The Florida Supreme Court on Tuesday rejected appeals from three Death Row inmates who were convicted of committing murders in the 1980s in Pinellas, Broward and Palm Beach counties.
The appeals by attorneys for inmates James Milton Dailey, Daniel Lee Doyle and Duane Eugene Owen were rooted in a January 2016 U.S. Supreme Court ruling in a case known as Hurst v. Florida and subsequent Florida Supreme Court decisions.
The 2016 U.S. Supreme Court ruling found Florida’s death-penalty sentencing system was unconstitutional because it gave too much authority to judges, instead of juries.
The subsequent Florida Supreme Court ruling said juries must unanimously agree on critical findings before judges can impose death sentences and must unanimously recommend the death penalty.
Attorneys for Dailey, Doyle and Owen argued the new requirements should be applied retroactively to their cases, which could have led to new sentencing hearings. But the Supreme Court rejected the arguments, as it has done in numerous other appeals from longtime Death Row inmates.
Justices have made the new sentencing requirements apply to cases since June 2002, which is when the U.S. Supreme Court issued a ruling known as Ring v. Arizona that was a premise for striking down Florida’s death-penalty sentencing system in 2016.
Dailey, now 72, was convicted in a 1985 murder in Pinellas County; Doyle, now 58, was convicted in a 1981 murder in Broward County; and Owen, now 57, was convicted in a 1984 murder in Palm Beach County, according to court and Department of Corrections records.
Republished with permission of the News Service of Florida.
Florida Supreme Court Chief Justice JorgeLabarga on Tuesday ordered the appointment of a referee in a dispute between The Florida Bar and a Miami-Dade County firm that helps motorists fight traffic tickets.
The dispute stems from allegations that TIKD Services LLC violated a ban on practicing law without a license – allegations that the firm denies.
The Bar in January filed a petition requesting that the Supreme Court issue an injunction against TIKD.
But Labarga on Tuesday designated BertilaSoto, chief judge of the 11th Judicial Circuit, which includes Miami-Dade, to appoint a referee in the case.
The referee ultimately will hold a hearing and submit findings and recommendations to the Supreme Court.
TIKD, which was created in 2016, operates an online service in which motorists can upload pictures of tickets, according to court documents.
TIKD performs a statistical analysis after receiving tickets and determines whether to provide its services to motorists.
If it accepts a ticket, TIKD charges a fee and pays an attorney to represent the motorist. TIKD also pays fines or court costs if tickets are not dismissed, the documents said.
TIKD contends it does not provide legal services, but the Bar has alleged that the firm engages in the practice of law “by offering to provide legal services.”
The state Supreme Court on Monday removed a Northeast Florida circuit judge because of improper conduct during a 2016 election campaign and other actions while on the bench.
In the unanimous decision, the court ordered the removal at 5 p.m. Monday of Judge Scott DuPont, who heard cases in Putnam and Flagler counties in the 7th Judicial Circuit.
The Florida Judicial Qualifications Commission, which investigates wrongdoing by judges, recommended that DuPont be taken off the bench after a hearing panel found numerous violations of judicial canons, including an allegation that DuPont published false allegations online about his 2016 election challenger, Malcolm Anthony, and Anthony’s family members.
The investigation also found that, during a candidate forum in 2016, DuPont said that he would not find a state law unconstitutional “because it’s not my job to legislate from the bench,” a “blatant violation” of judicial canons that ban judges from predetermining how they will decide on certain cases.
The panel also took issue with DuPont for changing the times of first-appearance hearings in criminal cases during Memorial Day weekend in 2016 to accommodate his campaign schedule. DuPont admitted he “made a poor decision” but “simply could not say why he started the hearing early,” according to court records.
The commission was especially concerned about information DuPont posted online about Anthony during DuPont’s re-election campaign two years ago.
DuPont “imputed criminality to his opponent’s wife and daughter on his website,” a report by the commission’s hearing panel said.
