What is a Petition for Writ of Prohibition? Death Penalty Defense and Petitions for Writs

In Florida, several requests can be filed with the appellate court while a death penalty trial is ongoing.  Parties can seek appellate review and issuance of appellate exercises of power that include writs of mandamus, prohibition, quo warranto, certiorari, and habeas corpus, and all writs necessary to the complete exercise of the courts’ jurisdiction as well as for review of nonfinal administrative action.  See, Article V, section 4(b)(3) of the Florida Constitution; Florida Rules of Appellate Procedure 9.100 (Original Proceedings).

Lenamon Files Petition for Writ of Prohibition During Loyd Trial

Terence Lenamon recently filed a petition with a Florida appeals court in the Markeith Loyd death penalty case.  The filing is requesting a writ of prohibition restraining the Honorable Frederick Lauten, Chief Judge of the Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida, from presiding as the judge in this matter.

Petition, page 6.

It is being sought following “the denial of a timely filed motion for disqualification where Mr. Loyd established that he is fearful that he will not receive a fair trial, or that he will suffer prejudice or bias from the court. This petition is premised on the Florida Rules of Judicial Administration, Florida Statutes, and the Florida Code of Judicial Conduct, all of which require that a judge disqualify himself once the defendant has established a reasonable fear that he will not obtain a fair hearing.”

Petition, page 6.

What is a Writ of Prohibition?

Writs are a integral component of our justice system; historically, they originated in the courts of Great Britain (for a history of the use of writs in England, India, etc. go here).

In sum, a writ is an official action taken by a higher court (like the Florida appellate court), ordering a lower court to do something – or to stop doing something.

In Mr. Lenamon’s request, he is seeking the appellate court’s review of the disqualification motion filed in the Markeith Loyd matter, where the defense requested the trial judge recuse himself, which was denied.

What are the details here?  Why ask that the judge not preside over the case?  There are several arguments, which are detailed along with their factual support in the Petition itself.

Full Text of Petition for Writ of Prohibition in Florida’s Markeith Loyd Death Penalty Case

To review a true and correct copy of the Petition for Writ of Prohibition filed by Terry Lenamon in the Markeith Loyd matter, click on the image below.  The court filing has been uploaded into the Terry Lenamon Online Library:

Note: On January 22, 2019, the Petition for Writ of Prohibition was denied by the District Court of Appeal of the State of Florida Fifth District.

How JAC impacts the Florida Death Penalty: Indigent Defense Legal Fees

For over 40 years, Florida’s Justice Administrative Commission (“JAC”) has provided administrative support to the state judicial branch.  Among its managerial tasks is overseeing the payment of court-appointed lawyers who represent defendants unable to afford counsel (indigent defendants).  In 2004, JAC was first given the job of reviewing and approving invoices of private attorneys who had been appointed by the courts to represent indigent defendants.

In 2013, JAC begin its registry for attorneys appointed by the courts in Capital Collateral cases as well as undertaking the task of both contracting with and paying private court-appointed lawyers in their representations in the capital collateral cases.  Florida Capital Collateral cases involve death penalty appeals.

JAC is made up of two State Attorneys and two Public Defenders.  These are appointees; the prosecutors are appointed by the President of the Florida Prosecuting Attorneys Association, and the defense attorneys are appointed by the President of the Florida Public Defender Association.

Death Penalty Defense Attorney Terry Lenamon hard at work in an airport hallway while waiting for his red-eye flight.

Terry Lenamon’s Case against Justice Administrative Commission

In 2009, Terry Lenamon sued JAC over interim compensation and costs in a death penalty defense case out of Lee County.  While his arguments were persuasive at the trial level, and recognized as both fair and reasonable by the appellate court, he was limited to the stated legal rate for death penalty defense in the State of Florida ($100/hour at the time).  Just. Admin. Comm’n v. Lenamon, 19 So.3d 1158 (Fla. 2d DCA 2009)( quoting Florida Statutes § 27.5304(12)(d)(2007)).

Notes the appellate court:

“Mr. Lenamon also argues that the $125 per hour rate was fair and reasonable in light of the exceptional circumstances present in this case. We do not doubt that the $125 per hour rate approved in the circuit court’s order is fair and reasonable. However, the question before us is whether payment at a rate exceeding $100 per hour is authorized by law, not whether it is fair and reasonable.”

JAC v Lenamon, 19 So.3 at 1165, footnote 9.

This case has served as precedent in future matters dealing with indigent defense representation and the need for prompt and proper payment of indigent defense fees and costs.

Point to Ponder: how indigent defense lawyers in Florida capital cases must meet the need for zealous representation of defendants fighting against the death penalty while coping with the financial realities of small hourly rates and staggered payments.

For more, read:

 

This month, the trial of Markeith Loyd continues in an Orlando courtroom with Terry Lenamon at the defense table. While prior Florida state attorney Ayala declined to proceed with the death penalty, it is back on the table.

For more on the Markeith Loyd case, see:

The Death Penalty Information Center has released its annual Year End analysis of the state of capital punishment in this country.  Go here to read the entire report, “The Death Penalty in 2018: Year End Report.”

