards v. Arizona, 451 U.S. 477 (1981).
During the booking and release process, arrestees are asked a series of questions, some of which may include requests for information that go beyond just the bare-bones biographical data. In Pennsylvania v. Muniz, 496 U.S. 582 (1990) a plurality of the Supreme Court carved out a “booking exception” to the Miranda rule, and held that questions may be asked of a suspect for the purpose of obtaining biographical data that may be necessary to complete the booking process or to provide pretrial services. Id. at 601. The proper post-arrest questions in the Muniz case, however, were identified as being “routine” and were somewhat benign, having concerned the defendant’s name, address, height, weight, eye color, date of birth and age. Id. at 987. The Court did rule inadmissible the unwarned question of when was the accused’s sixth birthday, as it was testimonial and required the suspect to communicate an assertion of fact or belief. “Testimonial” responses, said the Court, “must encompass all responses to questions that, if asked of a sworn suspect in a criminal trial, could place the suspect in the cruel trilemma” of remaining silent, telling the truth and incriminating himself, or giving a false statement. Id. at 597. “The vast majority of verbal statements thus will be testimonial because there are very few instances in which a verbal statement, either oral or written, will not convey information or assert facts.” Id. (citation and quotations omitted).
A question by an impartial booking officer, which asks, for example, the arrestee’s occupation, to which he responds “assassin” or “drug dealer” might be considered to be unlikely to lead to an incriminating response, and therefore might not run afoul of the privilege, despite the clearly incriminating answer. On the other hand, if the officer doing the booking was the arresting officer, and he or she knew that the arrestee was an accused drug dealer, the question might be considered as being designed to lead to incriminating information, and might be inadmissible. Similarly, if during the pretrial services interview the arrestee is asked about his knowledge of, or relationship to the victim, this presents a much greater potential for incrimination, and since it is unnecessary for the officer to gather that information from the suspect herself, the warnings are probably required. “You mean the guy I killed?“ could easily be the answer. Even if the arrestee denies knowledge of the victim, her answer could tend to incriminate her, as the State may be in possession of other evidence which shows that they were indeed acquainted. In the Miranda decision itself, the Court recognized that no distinction should be drawn between statements which constitute full confessions, statements which contain admissions, and statements intended by the suspect to be merely exculpatory (but subsequently used by the prosecution), as all are “incriminating in any meaningful sense of the word and may not be used without the full warnings and [an] effective waiver.”
The gathering of information from the arrestee during the booking and release process potentially implicates the Self-Incrimination Clause. Even when the interrogatory which resulted in the self-incriminating answer is couched within a booking or pre-trial officer’s “standard” questionnaire, defense counsel should scrutinize the questions and make a determination whether the question was reasonably likely, given the case, to elicit a response that is self-incriminating, and one which is therefore protected by the privilege against self incrimination. Defense counsel should move to suppress incriminating statements made during the interview whenever the questioning goes beyond the typical biographical information, or whenever it appears that the interrogator already knew or could easily have found the answer but chose to elicit it from the arrestee’s mouth.
DAVID A. BRENER, Esq.
Chairperson, Criminal Law Practice Section
Capital Qualified Criminal Defense Lawyer
ARRAIGNMENT EXCEPTION SWALLOWS RULE
ARRAIGNMENT EXCEPTION SWALLOWS RULE
In a typical felony case in Lee Circuit Court, defense counsel waives the arraignment by filing a written plea of not guilty. Florida Rule of Criminal Procedure 3.160 provides that the arraignment “shall be deemed waived” if the defendant is represented by counsel and he or she files a written plea of not guilty at or before arraignment. However, barring the filing of a written plea, the rules contemplate that the defendant will be present, either in open court or by audio-visual device, and will be called upon to plead to the charges, the substance of which will be read to him[1]. Rule 3.160(a) provides that:
The arraignment shall be conducted in open court or by audio-visual device in the discretion of the court and shall consist of the judge or clerk or prosecuting attorney reading the indictment or information on which the defendant will be tried to the defendant or stating orally to the defendant the substance of the charge or charges and calling on the defendant to plead thereto.
