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.

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[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. California 422 U.S. 806, 817 (1975). In Strickland v. Washington, 466 U.S. 668 (1984), a Florida case, the Supreme Court set forth the test for determining, under the Sixth Amendment, the standard for allegations of ineffectiveness. In order to establish a claim of ineffective assistance of counsel, a defendant must demonstrate that counsel’s performance was deficient, and that, due to that deficient performance, the defendant was prejudiced. Id., at 687. “Generally, prejudice is established by a finding that, but for the ineffective assistance of counsel, a reasonable probability exists that the outcome of the proceeding would have been different, or that as a result of the ineffective assistance, the proceeding was rendered fundamentally unfair.” State v. Lewis, supra, 838 So.2d 1102, 1112 (Fla. 2002).

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 U.S. 510, 524 (2003) (citations and internal quotation omitted). The Guidelines are intended to ensure the provision of “high quality legal representation” in capital cases, and apply from the moment the client is taken into custody for a homicide which could result in a possible sentence of death. Guideline 1.1.

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 U.S. at 524. (Citations and internal quotation omitted). This, according to the Court, includes at a minimum “medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experience, and religious and cultural influences.” Id.

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 Florida courts have also cited the Guidelines in determining whether counsel’s conduct is reasonable in the context of capital litigation. In Henry v. State, 937 So.2d 563 (Fla. 2006), the supreme court stated that “[c]ertainly, both Wiggins and the A.B.A. Guidelines for Appointment and Performance of Counsel in Death Penalty Cases section 10.11 (rev. ed. 2003) on counsel’s duties mandate mitigation investigation, even if the client objects.” Id., at 573.

In Peterka v. State, 890 So.2d 219 (Fla. 2004) the court again quoted Wiggins and cited the A.B.A. Guidelines for the proposition that counsel should make efforts to discover any available mitigating evidence and evidence that rebuts the aggravating factors listed in Florida Statute 921.141(5). Id., at 236.

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.” Id., at 723. The Guidelines, said the learned Justices, “underscore not only the importance of defense counsel’s investigation into mitigating factors, but also the understanding that often strategy shifts between the penalty and guilt phases of a capital trial.” Id. Although preparation for both phases is essential, the justices noted that “the penalty phase of a death penalty trial is constitutionally different from sentencing proceedings in other criminal cases.” Id., citing Guidelines 11.8.1 (1989). The opinion, after noting that the Wiggins court “relied heavily on the A.B.A. standards for … determining what is reasonable,” Id., at 722, concluded by stating that “[our] hope is that judges and lawyers will heed the message of Wiggins.” Id., at 725. (Internal quotations and citations omitted).

In Kilgore v. State, 933 So.2d 1192 (2^nd 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.” Id., at 1196. Thus, even though the Guidelines have not been formally adopted in Florida, Id., the Wiggins, case “now stands for the proposition that the A.B.A. standards for counsel in death penalty cases provide the guiding rules and standards to be used in defining the prevailing professional norms….” Hamblin v. Mitchell, 354 F.3^rd 482, 486 (6^th Cir. 2003). These standards represent “a codification of long standing common sense principles of representation understood by diligent competent counsel in death penalty cases. The A.B.A. standards are not aspirational in the sense that they represent norms newly discovered after Strickland. They are the same type of long standing norms referred to in Strickland in 1984 as ‘prevailing professional norms’.” Hamblin, supra, 354 F.3^rd at 487.

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 Florida. This assessment focused exclusively on capital punishment laws and processes and did not consider, as a matter of morality, philosophy, or penology, whether Florida should have a death penalty.

Florida leads the nation in death row exonerations. According to the study, Florida has exonerated twenty two (22) death row inmates, who served a combined total of one hundred and fifty years in prison before being released. One inmate, Frank Smith, died of cancer while waiting to be executed. He was exonerated posthumously.

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) Florida should protect innocent death row inmates by investigating wrongful convictions and preventing similar injustices in the future.

2) Florida should ensure that all capital defendants receive adequately compensated lawyers.

3) Florida should require jurors to make the ultimate sentencing decision.

4) Florida should require juror unanimity before imposing the death penalty.

5) Florida should ensure that its clemency process is transparent and open.

6) Florida should collect and analyze data to determine whether its death penalty system is fair and accurate. Other states such as Connecticut, New Jersey, and California have created commissions consisting of judges, prosecutors, and defense attorneys, who together have the credibility to recommended specific reforms of their death penalty systems. Florida should do the same.