 

Jurisdictions that imposed the death penalty during the year 2018. Graphic: DPIC

 

2018: Death Penalty in Florida

Of course, the State of Florida is included in this yearly recap on both death sentences and executions, as well as exonerations for those living on Florida’s Death Row.  What were the major events insofar as capital punishment in Florida during the past twelve months?

  1.  Seven Death Sentences

Last year, Florida tied with Texas as having the most death sentences imposed during 2018.  Both states saw seven (7) individuals sentenced to death.  Together with California and Ohio, these four states were responsible for over half of all death sentences last year (57%).

From the DPIC 2018 Report, page 4:

Fourteen states and the federal government imposed death sentences in 2018, but 57% of those sentences came from just four states: Texas and Florida (both with seven) and California and Ohio (both with five). Even as the backlog of cases from two years of uncertainty about the constitutionality of Florida’s sentencing procedures increased the number of capital trials in the state, the new law barring judges from imposing the death penalty without a unanimous jury recommendation for death resulted in at least four life sentences that might previously have produced death verdicts.

2.  One Exoneration: Clemente Javier Aguirre

Florida saw one Florida Death Row Inmate freed during the year 2018.  Mr. Clemente Javier Aguire left prison in November, after being sentenced to death 12 years earlier.  Key appellate arguments  here included challenges to DNA evidence as well as credibility of one of the state’s key witness.

From the DPIC 2018 Report, page 7:

Clemente Javier Aguirre was exonerated from Florida’s death row on November 5, after jury selection for his retrial had already begun. He was the 28th death-row prisoner exonerated in Florida. Aguirre was convicted and sentenced to death in 2006 of the murder of two neighbors–an elderly woman and her adult daughter–in 2004. He steadfastly maintained his innocence, saying he had discovered the women after they had been killed. He did not report the murders to authorities, he said, because he was an undocumented immigrant and feared deportation. The prosecution’s chief witness against Aguirre was Samantha Williams, the mentally ill daughter and granddaughter of the victims. During the post-conviction process, Aguirre’s lawyers discovered that Williams had confessed to at least five different people that she had killed her relatives. None of the DNA found on the 84 items from the crime scene that were tested matched Aguirre. Most blood samples matched the two victims, and Samantha Williams’s DNA was found on eight bloodstains collected from four different rooms. As with more than 90% of Florida’s death-row exonerees, Aguirre had been sentenced to death by non-unanimous jury recommendations under Florida’s unconstitutional capital sentencing scheme.

3.  Execution of Eric Branch Despite Non-Unanimous Jury and SCOTUS Ruling in Hurst

The Supreme Court of the United States found the Florida statute that allowed for non-unanimous juries to impose death sentences was unconstitutional.  SCOTUS held that every single jury member must agree upon capital punishment before death is imposed.  However, the Florida Supreme Court later ruled that it would draw a line on the calendar insofar as when Hurst would apply to Florida’s Death Row inmates:  if the case was final before June 2002, when the SCOTUS decision in Ring v. Arizona came down, then Hurst would not be applied and the non-unanimous jury death sentence would stand.

The result?  Eric Branch was executed by the State of Florida in 2018, despite his jury voting 10-2 for the death penalty.

From the DPIC Report, page 12:

Two men, Eric Branch in Florida and Walter Moody in Alabama, were executed after non-unanimous juries recommended death sentences. Branch, who was only 21 at the time of his crime, received a 10-2 jury recommendation for death, an outcome that could not produce a death sentence today. In 2016, in Hurst v. Florida, the U.S. Supreme Court struck down the Florida sentencing scheme under which Branch was tried and condemned. Branch was one of 200 prisoners sentenced under Florida’s unconstitutional statute who still face execution as a result of a Florida Supreme Court ruling that it will enforce Hurst only in cases finalized after June 2002, when the U.S. Supreme Court decided a related case, Ring v. Arizona. In 2018, the U.S. Supreme Court declined to review 84 Florida cases in which defendants had been sentenced to death under the unconstitutional statute. Alabama law still allows non-unanimous jury recommendations for death, as long as at least 10 jurors agree, but Moody’s 11-1 jury recommendation would result in a life sentence in nearly every other death-penalty state.

For more on Hurst, see:

Markeith Loyd Trial: Judge Denies Recusal Request

This week, Orange-Osceola Chief Judge Frederick Lauten denied the defense motion seeking his recusal, filed by Terence Lenamon on December 5, 2018.  See, “Chief judge won’t recuse himself in Markeith Loyd case,” written by Gal Tziperman Lotan and published by the Orlando Sentinel on December 10, 2018.

 

Excerpt from the Motion: Fair Trial or Prejudice

The following excerpt explains some of the defense arguments regarding how it is feared that the defendant in this capital case will not get a fair trial or that he will be prejudiced in some way:

First. the   method   in  which    this  Court    stated   that   it  was  appointed   to  the   case   is contradicted  by the  order of appointment.  The  original  order of appointment  states the Court  was  appointed via  a method of judicial  rotation.  Conversely. the  Court  stated he directed  the  Administrative Judge  to  transfer  the case  to  him.  Both  of these  cannot be accurate. and  based  on  that  incongruity,  Defendant fears  that  he  will  not  receive a  fair trial.  or that  he will  suffer  prejudice or bias  from the  Court.