While the vast majority of incarcerated defendants are represented by public or private defense counsel who waive arraignment for their clients, thus eliminating the need for the defendant’s presence, there are cases and clients for whom counsel may choose not to waive the client’s presence. Sometimes there may be doubts or questions about the competence of the client, and defense counsel may want the court and prosecutor to personally see the behavior of the accused at the earliest opportunity. More frequently, defense counsel who was retained by family members at a point too close in time to the arraignment to visit the client at the jail before the hearing may want the defendant to be aware that counsel has been hired to represent her, and that a not guilty plea has been entered. Sometimes family members have traveled from out of town to see their loved one, who has been incarcerated for thirty three (33) days or more[2], and desire to see the client in court.
More fundamentally, unless waived, incarcerated defendants have the right to know whether charges have been filed, what the specific charges are, and when the next court date will be. They have the right to be informed of this in open court. Arraignment is the first hearing after formal charges have been filed, and thus is a critical stage of the proceedings. Any system which does not provide for the appearance of incarcerated non-capital felony defendants at arraignment would no doubt violate their most basic rights under the Sixth and Fourteenth Amendments to the United States Constitution, and Article I, section 16 of the Florida Constitution. Misdemeanor defendants are “present” at their arraignment, and incarcerated juveniles are physically brought to the courtroom. People who are charged with second degree murder, however, which carries a possible sentence of life imprisonment and for whom an indictment for capital murder may be contemplated, should also be brought over for arraignment unless specifically waived. While the budgetary concerns associated with transport or hooking up the existing audio-visual device in the jail to the courtrooms might concern some, the rights of the accused, and the appearance of not violating those rights, must be paramount. As stated by Rule 3.170, governing pleas, “[e]xcept as otherwise provided by these rules, all pleas to a charge shall be in open court and shall be entered by the defendant.” While this is not mandatory in the state court system[3], the defendant or defense counsel must have a meaningful choice to demand the presence of the defendant in court. Otherwise, the exception has swallowed the rule.
[1] Counsel may waive the formal reading of the charges. Rule 3.160(a).
[2] Arraignments are typically set thirty-three (33) days after arrest to avoid a release on recognizance. Rule 3.134(l).
[3] In some federal circuits, presence of the defendant at arraignment cannot be waived, absent good cause.
It's All Junk: Defense Counsel's Duty to Litigate Forensic Evidence
Recently, a sitting federal judge in Massachusetts issued an amazing pre-trial order – one that requires defense counsel to vigorously challenge fingerprint, ballistic, handwriting, and other trace evidence in pre-trial motions, or be prepared to explain why he or she failed to do so. Relying on the 2009 report of the National Resource Counsel (NRC), District Judge Nancy Gertner of the District of Massachusetts held, given that the court’s treatment of evidence relates directly to the adequacy of counsel’s treatment, it is incumbent upon defense counsel to not presume admissibility, and to challenge such evidence in pre-trial motion practice.
The NRC report noted:
That the forensic science disciplines exhibit wide variability with regard to techniques, methodologies, reliability, level of error, research, general acceptability, and published material….. Many of the processes used in the forensic science disciplines are … not based on a body of knowledge that recognizes the underlying limitation of the scientific principles and methodologies for problem solving and discovery…. [S]ome of these activities [encompassed by the term “forensic science’] might not have a well developed research base, are not informed by scientific knowledge, or are not developed within the culture of science.
A copy of the Order of the court is reprinted below:
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
GERTNER, D.J.
PROCEDURAL ORDER: TRACE EVIDENCE
March 2010
In the light of the 2009 report to Congress of a Committee of the National Academy of Sciences,' NATIONAL RESEARCH COUNCIL COMMITTEE ON IDENTIFYING THE NEEDS OF THE FORENSIC SCIENCE COMMUNITY, STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES: A PATH FORWARD (2009) [hereinafter cited as NRC 2009], this Court orders the following:
At or prior to the pretrial conference, parties are ORDERED to:
a) identify whether or not they seek to introduce trace evidence;
b) state whether or not either party seeks a Daubert/Kumho hearing prior to trial; and,
c) state the witnesses required for the Daubert/Kumho hearing and the
exhibits that the parties seek to admit.