“He disseminated false and misleading information that Anthony employed aliases, posed as an imposter, and was ‘booked’ for arrest,” the report said.
DuPont was warned repeatedly “not to publish the woefully deficient ‘opposition research’ gathered, both verbally and in writing, by his campaign manager and judicial colleagues,” according to the report.
DuPont’s campaign website represented that Anthony’s daughter had been arrested 23 times, when in fact she had never been arrested, lawyers representing the Judicial Qualifications Commission wrote on April 11.
“This behavior is beyond reckless,” they wrote.
But, arguing that the judge should not be removed from office, DuPont’s lawyer, Rutledge Liles, wrote that the commission was attempting to “fan the flame of prejudice” to get the judge kicked off the bench.
“In essence, what we are faced with is an effort to pile on Judge DuPont in an attempt to show a pattern of conduct justifying his removal,” Liles wrote in a response filed April 30.
DuPont “admitted his carelessness and has in no fashion attempted to defend what occurred as acceptable conduct” regarding the alleged elections violations, Liles wrote.
The judge maintained he “acted in good faith” with “the honest belief” that the information given to him about his opponent was accurate, according to the court documents.
“In this context, it defies common sense to think that an incumbent judge would intentionally manufacture false allegations against an opponent,” Liles wrote. “Careless or reckless publication amounts to negligence and conduct of a rash or unwise nature. It is distinguishable from an evil motive or intent.”
But the judge’s insistence that he didn’t know the information was faulty at the same time he claimed to accept responsibility for the ethical lapse didn’t jibe with the lawyers representing the Judicial Qualifications Commission.
“Acceptance of responsibility is not to repeatedly testify before the Hearing Panel that you relied on others and yet voice the magic words, ‘I accept responsibility,’” lawyers for the commission wrote, adding that DuPont’s testimony to the commission “was, at times, not worthy of belief.”
Monday’s order removing DuPont from the bench is the latest action from justices who have grown increasingly intolerant of ethical and behavioral lapses by judges.
The Judicial Qualifications Commission’s recommendation of removal relied in part on former Chief Judge Terence Perkins, who accused DuPont of heavy-handedness when dealing with defendants and told the commission he received more complaints about DuPont than any other judge.
Perkins said he never assigned DuPont to a felony division because he “was fearful he would constantly have to react to Judge DuPont ‘putting people in jail all the time,’” lawyers for the commission wrote in April.
But Liles took issue with the commission’s reliance on Perkins’ negative remarks about the judge, pointing out that Perkins also authored a letter praising DuPont’s character.
And Liles dismissed DuPont’s alleged “heavy-handedness” by reminding the court that Putnam County is one of the poorest in Florida. Along with Putnam and Flagler, the circuit also includes St. Johns and Volusia counties.
Putnam County “had a lot of trouble with ‘crime, domestic violence, violence and truancy, and things of that nature,” according to another 7th Circuit judge, according to Liles’ April 30 response.
DuPont should be applauded for “his efforts to clean up Putnam County and restore some semblance of order,” his lawyer advised the court.
The county “has the highest child rape statistic per capita” in Florida, has “the highest teen pregnancy rate” and has the highest divorce rate, according to DuPont’s testimony.
“Against this backdrop, should ‘putting people in jail all the time’ and being ‘heavy-handed’ in dealing with the domestic violence and crime be given even a moment’s notice as, is it unreasonable for a judge, who is presiding over a particular case, hearing the seriousness of the charges first hand, to exercise discretion and judgment?” Liles wrote.
Monday’s order removing DuPont from the bench will be followed by a full order later.
Republished with permission of the News Service of Florida.
The Florida Supreme Court ordered resentencing Thursday for a Death Row inmate convicted of a 2005 murder in Broward County and said a separate hearing should be held to delve into anti-gay statements made by a juror.