In addition to these recommendations, Florida should require that all statements or confessions of murder suspects are video recorded, that informant testimony is determined by the court to be reliable and corroborated before presentation to the jury, and that the jury instructions adequately define and explain mitigation and its ability to justify the imposition of a sentence less than death.

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, Florida can increase reliability in the fact finding process, and limit the potential for the excecution of the innocent.

David A. Brener, Esq. is a Fort Myers criminal defense attorney who concentrates on serious felony and homicide cases. He is the current chairperson of the Criminal Law Practice Section of the Lee County Bar, and President of the Lee County Chapter of the Florida Association of Criminal Defense Lawyers.

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 (3^rd 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 (4^th 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 (4^th 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 (4^th 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 (3^rd 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 (3^rd 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 (2^nd 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 (3^rd 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 (2^nd 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

Recently, a sitting circuit court judge in Seminole County recommended the abolition of the death penalty in Florida. The reason for the jurist’s anti-death penalty stance was not grounded on moral repugnance of state-sponsored homicide. His opinion was not based on the fact that the death penalty is not a deterrent. The judge’s views were not founded upon his observations of the often arbitrary way that some are selected for capital punishment, while the majority of others alleged to have committed equally heinous crimes are not charged with capital murder. Despite numerous recent D.N.A. exonerations, including ten (10) in Florida, the judge’s recommendation to abolish the death penalty was based on a much less lofty consideration – it’s expensive. That’s right – money.

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 Florida spends fifty-one million dollars ($51,000,000) a year more to execute people convicted of first degree murder than to keep them in prison for life without parole. A capital case involving a serial killer can cost several million dollars, up to the twelve million ($12,000,000) it reportedly cost to execute Ted Bundy. Given the relatively small number of actual executions, keeping the death penalty on the books cost Florida taxpayers twenty-four million dollars ($24,000,000) per execution. That’s big money!

If considerations such as morality, fairness in implementation, holy mercy, or the absolute irrevocability of the death penalty will not succeed in moving the legislature to abolish state sanctioned homicide, maybe the bottom line will. Those of us striving to put an end to capital punishment in Florida would no doubt much prefer if that occurs as a result of a new enlightenment and the vindication of our anti-death penalty views. However, when it comes to the matter of life over death, we’ll take life over death for any darned reason whatsoever, even those devoid of substantive considerations. I suspect those on death row would, too. And that is the bottom line.

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.

David Brener is capital qualified for representation on death penalty cases, and is peer review rated "AV Preeminent" in Criminal Law by Martindale Hubbell.

The Necessity for a Special Instruction on Heat of Passion Manslaughter

Homicide can be divided into degrees, as in first, second, or third degree murder, or manslaughter. See Florida Standard Jury Instruction 7.1. Homicide can also be divided into lawful and unlawful killings. See section 782.04, 782.07 Florida Statutes. A killing which is justifiable or excusable is lawful, while an unlawful killing is any other kind of homicide. See 782.02, 782.03 Florida Statutes.

Justifiable homicide is a killing committed by the justifiable use of deadly force, that is, one committed in self-defense or the defense of another. See 782.02 Florida Statutes; Florida Standard Jury Instruction 3.6(f). Excusable homicide occurs when the killing is committed by “accident and misfortune in doing any lawful act by lawful means with usual ordinary caution, and without any unlawful intent, or by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, without any dangerous weapon being used and not done in a cruel or unusual manner.” Section 782.03 Florida Statutes.

The excusable homicide statute was first enacted in 1868, and was revised in 1892, 1906, 1920, 1927, and 1975. It reflects a time when the heat of passion component, such as might occur if, for example, a man found his wife in bed with another man, was deemed to be a complete defense to the charge. The statute to this day purports to completely excuse a killing done in the heat of passion, so long as there is “sufficient provocation.”

The current standard jury instruction does not define the words “heat of passion,” and a jury instruction which gave that definition was deleted by the Florida Supreme Court some years ago. Moreover, the instruction, which makes heat of passion homicide a complete defense to the charge of murder, does not reflect the values of our maturing society or reflect the views of most potential jurors. Perhaps this is why there are so few outright acquittals where the defense is heat of passion, despite evidence of provocation.

It is for this reason that a special instruction for heat of passion manslaughter should be requested when counsel is trying a charge of murder and the defense is excusable homicide. Although the standard jury instruction does not cover a manslaughter committed in the heat of passion, see Florida Standard Jury Instruction 7.7, Florida caselaw does recognize heat of passion manslaughter.