No later than two months before the pretrial conference, counsel must also indicate:
a) if counsel is appointed, whether expert funds are sought to deal with the
trace evidence;
b) whether all discovery obligations under the Local Rules have been met
or whether additional discovery required.
The NRC 2009 report, building on the writing of academic commentators, called for sweeping changes in the presentation and production of evidence of identification involving fingerprints, bullets, handwriting, and other trace evidence. The report noted:
that the forensic science disciplines exhibit wide variability with
regard to techniques, methodologies, reliability, level of error,
research, general acceptability, and published material. . . . Many
of the processes used in the forensic science disciplines are . . . not
based on a body of knowledge that recognizes the underlying
limitations of the scientific principles and methodologies for
problem solving and discovery. . . .[S]ome of these activities
[encompassed by the term “forensic science”] might not have a
well developed research base, are not informed by scientific
knowledge, or are not developed within the culture of science.
NRC 2009 - 1-3
While the report does not speak to admissibility or inadmissibility in a given case, it raised profound questions that need to be carefully examined in every case prior to trial: "1) the extent to which a particular forensic discipline is founded on a reliable scientific methodology that gives it the capacity to accurately analyze evidence and report findings and (2) the extent to which practitioners in a particular forensic discipline rely on human interpretation that could be tainted by error, the threat of bias, or the absence of sound operational procedures and robust performance standards."
NRC 2009 S- 7.
The Report noted that these fundamental questions have not been “satisfactorily dealt with in judicial decisions pertaining to the admissibility” of evidence. Id. To be sure, the court’s treatment of this evidence relates directly to the adequacy of counsel’s treatment. See, e.g. Sturgeon v. Quarterman, 615 F. Supp. 2d 546, 572-573 (S.D. Tex. 2009) (defense counsel's failure to prepare a witness to testify about the unreliability of eyewitness identifications prevented defendant from presenting testimony that would have called into question the only direct evidence against him and was ineffective assistance of counsel warranting habeas relief);
Richter v. Hickman, 578 F.3d 944, 946-947 (9th Cir. Cal. 2009) (en banc) defense counsel ‘s failure to conduct an adequate forensic investigation with respect to blood spatter, serology, and pathology comprised ineffective assistance of counsel warranting habeas relief). See also United States v. Pena, 586 F. 3d 105 (1st Cir. 2009) (affirmed the court's decision not to hold aDaubert hearing on fingerprint testimony where counsel offered no expert or evidence.)
In the past, the admissibility of this kind of evidence was effectively presumed, largely because of its pedigree -- the fact that it had been admitted for decades. As such, counsel rarely challenged it, and if it were challenged, it was rarely excluded or limited. But see United States v. Hines, 55 F. Supp. 2d 62 (D. Mass. 1999) and United States v. Green, 405 F. Supp. 2d 104 (D. Mass. 2005). .
The NAS report suggests a different calculus -- that admissibility of such evidence ought not to be presumed; that it has to be carefully examined in each case, and tested in the light of the NAS concerns, the concerns of Daubert/Kumho case law, and Rule 702 of the Federal Rules of Evidence. This order is entered to accomplish that end.
SO ORDERED.
Date: March 2010 NANCY GERTNER, U.S.D.C.
As stated by one legal expert, “[j]ust because something’s been around for a hundred years doesn’t mean it’s reliable. Astrology has been around for centuries. The stakes are too high in our society to be using junk science and putting it before juries which think that it’s gold.”[1]
David A. Brener, Esquire is a Fort Myers criminal defense attorney who concentrates on homicide cases. He is the Chairperson of Criminal Law Section of the Lee County Bar Association, and President of the Lee County Chapter of the Florida Association of Criminal Defense Lawyers.
[1] John H. Couha, quoted in the Boston Globe, March 29, 2010.