Justices ordered a new sentencing hearing for inmate Eric Kurt Patrick because the jury split 7-5 in recommending the death penalty to a judge. On that issue, Thursday’s ruling was similar to numerous other cases in which justices have ordered resentencing based on a 2016 U.S. Supreme Court decision that found Florida’s death-penalty sentencing system unconstitutional.
But justices also agreed that Patrick should receive an evidentiary hearing related to anti-gay statements made during jury selection by a man who ended up serving on the jury. Patrick’s current lawyers argued in a Supreme Court brief that his trial attorney did not properly seek to block the man from serving on the jury and that a new trial should result.
The Supreme Court opinion said the juror acknowledged he would have a bias if he knew a criminal defendant was gay.
“When asked if he would still hold the prosecutor to the proper burden of proof, he answered, ‘Put it this way, if I felt the person was a homosexual, I personally believe that person is morally depraved enough that he might lie, might steal, might kill,’” the Supreme Court opinion said. “The juror said ‘yes’ when asked if this bias might affect his deliberations.”
Patrick, now 55, was convicted in the September 2005 murder of Steven Schumacher after the men met at a park and went to Schumacher’s home. Patrick, who was homeless at the time, gave Schumacher a massage and the men were naked in bed when Patrick began beating the victim, according to a summary of the case included in the Supreme Court opinion. Patrick said Schumacher wanted to have anal sex but that Patrick refused – a situation that ultimately led to the fatal beating.
The Supreme Court opinion said Patrick denied being gay but that he had engaged in sexual activity with other men. Regardless, the Supreme Court pointed to potential bias in the statements made during the jury-selection process known as voir dire.
“Applying this evidence to the juror’s voir dire answers establishes that, by the juror’s own acknowledgment on the record, he was predisposed to believe that Patrick is morally depraved enough to have committed the charged offenses,” the opinion said. “Although Patrick does not identify as homosexual and indicated in his confession that his sexual activity with men was for material support rather than personal fulfillment, these points do not eliminate the bias that this juror said he would feel based on the evidence that trial counsel and the trial court knew the jury would hear during trial.”
The opinion said prosecutors contended that Patrick’s trial attorney did not block the juror for strategic reasons. But the Supreme Court said it can “neither ignore the possibility that counsel’s failure to challenge this juror was strategic nor conclude that it was.” As a result, justices unanimously ordered a lower court to hold an evidentiary hearing.
The Supreme Court also ruled 5-2, with justices Charles Canady and Ricky Polston dissenting, that Patrick should receive a new sentencing hearing as an outgrowth of the 2016 U.S. Supreme Court decision.
That U.S. Supreme Court decision found Florida’s death-penalty sentencing system unconstitutional because it gave too much authority to judges, instead of juries. A subsequent Florida Supreme Court ruling said juries must unanimously agree on critical findings before judges can impose death sentences and must unanimously recommend the death penalty.
The Florida court Thursday applied that to Patrick’s case, pointing to the jury’s 7-5 jury recommendation for the death penalty. After the court rulings, state lawmakers changed the death-penalty sentencing system to address the unanimity issue.
Republished with permission of the News Service of Florida.
In an act of ‘humble plagiarism,’ Joe Redner‘s attorney is following the lead of John Morgan in asking the state Supreme Court to take over litigation on medical marijuana.
In a filing posted Monday, attorney LukeLirot “suggests” that the state’s highest court take over deciding whether Redner — the Tampa strip club mogul — can grow and juice his own marijuana for medicinal purposes.
JonMills, the attorney who won a lower-court decision that medicinal cannabis can be smoked in Florida, has filed a similar pleading. The same judge presided over both cases: Tallahassee Circuit Judge Karen Gievers. Both decisions were quickly appealed by the state and are now at the 1st District Court of Appeal.
“For the same reasons articulated in a virtually identical submittal … from which this submittal is humbly plagiarized in good faith, the important issue decided by the trial court requires immediate resolution,” Lirot wrote.
