Terence Lenamon is in trial today defending Markeith Loyd in what appears to be a day-long proceeding involving dozens of motions. Watch it live at Wild About Trials (or view it in the archive).
In two of Terry Lenamon’s capital cases, he has filed motions for continuance of the trial dates because of funding issues. The motions have been filed in the Loyd proceeding as well as in State of Florida v. Paul Hildwin. Full copies of these motions, together with the State’s Response and the Notice of Discovery in Hildwin, have been placed in Terry’s online library.
Impending Trial Dates in Both Death Penalty Cases
In both these matters, Terry and the criminal defense team face preparing for major death penalty trials in short order:
- Loyd is set for trial on May 9, 2019. That is 163 days from today (November 27, 2018).
- Hildwin is set for trial on April 1, 2019. That is 125 days from today (November 27, 2018).
Requests for Continuing Trials Because of Florida Justice Administrative Commission (JAC) Shortfall
However, there is an issue with funding for these indigent cases.
From the Motions (pp 2- 4)(emphasis added):
In Arbelaez v. Butterworth, 738 So.2d 326 (Fla. 1999), Capital Collateral Regional Counsel (CCRC) for the northern and southern regions of Florida asked the Florida Supreme Court to “exercise its all writs jurisdiction to stay all applicable time limits, court proceedings, and executions until adequate funding was provided to CCRC or until July 1, 1998, the start of the next fiscal year.” Before the Court could decide the issue directly, the funding in question “significantly changed and increased” causing a substantial change in circumstances, thus depriving the Court of a case or controversy to rule on. Id. at 326-327. Nearly 20 years later, the State of Florida is once again facing a significant shortfall in funds that have been made available for representation of defendants in capital cases.
On October 2, 2018, Cris Martinez, General Counsel to the JAC, issued a memorandum (attached hereto) to the JAC Commissioners projecting an approximate $16.4 million shortfall for the fiscal year. Nearly $10 million of that shortfall is connected to Criminal Conflict case costs, which includes all due process providers (experts, investigators, etc.) and related expenses. The original appropriation for Criminal Conflict case costs for the fiscal year was set at $25,484,827.00. The estimated expenditure for the same period is $35,459,523.00. Based on these estimates, JAC will run out of money for due process providers by late February to mid-March 2019.
As of today, JAC is taking in excess of 4 weeks to process due process provider payments. At that rate, those due process provider bills filed beginning in late January 2019 will not be paid until the new fiscal year (which begins on July 1, 2019). Thus, there will be an approximate 5-month window where due process providers will not be receiving any payment for their services.
“An invoice submitted to an agency of the state or the judicial branch, required by law to be filed with the Chief Financial Officer, shall be recorded in the financial systems of the state, approved for payment by the agency or the judicial branch, and filed with the Chief Financial Officer not later than 20 days after receipt of the invoice and receipt, inspection, and approval of the goods or services, except that in the case of a bona fide dispute the invoice recorded in the financial systems of the state shall contain a statement of the dispute and authorize payment only in the amount not disputed.” Fla. Stat. § 215.422(1). This 20-day requirement may be waived by the Department of Financial Services (DFS) “on a showing of exceptional circumstances in accordance with rules and regulations of the department.” Ibid. The DFS must approve payment of the invoice within 10 days after the agency’s filing, but this requirement may also be waived by the DFS “on a showing of exceptional circumstances in accordance with rules and regulations of the department.” Fla. Stat. § 215.422(2). The failure to issue a warrant of payment for undisputed amounts “within 40 days after receipt of the invoice and receipt, inspection, and approval of the goods and services” results in the State of Florida incurring an interest penalty. Fla. Stat. § 215.422(3)(b).
“Prompt payment is the terminology used to describe the statutory requirement to pay obligations of the state within a period of 40 calendar days from the date the obligation is eligible to be paid.” Justice Administrative Commission, JAC Disbursements Accounting “Hot Topics,” May 16, 2017. Starting in February 2019, the State of Florida will not live up to its obligation to provide prompt payment to due process providers in Criminal Conflict capital cases. Once the JAC runs out of money, there will be no other legally available sources to make these payments until the new fiscal year.
Constitutional Rights of Defendants Must Control Over Financial Concerns of the State
Constitutional due process issues and the realities of state budget shortfalls have resulted in issues of payment for experts, mitigation specialists, investigators, and more.
From the Motions (pp 10 – 12)(emphasis added):
The Florida Supreme Court has also issued a number of rulings explaining the primacy of a defendant’s constitutional rights over the state’s financial concerns. “In order to safeguard [a criminal defendant’s] rights, it is our duty to firmly and unhesitatingly resolve any conflicts between the treasury and fundamental constitutional rights in favor of the latter.” Makemson v. Martin County, 491 So.2d 1109, 1113 (Fla. 1986) (holding that absolute fee maximums are “unconstitutional when applied to cases involving extraordinary circumstances and unusual representation.”); see also White v. Board of County Commissioners, 537 So.2d at 1379 (concluding that the statute setting a cap on attorney’s fees in a first-degree murder case “is unconstitutional when applied in such a manner that curtails the court’s inherent power to secure effective, experienced counsel for the representation of indigent defendants in capital cases”); Remeta v. State, 559 So.2d 1132, 1135 (Fla. 1990) (“courts have the authority to exceed statutory fee caps to compensate court-appointed counsel for the representation of indigent, death-sentenced prisoners in executive clemency proceedings when necessary to ensure effective representation”); Maas v. Olive, 992 So.2d 196, 202-203 (Fla. 2008) (“Overall, the Makemson decision strongly suggests that a mandatory fee cap interferes with the right to counsel in that: (1) It creates and economic disincentive for appointed counsel to spend more than a minimum amount of time on the case; and (2) It discourages competent attorneys from agreeing to a court appointment, thereby diminishing the pool of experienced talent available to the trial court.”) (citations and quotations omitted).