Not Just Wishful Thinking: The ABA Guidelines for the Appointment & Performance of Defense Counsel in Death Penalty Cases
The right to assistance of counsel is not only a right guaranteed under the Sixth Amendment, but is basic to the adversarial system of criminal justice, and is therefore part of the “due process” guaranteed by the Fourteenth Amendment. Faretta v.
In capital cases, not only are the Sixth and Fourteenth Amendments implicated, but the Eighth Amendment and its prohibition against cruel and unusual punishment apply to penalty phase issues. See, e.g., Roper v. Simmons, 543 U.S. 551 (2005) (juvenile death penalty violates the Eighth Amendment ban on cruel and unusual punishment; Atkins v. Virginia, 536 U.S. 304 (2002) (execution of mentally retarded violates the Eighth Amendment); Lockett v. Ohio, 438 U.S. 586 (1978) (Eighth Amendment requires sentencer not to be precluded from considering any aspect of offense or defendant’s character as mitigating factor). Effective assistance in a capital case requires a thorough investigation of the defendant’s entire background and life history, and “the obligation to investigate and prepare for the penalty portion of a capital case cannot by overstated….” State v. Lewis, supra, 838 So.2d at 1113.
The American Bar Association (A.B.A.) Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (hereinafter “Guidelines”or “A.B.A. Guidelines”) have been embraced by the Supreme Court as “well defined norms,” and are “standards to which [the court] long [has] referred as guides to determining what is reasonable.” Wiggins v. Smith, 539
The Guidelines cover a wide range of areas regarding the appointment and performance of counsel and the defense team, as well as funding, the duty of investigation, the duty to assert legal claims, to maintain communication with the client, to seek an agreed upon disposition, to facilitate the work of successor counsel, and to present mitigating evidence. They provide for a “responsible agency” apart from the judiciary and the Bar to adequately monitor and remove attorneys who fail to provide “high quality representation,” and require attorneys involved in capital defense to limit their workloads so as to accomplish this important goal.
The Guidelines “provide that investigations into mitigating evidence should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravators that may be introduced by the prosecutor.” Wiggins, supra, 539
In addition to Wiggins, supra, the Supreme Court reiterated the importance of the Guidelines in several other cases, including Rompilla v. Beard, 545 U.S. 374, 389, n.7 (“The A.B.A. Guidelines relating to death penalty defense are … explicit: Counsel must … investigate prior convictions … that could be used as aggravating circumstances or otherwise come into evidence”), Florida v. Nixon, 543 U.S. 175, 191-192, n.6 (“If no written guarantee can be obtained that death will not be imposed following a plea of guilty, counsel should be extremely reluctant to participate in a waiver of the client’s trial rights,” citing Guideline 10.9.2 Commentary (rev. ed. 2003), and Williams v. Taylor, 529 U.S. 362, 396 (2000) (“Whether or not these omissions were sufficiently prejudicial to have affected the outcome of sentencing, they clearly demonstrate that trial counsel did not fulfill their obligation to conduct a thorough investigation of the defendant’s background”) (citing A.B.A. Standards, 1980).
The
In Peterka v. State, 890 So.2d 219 (
In Armstrong v. State, 862 So.2d 705 (2003), Justices Anstead and Pariente noted in concurrence that “the A.B.A. Guidelines that the Supreme Court concluded should have guided counsel’s investigation in Wiggins should have provided similar guidance to Armstrong’s counsel.”
In Kilgore v. State, 933 So.2d 1192 (2nd D.C.A. 2006), the court noted that the United States Supreme Court has “time and again [cited to] the standards for capital defense work articulated by the American Bar Association as guides.”
Given the evolution of death penalty jurisprudence in the last several years, and the codification of standards requiring “high quality legal representation”, it is no longer sufficient for counsel, for example, to simply put the defendant’s mother on the witness stand in the penalty phase of a capital trial and let her cry in front of the jury. Defense counsel must seek and receive expert assistance, must consider presenting psychiatric, neuropsychological, intelligence, and brain scan testing, and must investigate all aspects of the client’s background, character, and record. Although a mitigation specialist is no doubt an essential member of the defense team, the ultimate responsibility, pursuant to caselaw and the Guidelines, rests with defense counsel. If counsel is to provide the required level of high quality representation, the courts must give him or her the resources, assets, and funding to accomplish this important goal. The matter of life and death deserves no less, and the law of the land requires it.
