In-Depth Look at the Law: The Offices of Criminal Conflict and Civil Regional Counsel (OCCCRC) - An Unacceptable Situation for Everyone Involved

One attempt at solving the indigent defense problem was the creation of a state agency made up of five offices to be called Offices of Criminal Conflict and Civil Regional Counsel ("OCCCRC") by the Florida Legislature in Chapter 2007-62. The idea was that full-time attorneys on a set salary in these new regional offices would theoretically solve at least part of the judicial appointment problem by taking on public defender cases where there was a conflict of interest (which is common in multi-defendant cases) -- as well as supervising court-appointed attorneys in child dependency cases and assorted civil actions. Sounded good.

Truth is, the OCCCRC lawyers haven't even been given a fair shake, they've been asked to play the game without a full deck of cards. The OCCCRCs aren't even getting the basics to do their job.

For example, the Fourth District OCCCRC has complained that it doesn't even have ordinary supplies and internet access for months at a time. In today's world, how can an attorney represent a client effectively without internet access? Legal research, communication and filing with the courts, e-mail, etc. are all done over the internet. How any lawyer at the OCCCRC can practice law each day is a miracle in action, and my hat is off to them. No wonder there's such a high turnover there.

And, adding insult to injury, these OCCCRCs are being sued. That's right - they have become defendants in their own right. Apparently, several counties throughout Florida have taken the position that OCCCRCs are not "public defender offices" at all under Florida law. Using this legal argument, counties aren't legally responsible to pay for the expenses of their local OCCCRC (pursuant to Article V, section 14 of the Florida Constitution).

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Will New DNA Testing Free Florida Death Row Inmate David Eugene Johnston, Who Was Set to Die on May 27th?

Last Friday, the Florida Supreme Court received the lab report from the state crime lab on the DNA evidence pertaining to the murder of Mary Hammond in 1983, and the conviction of David Eugene Johnston for that crime.

Johnston was set to be executed by the State of Florida on May 27, 2009 - but the Florida Supreme Court stayed the execution so DNA testing of the evidence could be performed. After all these years, the state still has not only safeguarded Johnston's shorts, socks, and shoes but also fingernail clippings from the victim (which contain skin and blood evidence from a male).

The State Crime Lab report had no concrete result for the high court: instead, the formal recommendation was for more testing with better technology. Today, two labs are involved: one chosen by Johnston's attorneys (in Ohio) and one by the prosecutors (in Virginia).

Curiously - and tellingly, prosecutors had opposed DNA testing in this case, arguing (unsuccessfully, of course) to the high court that there was more than enough evidence to confirm Johnston's guilt without doing the testing. Two questions come to mind:

1. If it's so clear that he's that guilty, then why wouldn't the prosecutor just go along with the defense motion stand and let Johnston's request for testing just provide further support for the state's case?

2. Why not automatically insure that DNA testing has been performed before any execution is performed in this country? Surely this isn't too much to ask.

The Elusive Memo by U.S. Supreme Court Nominee Sonia Sotomayor -- What is Her Position, Today, on the Death Penalty?

As I'm sure you know, Sonia Sotomayor has been nominated by President Obama to replace retiring Supreme Court Justice David Souter. For those concerned about capital punishment, it hasn't been that easy to determine exactly what the nominee's position is on the death penalty.

The Elusive Sotomayor Memo.

Judge Sotomayor did not include something she wrote over 20 years ago as part of her confirmation submission. While that may have been oversight, some are suggesting that it means something more - particularly when, for a time, it was hard to find the memo itself to read its full text. (It's been found.   Here's a copy if you would like to review it, provided by the folks over at Crime and Consequences.)

Prosecutors worry about her.

Check out 22-year law enforcement veteran Bruce Castor's concerns, as he discusses the Pennsylvania case of Joseph Kindler in an editorial he wrote for The Patriot News.

Defense attorneys worry about her.

Check out Jeff Gamso's concerns - which also include a review of Sotomayor's precedent and past history dealing with the police - at his blog, Gamso for the Defense.