Over the last three decades, the Florida Supreme Court has time and again emphasized that a defendant’s constitutional rights in criminal cases trump the State of Florida’s financial shortcomings. Nonetheless, these very shortcomings are on full display in the JAC’s warning that it will run out of money for Criminal Conflict cases by late-February 2019. …
“[S]ince the State of Florida enforces the death penalty, its primary obligation is to ensure that indigents are provided competent, effective counsel in capital cases.” White v. Board of County Commissioners, 537 So.2d at 1379. Yet, he anticipated lack of funding for due process providers will substantially undermine Defendant’s constitutional right to meaningful and effective representation in the instant cases.
In White, the Florida Supreme Court explained that “all capital cases by their very nature can be considered extraordinary and unusual” Id. at 1378. This is certainly true of Defendant’s two cases pending before this Court. There are thousands and thousands of pages of discovery to review, hundreds of witnesses to depose and interview, and countless audio and video clips to view. In addition, defense counsel are being forced to deal with an extraordinary amount of negative pre-trial publicity. In particular, certain law enforcement officials have made numerous comments to the press that may harmfully influence potential jurors.
Counsel can only effectively represent Defendant here with ongoing assistance of due process providers. But this assistance is put at risk by the State of Florida’s failure to adequately provide sufficient funding for these providers. “[C]ompensation of counsel and the effectiveness of counsel are inextricably intertwined.” Florida Dept. of Financial Services v. Freeman, 921 So.2d 598, 600 (2006). “The relationship between an attorney’s compensation and the quality of his or her representation cannot be ignored. It may be difficult for an attorney to disregard that he or she may not be reasonably compensated for the legal services provided due to the statutory fee limit. As a result, there is a risk that the attorney may spend fewer hours than required representing the defendant or may prematurely accept a negotiated plea that is not in the best interests of the defendant. A spectre is then raised that the defendant received less than the adequate, effective representation to which he or she is entitled, the very injustice appointed counsel was intended to remedy.” White v. Board of County Commissioners, 537 So.2d at 1380.
The exact same thing can be said regarding compensation for due process providers. Without adequate and reasonably assured compensation for investigators, forensic and mental health experts, and mitigation specialists, there’s no way to ensure that these persons will continue to effectively provide their necessary services to defense counsel. Without a guarantee of ongoing assistance of due process providers, capital counsel cannot guarantee their ability to provide adequate representation to Defendant in the instant cases. This creates an untenable situation that significantly risks undermining Defendant’s Sixth Amendment right to counsel. This can only be remedied by continuing the trial in these cases until such a time as JAC will have sufficient funds for all due process providers in these cases. “A reliable system of justice depends on adequate funding at all levels. Obviously, this means adequate funding for competent counsel during trial … including access to thorough investigators and expert witnesses.” Allen v. Butterworth, 756 So.2d 52, 67 (Fla. 2000).
For your consideration, copies of these filings have been placed in the Terence Lenamon Online Library:
Filings in Florida v. Loyd
- Motion to Strike the Trial Date and Continue It Until a Time When the Justice Administrative Commission (JAC) Has Funding to Pay All Due Process Providers Including Experts, Investigators, Court Reporters, and Mitigation Specialists filed in the Circuit Court of the Ninth Judicial Circuit In and for Orange County, Florida, in Case Numbers 2016 CF 15738 A and 2017 CF 826, State of Florida vs. Markeith Loyd, defense attorneys Terence Lenamon and Teodoro Marrero, Jr.
Filings in Florida v. Hildwin (hearing set for December 11, 2018)
- Defendant’s Motion to Strike the Trial Date and Continue It Until a Time When the Justice Administrative Commission (JAC) Has Funding to Pay All Due Process Providers Including Experts, Investigators, Court Reporters, and Mitigation Specialists filed in the Circuit Court of the Ninth Judicial Circuit In and for Orange County, Florida, in Case Number 1985-CF-499, defense attorney Terence Lenamon
- Discovery Notice in Criminal Division Case No. 1985-CF-000499-A, State of Florida vs. Paul Hildwin, filed by defense attorney Terence Lenamon
- State’s Response to Defendant’s Motion to Strike the Trial Date and Continue It Until a Time When the Justice Administrative Commission (JAC) Has Funding to Pay All Due Process Providers Including Experts, Investigators, Court Reporters, and Mitigation Specialists filed in the Circuit Court of the Ninth Judicial Circuit In and for Orange County, Florida, in Case Number 1985-CF-499, defense attorney Terence Lenamon