In sum, the Guidelines are not just wishful thinking. Indeed, in light of the scrutiny which capital cases receive, they are wise practice for judges to help implement, and capital defense lawyers to follow. The Guidelines may be found at 31 Hofstra Law Review (Summer 2003), or on the American Bar Association website, www.abanet.org.
David A. Brener, Esquire is a Fort Myers criminal defense attorney who concentrates on homicide cases and is the Chairperson of Criminal Law Section of the Lee County Bar Association, and President of the Lee County Chapter of the Florida Association of Criminal Defense Lawyers.
Florida's Death Penalty: Problems and Recommendations
In 2006, the Florida Death Penalty Assessment Team, working with the American Bar Association, found a number of problems with the death penalty system in
Among the findings of the Assessment Project, were:
1) Inadequate Compensation for trial counsel in death penalty cases.
2) Lack of qualified capital collateral registry counsel.
3) Inadequate compensation of capital collateral attorneys.
4) Lack of unanimity in the jury’s sentencing decision.
5) Significant capital juror confusion.
6) The practice of judicial override of the jury’s life recommendations.
7) Racial disparity in capital sentencing.
8) Geographic disparity in capital sentencing.
9) The imposition of death on those with severe mental disabilities.
When human life is at stake, there is no room for error or injustice. The assessment team recommended a number of reforms that would help ensure fairness and accuracy in the process. Among the recommendations were:
1)
2)
3)
4)
5)
6)
In addition to these recommendations,
Even those who are not against capital punishment want the system to be reliable and fair. By implementing the changes recommended by the Assessment Team,
David A. Brener, Esq. is a
Limitations on the Scope of Voir Dire
In trying criminal cases in state court, the importance of jury selection cannot be overstated. Occasionally, however, defense counsel will encounter a trial judge who attempts to severely limit the scope of the voir dire examination. This may take the form of limiting questions about the defense in the case, or may include prohibitions on questioning the venire about constitutional protections and concepts.
Florida Rule of Criminal Procedure 3.300(b) provides for a reasonable voir dire examination of prospective jurors by counsel. The scope of meaningful voir dire which will satisfy the constitutional imperative of a fair and impartial jury depends on the issues in the case to be tried. Voir dire Ashould be so varied and elaborated as the circumstances surrounding the juror under examination in relation to the case on trial would seem to require….@ Lavado v. State, 469 So.2d 917 (Fla 3d DCA 1985). Where a juror=s attitude about a particular legal doctrine is essential to a determination of whether challenges for cause or peremptory challenges are to be made, the scope of voir dire properly includes questions about and references to that legal doctrine. Id. (citing Pait v. State, 112 So.2d 380).
In Lavado, supra, the trial court advised defense counsel that it was “not proper on a jury selection to go into law,” and permitted counsel only to ask general questions about the ability to follow the court’s instructions. Id., at 1322. Quoting the dissenting judge in the court of appeal opinion, the supreme court said that “[i]f he knew nothing else about the prospective jurors, the single thing that defense counsel needed to know was whether the prospective jurors could fairly and impartially consider the defense….” Id. (citation omitted). It therefore reversed the conviction.
Similarly, in Helton v. State, 719 So.2d 928 (3rd DCA 1998), the court held that it was error to preclude defense counsel from questioning the venire with respect to its understanding of the defense. Id., at 930. The court therefore reversed and remanded, noting that “defense counsel must be allowed the latitude to make sufficient inquiry into jurors’ attitudes toward the defense.” Id.
In Walker v. State, 724 So.2d 1232 (4th DCA 1999) the court held it was an abuse of discretion to preclude defense counsel from fully inquiring of the jurors as to both their understanding of, and their opinions about, the defense of entrapment. In Lavado, supra, the court would not permit inquiry into voluntary intoxication. 495 So.2d at 1322. Limitations on questioning about a specific recognized defense are clearly improper.