And, over at Crime and Consequences, they try and take an undecided approach to the issue - viewing the memo as neither a supporter nor an opponent of the death penalty - to see what this memo tells us. It's a lengthy analysis, and worth the read.

The Catholic Perspective on the Death Penalty

Today, FloridaCatholic.org published on its website a 12-page synopsis of the Catholic position regarding the death penalty, and in doing so provides readers with a solid, easy read on why the Catholic Church is vehemously opposed to Capital Punishment.

I highly recommend that those interested in this issue take the time to read through this article, as well as the links it provides. It's not easy to take such a complicated issue and hone it down into a concise presentation such as this, and my hat's off to writers Laura Dobson and Denise O'Toole Kelly for their efforts.

Allegedly Improper Communications Between Judge and Broward County Prosecutor Gets Death Row Inmate Omar Louriero a New Trial

Omar Loureiro will be tried a second time for the murder of a Lighthouse Point man who he had gone home with from a local bar: right now, he's setting on Death Row for this crime.

In 2007, Loureiro was tried for first degree murder in the case, found guilty, and sentenced to death. Two years later, he's going back in the courtroom - and it's all because of the actions of the judge and the prosecutor in his first murder trial. (The new trial date hasn't been set.)

Testimony that Judge and Prosecutor Discussed the Case Over Dinner

Bottom line, there was testimony by Broward County prosecutor Sheila Alu that she had dinner with both Judge Ana Gardiner and prosecutor Howard Scheinberg, where they talked about the case, days before Loureiro was convicted. In fact, Alu testified that they had joked about the case.

Judge and Prosecutor Tell Their Side

The judge and prosecutor Scheinberg gave testimony, too - they admitted to an "appearance of impropriety," because they ran into each other at the restaurant while the trial was ongoing, but they denied discussing, much less joking, about Mr. Loureiro's trial. Critically, both also revealed in their testimony that they talked on the phone (cellphones, not office landlines) about the Louriero case sometime between this restaurant event and Mr. Louriero's sentencing several months later.

The Appearance of Impropriety is the Standard

Looks bad, especially since all attorneys everywhere recognize that phrase "appearance of impropriety" all too well. It's engrained early on that attorneys (and judges) are to err on the side of caution - we're not to give even a suggestion that anything inappropriate is taking place.

The Recent Texas Judge and Prosecutor Case Comparison

Of course, things can get much worse than this. Much worse. Over in Texas, it was revealed last year that a trial judge and the district attorney assigned to her courtroom had been carrying on a secret love affair for many years - and no one knew (though there was much courthouse gossip suggesting it) until one of the prosecutor's assistants blew the whistle on the two, which resulted in at least one Texas Death Row conviction being overturned thus far.

Charles Hood's conviction was overturned last month with the court ruling he had received an "unfair trial" due to the relationship between the judge and the prosecutor during his murder trial - and this, without any direct evidence that the judge and the district attorney ever spoke about the case directly.

In Depth Look at the Law: Indigent Defense Crisis Part Two, How We Got Here -- the Legislature's Attempts to Cut the Budget With Criminal Defense Dollars Created this Catastrophe

There are, of course, the realities of today's economy that we must consider here. Recently, there was a news release that one out of every six dollars that Americans receive comes from a government source. Governments must be extremely careful with their dollars, given the current economic situation.

By revamping the indigent defense statutory scheme, the Florida Legislature undoubtedly was trying to be fiscally responsible to state taxpayers. Indeed, there have been significant budgetary cuts through legislation for state attorney offices and the state court system, as well as the indigent defense bar. The Legislature hasn't focused on just one segment of the judicial branch's expenditures. (The Florida Legislature has the power to review and approve court budgets, etc., through specific legislative guidelines, such as Chapter 216 of the Florida Statutes, Court Statutory Budget Controls.)

Still, the Legislature has created a true crisis in its attempts to save money. The situation is grim. The Florida Bar's Criminal Law Section has hosted more than one "Budget Summit" to try and find a solution to this dilemma, but so far a solution has not been found.

Money has become so tight that even indigent defendants are being charged $100 to cover their own prosecution costs. Think about that. An innocent man, poor and unable to make bail, is being asked to pay $100 to cover the expenses to prove himself not guilty of the charges asserted against him. There's something just plain wrong about this.

