Fifth Amendment of US Const

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

So far, we have three posts (03/27/09; 04/16/09; 04/20/09) that deal with the role of a judge – at both the trial and appellate levels – in a death penalty case. There’s a lot more to consider about the impact that judges have in death penalty considerations, but before we delve further into their role, it seems wise to bring the attorneys into the mix.

First, the criminal defense attorneys. (Next, the prosecutors.)

Before a lawyer can represent a client who is facing capital punishment in a Florida case, he must meet many, many requirements. Why? The Florida legislature as well as the Florida courts have recognized that when a defendant’s life is at stake, his legal counsel plays a vital role in making sure that due process of law is achieved.

Once again, it’s about your right to due process of law

Every aspect of due process must be vigilantly protected when the State is seeking to kill a defendant as punishment for actions that defendant has allegedly done. The ability of the government to take a citizen’s life must be scrupulously monitored and restrained – this is one of the key purposes of our due process standards.

Remember, as Justice Rehnquist alluded to in the Brady Opinion (04/20/09 post), the focus is on the state, not the individual defendant. Anything but the strictest of due process standards in death penalty cases risks the horrors of a fatal error.

Today, even with our due process standards in place, there are many innocent people who have been sent to Death Row, as the Innocence Project can readily confirm. Some innocent people have been executed in this country. Due process is not perfect – after all, it’s a manmade construct — but it’s the standard that we have set in our judicial system. It’s the best we can do, and our jurisprudence is always attempting to hone and better our due process standards.

Death Penalty Criminal Defense Attorneys in Florida

Perhaps the most important role from a due process perspective in a death penalty case is that of defense counsel. The trial judge, of course, vigilantly monitors each step of the legal process, but it is the defendant’s own attorneys that must make the objections to possible violations, and fill the record for appeal with the proper procedural foundations when errors are made.

A trial judge cannot rule on an objection that is not made. An appellate judge cannot rule a point of error left unaddressed.

Different states have different requirements for their death penalty defense attorneys, as does federal law for federal capital punishment cases. In Florida, a specific checklist provides the legal requirements that a criminal defense attorney must have before he sets as lead trial counsel, trial co-counsel, or appellate counsel for a defendant facing the penalty of death.
Continue Reading The Checklist for Death Penalty Qualified Criminal Defense Attorneys in Florida

Due process under the law has been constitutionally protected since our nation began, although the phrase gets tossed around quite a bit these days without much concern as to its real importance.

Due process is protected by the 5th (federal) and 14th (state) Amendments to the U.S. Constitution, although it is a principle with origins in the Magna Carta. In that historic document, England’s King John promised that “…[n]o free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.”

King John signed the Magna Carta over 790 years ago. You’d think that due process of law would be pretty much settled into a traditional, solid role in our society by now. Particularly so, when it comes to those officials in positions of authority. But if you think that, you’d be wrong.

Due Process of Law is endangered in this country.

Never has our sacred right to due process under the law been more endangered than it is today. And no – I’m not about to delve into the current Florida case concerning a young woman awaiting trial for the murder of her child.

Instead, I’m looking over at our sister state, Texas, and what’s been going on over there since the afternoon of September 26, 2007.

Texas Chief Justice Faces Criminal Charges, Civil Trial, and Impeachment Arising From Death Penalty Case

Criminal charges were recently filed against Sharon Keller, the Chief Justice of the Texas Court of Criminal Appeals, by Texans for Public Justice for her actions on the day that Michael Richard was executed by lethal injection. (In Texas, the Court of Criminal Appeals is the highest court for all criminal matters; the state divides its civil and criminal caseloads, and has a separate high court, the Texas Supreme Court, which hears all civil matters as the state court of last resort.)
Continue Reading Texas Chief Justice Sharon Keller’s Lesson to Us All About Due Process