In Ingrassia v. State, 902 So.2d 357, the court precluded defense counsel from questioning the jury about the defendant’s alleged recanted confession. Id. The trial court evidently believed that defense counsel was improperly “pre-trying” his case and would not permit inquiry into juror bias on the subject of recanted statements. Id. Similarly, in Perry v. State, 675 So.2d 976 (4th DCA 2006), the court held that restricting inquiry into whether a confession could be false was an abuse of discretion. Id., at 979. In Moses v. State, 535 So.2d 350 (4th DCA 1988), the court reversed because the trial court restricted defense counsel’s questioning about the defendant’s status as a convicted felon. Finding no distinction between questions about legal doctrine and questions designed to undercover bias, the court held that “a defendant must be permitted to conduct a ‘meaningful’ voir dire and what constitutes a meaningful voir dire varies with each case.” Id., at 351. Thus, the inquiry of counsel need not be limited to a strict definition of “defense.”
In Mosely v. State, 842 So.2d 279 (3rd DCA 2003), the court held that counsel must be permitted to question the prospective jurors about the defense of misidentification, and also held that the court cannot preclude the defense from exploring other critical issues, even if those areas are covered by the trial court’s questioning. “[T]he trial court cannot question prospective jurors on critical areas such as the presumption of innocence, burden of proof, and the right to silence, and then preclude counsel from further individual examination under the guise that it would be repetitive”. Id., at 280 (citations omitted). See Ramirez v. State, 90 So.2d 332 (3rd DCA 2005) (trial court’s admonition to counsel not to talk about reasonable doubt, burden of proof, and all that stuff” before jury selection improper).
In Miller v. State, 683 So.2d 600 (2nd DCA 1996), the court noted that prospective jurors do not respond in the same way to inquiry by a judge as they do to questions by defense counsel. Id., at 600-601. For this reason, the court may not cover “the most important areas of inquiry and then forbid…defense counsel from further exploration.” Miller v. State, 785 So.2d 662, 664 (3rd DCA 2001). Thus, when trial judges choose to question potential jurors extensively, they should not do it in such a way as to impair counsel’s right and duty to question the venire. Id., at 664.
As stated by Judge Fulmer of the Second District, “lack of adequate voir dire can infringe on the accused’s constitutionally guaranteed right to a fair and impartial jury. Jurors’ attitude about a legal doctrine or law can be essential in a particular case to a determination of whether challenges for cause or preemptory challenges should be made. The scope of voir dire properly includes questions about and references to such legal doctrines.” Nicholson v. State, 639 So.2d 1027 (2nd DCA 1994) (citations omitted).
In defending their clients, defense counsel should object to limitations on voir dire, and, in order to preserve the record, proffer the questions that would be asked of the venire if permitted to do so. In addition, counsel must object to the panel at the time that jury selection is completed in order to raise the issue on appeal.
David A. Brener, Esq. is the President of the Lee County Chapter of the Florida Association of Criminal Defense Lawyers, and Chairperson of the Criminal Law section of the Lee County Bar.
The Bottom Line: Death Penalty Costly
As noted by the circuit court judge, in these tough budget times the legislature could conceivably save millions of dollars by eliminating the death penalty. Contrary to popular belief, it costs considerably more to execute someone than to keep them in prison for life. While an exact amount cannot by determined, credible reporters, such as the eminent judicial college death penalty teacher Judge O.H. Eaton, have cited studies that suggest that it costs six (6) times more, or three point two million dollars ($3,200,000) to execute someone.
The Death Penalty Information Center maintains that
David A. Brener, Esq.
Brener is a Fort Myers criminal defense lawyer who concentrates on homicide cases. He is the current Chairperson of the Criminal Law Practice Section of the Lee County Bar, and a past President of the local chapter of the Florida Association of Criminal Defense Lawyers.
Subscribe to:
Posts (Atom)