Second. the  Court  ignored  or downplayed   obvious deficits  in the  Defendant’s mental state  that  could   not  pass  muster in  a proper Faretra  hearing,  and  the  Court consequently failed to initially  appoint  standby counsel. This causes  the  Defendant to be fearful  that  he will not  receive a fair trial, or that  he will  suffer prejudice or bias  from the Court.

Third. the  Court  was  significantly  active   in  investigations  concerning  Defendant  both prior  to  his  appointment  and  during  his  initial  period  as the  assigned judge of the  instant cases.  He  signed in  excess of twelve warrants, some  of which  were apparently concealed from  the  Stale and defense  by the  police officers.  One  of the  warrants requested  that  the Court  not  disclose information  because of the  ongoing  nature   of the  investigation. Court’s   intimate   involvement   in   these   investigations.   combined   with   the   fact   that Defendant   only  very   recently   learned   about   such   involvement   in   any   detail.   causes Defendant to  fear  that  he  will  not  receive  a  fair  trial.  or that he  will  suffer  prejudice  or bias  from  the  Court.

Fourth.  the Court did not comply  with  Florida  Statutes  934.09(8)(e),  which  requires that the  issuing  Judge  “shall  cause  to  be  served  on  the  persons  named  in  the  order or the application.  and   such   other   parties  to  intercepted  communications  as  the  judge  ma. determine in  his or her discretion  to be in the  interest  of justice,  an inventory  which  shall  include  notice  of:

  1. The  fact or the entry of the order  or the application
  2. The  date  of the  entry and  the  period   of authorized,  approved. or disapproved  interception. or the denial  of the  application
  3. The  fact  that during the period wire, oral  or electronic communications were  or were  not  intercepted.”

Although the Defendant  was named  in at least one wiretap order.  he was not served  with the  notice  required  under  934.09(8)(c).  The  Court’s   failure  to  provide  the   requisite notice  tu  Defendant on an important issue causes  Defendant  to  be fearful  that he  will not receive  a fair trial. or that he will suffer prejudice or bias  from the Court.

Finally. the  cumulative   impact  of  the  Court’s  actions   (or  inactions)  discussed  herein causes  Defendant  to  be  fearful  that  he will  not  receive  a fair trial.  or that  he  will  suffer prejudice or bias  from the Court.

Click on the image to read the full text of the Motion, as filed of record, which has been placed into the Terence Lenamon Online Library:

 

Every so often, we recommend a good read – usually a single book or novel that deals with capital punishment in some way.

Today, we’re recommending a series of books by a single author: John Grisham.

John Grisham on the Death Penalty

For his personal take on the death penalty, check out Mr. Grisham’s op-ed piece last year in USA Today: “Stop the execution madness in Arkansas: John Grisham,” or watch his interview by Bill Moyers online here: John Grisham on Wrongful Death Penalty Convictions from BillMoyers.com on Vimeo.

Three John Grisham Books Dealing with the Death Penalty

His books dealing with the death penalty include:

1.  The Chamber

From his website comes the following description of The Chamber:

In the corridors of Chicago’s top law firm:Twenty -six-year-old Adam Hall stands on the brink of a brilliant legal career. Now he is risking it all for a death-row killer and an impossible case.Maximum Security Unit, Mississippi State Prison:Sam Cayhall is a former Klansman and unrepentant racist now facing the death penalty for a fatal bombing in 1967….

2.  The Confession

From his website comes the following description of The Confession:

An innocent man is about to be executed. Only a guilty man can save him. For every innocent man sent to prison, there is a guilty one left on the outside. He doesn’t understand how the police and prosecutors got the wrong man, and he certainly doesn’t care. He just can’t believe his good luck. Time passes and he realizes that the mistake….

 

 

 

3.  The Innocent Man: Murder and Injustice in a Small Town (non-fiction)

From his website comes the following description of The Innocent Man:

In the major league draft of 1971, the first player chosen from the State of Oklahoma was Ron Williamson. When he signed with the Oakland A’s, he said goodbye to his hometown of Ada and left to pursue his dreams of big league glory.

Six years later he was back, his dreams broken by a bad arm and bad habits—drinking, drugs, and women. He began to show signs of mental illness. Unable to keep a job, he moved in with his mother and slept twenty hours a day on her sofa.

In 1982, a 21-year-old cocktail waitress in Ada named Debra Sue Carter was raped and murdered, and for five years the police could not solve the crime. For reasons that were never clear, they suspected Ron Williamson and his friend Dennis Fritz. The two were finally arrested in 1987 and charged with capital murder.

With no physical evidence, the prosecution’s case was built on junk science and the testimony of jailhouse snitches and convicts. Dennis Fritz was found guilty and given a life sentence. Ron Williamson was sent to death row.

If you believe that in America you are innocent until proven guilty, this book will shock you. If you believe in the death penalty, this book will disturb you. If you believe the criminal justice system is fair, this book will infuriate you.

 

 

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

Filings in Florida v. Hildwin (hearing set for December 11, 2018)