And right now, there is no concrete solution to an exploding problem in this State. This is something that is impacting everyone and we all need to be involved in finding answers here.

Next week: Public Defenders and the OCCCRC Don't Solve the Problem but Add to the Crisis With their own unmet budgetary needs

Florida Death Row Inmate Sues Estate of Murder Victim for Ownership of Truck

There will be many people who read about the actions of Florida Death Row inmate William Deparvine with disgust, or anger, or both - and with his appeal on the truck claim going forward, there will many more new stories to invite further emotional response to Deparvine's actions.

Who is William Deparvine?

William Deparvine is currently housed in the Death Row Unit of the Union Correctional Institution in Raiford, Florida. He's been found guilty of murdering Richard and Karla Van Dusen and he's been sentence to death for these crimes. This criminal conviction is being appealed.

Deparvine is an Excellent Example of a "Jailhouse Lawyer"

Many inmates in facilities across the country spend lots of time learning the law - and then sharing their information with fellow inmates, as well as entering the system with their own handwritten filings and letters to the court. However, in the case of William Deparvine, he's gone further than most: Deparvine has filed a lawsuit, representing himself (acting "pro se"), seeking to gain title to a classic pick-up truck from the Estate of Richard Van Dusen.

What many find particularly reprehensible about this act is that Deparvine met Van Dusen and his wife through a classified ad placed to sell the classic truck, and killed them while he was purportedly discussing its purchase with them. The jury found that the "bill of sale" for $6500 from VanDusen to Deparvine was not legit, and there is no other evidence that a sale ever took place. The executor of the Van Dusen Estate sold the truck shortly after the deaths - so all that Deparvine can hope to achieve, should he win his case, is a monetary sum. Many view this civil suit as a strategy on Deparvine's part to favorably impact his pending criminal appeal.

Still, Deparvine has survived the first level of any lawsuit without being thrown out. He has lost at the trial court level, but his case was not dismissed on grounds for which other jailhouse lawsuits are notoriously booted: lack of jurisdiction, for example, or failure to state a claim upon which relief can be granted.

Deparvine, the Jailhouse Lawyer, has successfully taken his case to the appellate level and his arguments are being considered by the 2d District Court of Appeals. Even the Van Dusen Estate's counsel has given Deparvine his due, as he was quoted in the media as saying "[Deparvine]'s one of the best jailhouse lawyers I've seen."

Deparvine Is Also an Example of Death Row Inmates Still Having Legal Rights

Due to the heinous nature of the crimes upon which their sentences are based, many Death Row inmates are considered by much of the public - as well as many in authority, truth be told - as not having any legal rights once they have been assessed capital punishment. And, while it is true that many of their rights have been taken from them as they live, day after day, in those small Death Row cells, they are still U.S. citizens and they still have many of the same legal rights as you and I.

For instance, they can still file suit. And, they can still seek monetary damages. As William Deparvine is educating so many with his Classic Pickup Truck lawsuit today.

I Will Be A Guest on Issues with Jane Velez Mitchell Tonight

Once again, I am honored to be a guest on Issues with Jane Velez Mitchell tonight, where the topic will be Andrea Lyon's request to the court that any ruling regarding the release of a video made of Casey Anthony being informed that a body had been discovered (which later was identified as that of her daughter Caylee) be delayed -- so that the defense can have time to investigate media leaks by the State.

In Depth Look at the Law: Florida's System of Insuring Legal Representation for the Indigent Must Be Changed

In our new series, we'll be looking at Florida's indigent defense system, particularly as it applies to cases where capital punishment is being sought. How are attorneys chosen and compensated for representing the criminal defendant who is without funds to pay for his own defense, especially those facing the death penalty? How is Florida's current indigent defense system critically flawed?