In Paz v. State, 777 So.2d 983 (3^rd DCA 2000), the court recognized that:

[t]he law reduces the killing of a person in the heat of passion from murder to manslaughter out of recognition of the frailty of human nature, of the temporary suspension or overthrow of the reason or judgment of the defendant by the sudden access of passion and because in such case there is an absence of malice. Such killing is not supposed to proceed from a bad or corrupt heart, but rather from the infirmity of passion to which even good men are subject. Passion is the state of mind when it is powerfully acted on and influenced by something external to itself. It is one of the emotions of the mind known as anger, rage, sudden resentment, or terror. But for passion to constitute a mitigation of the crime from murder to manslaughter, it must arise from legal provocation.

Id., at 984. For the defense to apply “there must be adequate provocation ... as might obscure the reason or dominate the volition of an ordinary reasonable man. Id. citing Rivers v. State, 75 Fla. 401, 78 So. 343, 345 (1918)(internal quotations omitted).

In Palmore v. State, 838 So.2d 1222 (1^st DCA 2003), the court held that giving the standard jury instruction on excusable homicide in place of defendant's requested instruction on heat of passion manslaughter may constitute reversible error.

In discussing the trial court’s error, the Palmore court explained,

[t]he State's only argument is that the standard jury instruction is sufficient. The State's argument is without merit. The standard jury instructions contain the term “heat of passion” only once. The instruction is based on section 782.03, Florida Statutes, which defines excusable homicide, and the term “heat of passion” itself is not defined in the instruction.

In the case at bar…the jury was instructed that if they found that [defendant] acted in the heat of passion, the killing would be “excusable” and therefore “lawful.” The standard jury instructions do not contain language which would inform the jury that, pursuant to Florida law, if they believed Appellant's passion resulted in a state of mind where depravity which characterizes murder in the second degree (is) absent, they could return a verdict of manslaughter. Accordingly, the jury was not properly instructed on Appellant's theory of defense.

Id. at 1224 -1225 (internal quotations, citations, and footnotes omitted).

Thus, a jury may find complete exoneration for a killing to be unwarranted, but may find, depending on the circumstances surrounding the homicide, that “sufficient provocation” existed to justify a conviction for manslaughter rather than murder in the first or second degree. An instruction to that effect is supported whenever the depravity which characterizes murder is negated by evidence of provocation.

Prosecutors and defense counsel should always research the law to determine if the caselaw is accurately reflected in the standard jury instruction. As can be seen in the context of heat of passion manslaughter, a standard jury instruction is not necessarily a correct statement of the law. In this situation, a special instruction should be proposed by counsel, and if warranted, provided by the trial court.

David A. Brener is a Fort Myers criminal defense attorney and Chair of the Criminal Law section of the Lee County Bar and President of the Lee County Chapter of the Florida Association of Criminal Defense Lawyers.

Fort Myers triple murder case: Mistrial granted after jury hangs.

Fort Myers homicide lawyer David A. Brener (239-332-1100) writes about the recent mistrial in a triple murder case. The recent mistrial in the triple murder case involving defendant Loubert Jules was a great example of our system at work. The only evidence against Jules was the testimony of two cooperating co-defendants, both drug dealers and users. There was absolutely no physical evidence linking the defendant to the scene of the crime or the bodies of the victims, and this obviously weighed heavily on at least one juror's mind. The jury could not reach a unanimous agreement, and a mistrial was declared as the jury was "hung." A hung jury means that the state can try him again, as double jeopardy does not attach to a mistrial, unless it was intentionally caused by the prosecutor. This is the only case I know of where a man was accused of killing three people, and the state did not seek to indict him on first degree murder charges and seek the death penalty. They really must have had a poor case if even the prosecution did not feel comfortable seeking the ultimate punishment in a triple murder case where the victims were beaten and then killed execution- style.

This is another example of the arbitrariness of the death penalty. The "Cash Feenz" case was a double murder case, and there was no real physical evidence linking my client, Kemar Johnston, to the crimes, but the state not only sought the death penalty, but would not entertain any plea to any sentence less than death. Fortunately, the jury in that case unanimously recommended life in prison, and the trial judge, who gave both sides a very fair trial, imposed it. The choice of prosecutor, the amount of media attention, and the lifestyle and race of the victim should not make a difference in whether the death penalty is sought, but both research and the experience of those in the capital defense community show that it does.
In Jules' case, fortunately the right call was made in the first instance by the state not seeking death, and by at least one juror in the second instance by refusing to convict on the uncorraborated word of two snitches.
David A. Brener, Esq.
2133 Main Street
Fort Myers, Fl. 33901
(239-332-1100)
http://www.justiceisourpassion.com/