The Florida Legislature Provides for Compensation of Attorneys Who Represent Poor (Indigent) Criminal Defendants in State Matters

First, let's review the action of the Florida Legislature in the past few years. Before the current system was put in place, Florida provided for indigent criminal defense through Chapter 27 of the Florida Statutes. There, a collection of private criminal defense attorneys offered themselves for appointment by the courts in the defense of impoverished defendants in criminal cases under Judicial Administrative Commission (JAC) contracts. The attorneys worked on behalf of their clients, who were entitled to representation by an attorney under the law. In return, these attorneys were compensated by the government.

The 2007 Changes by the Florida Legislature Made Appointments Financially Not Viable for Most Criminal Defense Attorneys

The Chapter 27 system was changed, however. Under the new statutes, Chapter 2007-62, Florida indigent criminal defense effectively discouraged attorneys from placing their names on the list for court appointments and JAC contracts. This occurred in several ways:

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Texas Governor Rick Perry Makes History at 200 Executions with the Death of Terry Hawkins Last Night

The role of state governors cannot be underestimated in any death penalty case: this one man or woman has the ability to save a life by commuting a death sentence to one of life imprisonment. Rick Perry has been known to exercise this power and commute death sentences in the past, but not this week.

Governor Rick Perry Makes U.S. History

This week, Rick Perry far surpasses the infamous 152 executions of Texas Governor George W. Bush with the execution of Terry Lee Hankins on June 2, 2009. In fact, Hankins' death brought Perry's capital punishment total to a record-breaking 200 deaths.

That's right. Two hundred. 200.

With this record, Rick Perry has insured his place in history as the governor who has allowed more executions to take place in his state than any other governor in U.S. history.

A Remarkable Feat, Especially Considering Criminal Justice in Texas Right Now

Amazing as this is, Perry's landmark is even more incredulous given that he is governor of the same state where:


  1. the Innocence Project in Dallas has found a record number of wrongful convictions using DNA genetic testing and analysis (many of them being Death Row convictions of innocent men);

  2. the Harris County (Houston) Crime Lab, which handles a huge work volume, is notoriously known for a "team mentality" that has generated numerous false convictions; and

  3. the Chief Justice of the highest state court overseeing criminal matters, Sharon Keller of the Texas Court of Criminal Appeals, is being tried AND impeached for her bad acts involving a failed motion to stay the conviction of Death Row inmate Michael Richard.


Protests Against Governor Perry Come From All Over the Globe

Formal protests against this 200th Execution reached all over Texas and the nation, indeed throughout the world, with groups as far as Leipzig, Germany; Paris, France; Brussels, Belgium; and Montreal, Canada, organizing formal demonstrations against the 200th Texas execution. A website has been created to unify the various protests at www.protest200executions.com.

If you would like to voice your opinion to Governor Perry, please feel free to do so: he can be reached at (512) 463-1782.

U.S. Supreme Court Rules on Bies Case - Ohio Can Have A Second Sentencing Trial to Try and Impose Death Penalty on Mentally Retarded Defendant

Last month, the pending case of Michael Bies was discussed here - Bies, held to have an IQ of 63, had been sentenced to die by the State of Ohio and advocates for Bies took his case to the highest court in the land in protest. Testimony had been provided that Michael Bies was functionally mentally retarded.

We don't execute the mentally retarded in this country; this has been held to violate the Eighth Amendment as being cruel and unusual punishment in Atkins v. Virginia, 536 U.S. 304 (2002).

Supreme Court Rules That Bies' Case Goes Back to Ohio for Further Proceedings

Nevertheless, today the U.S. Supreme Court has announced that the Bies case can return to Ohio for another trial on the appropriate sentence for his crime. (Bies has been found guilty of the kidnap and murder of a 10-year-old boy.) Why? The Court has found that the federal appellate court was too speedy in throwing out capital punishment for Michael Bies because the federal court acted before the 2002 ruling by the U.S. Supreme Court on the subject.

"Mental retardation was not a conclusive or necessary determination in any Ohio court proceeding to date," according to Justice Ruth Bader Ginsburg.

Attorneys for Michael Bies will return to the Ohio courtroom, where another sentencing trial will be had. At that proceeding, they'll argue once more that Bies must be spared the death penalty because of his mental retardation - and the prosecution will once again fight for the death of Michael Bies.

 
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