“Supreme Court review is highly probable because the issue inevitably involves the interpretation of a new section of the Constitution and the unconstitutionality of a statute,” he added. “Delay from two rounds of review only increases the injury for those who must wait to access a constitutionally protected medical treatment and postpones final determination by the Court.”
Both lawsuits involve the state constitutional amendment on medical marijuana, passed by 71 percent of voters in 2016. The amendment was spearheaded by Morgan, an Orlando attorney, entrepreneur and medical marijuana advocate. He also organized the smoking lawsuit.
Gievers first ruled that the amendment gave Redner, a lung cancer survivor, the right to grow his own marijuana and make juice of it to prevent his cancer from recurring.
She later decided the amendment also included a right to smoke marijuana when a physician decides that’s the best use of the drug for a patient.
“There is a need for an immediate resolution of this dispute,” Lirot wrote. “The patients who qualify for medical marijuana … are those with debilitating medical conditions, including cancer, HIV, ALS, Parkinson’s disease, and multiple sclerosis.
“For many Floridians, including Mr. Redner, their health care issues are urgent.”
The Florida Supreme Court has rejected proposed penalties for a Miami-Dade County judge who faces discipline after an investigation into free hotel stays in Miami Beach, the Dominican Republic and Mexico.
The Supreme Court, which in recent years has taken an increasingly tough stance on judicial misconduct, sent the case of Judge MariaOrtiz back to the state Judicial Qualifications Commission, which oversees investigations.
The Supreme Court on Friday unanimously ordered the commission to hold a full hearing and to “fully develop the facts regarding any misconduct that occurred, so that the (Supreme) Court, in determining the appropriate discipline, will be apprised of all the facts and circumstances bearing on the alleged violations.”
The commission recommended last month that Ortiz pay a $5,000 fine and receive a public reprimand from the Supreme Court for failing to properly disclose the 2015 and 2016 hotel stays.
That recommendation, which the Supreme Court rejected in its Friday order, came after Ortiz admitted she had not properly reported the information on financial-disclosure forms. It also came after Ortiz’s husband, MarianoFernandez, who served as director of the Building Department for the city of Miami Beach, was charged with felony counts of receiving unlawful compensation, according to the documents filed at the Supreme Court. Fernandez was accused of helping RIU Hotel Group in Miami Beach with permitting problems and receiving free accommodations.
Florida Supreme Court justices on Thursday parsed the question of how being Facebook friends with an attorney involved in a lawsuit differs from actual human interactions between judges and members of the Bar.
The justices suggested the wisest course is steer clear of the social media site — as they do themselves.
“It’s fraught with danger,” Justice Barbara Pariente said.
“We’re not saying judges shouldn’t be on Facebook,” attorney Maury Udell said. “Just don’t be Facebook friends with lawyers who appear in front of you. It goes back to the word I came up with at the beginning — optics. It just doesn’t look right.”
The Miami attorney represents the Herssein Law Group, which wants to disqualify Circuit Judge Beatrice Butchko from a dispute over attorney fees, on the ground that she was Facebook friends with Israel Reyes, an attorney representing the U.S. Automobile Association, the company on the other side of the case.
The 3rd District Court of Appeal refused, concluding that “a ‘friend’ on a social networking website is not necessarily a friend in the traditional sense of the word.”
Ethics rules don’t forbid judges from having personal relationships with attorneys as long as there’s no appearance of undue influence, Suzanne Labrit, representing the association, argued.
“There isn’t really, I would submit respectfully, any difference” between that and Facebook friendships,” she said.
Many of the justices’ questions — Justice Ricky Polston did not participate — centered on the difficulty of maintaining the appearance of impartiality in the often closely knit legal community. Judges and litigants know each other well enough to sit down to lunch occasionally — especially in small towns.
The court’s not about to tell judges never to dine with lawyers, but obviously they shouldn’t with an active litigating attorney, or one who frequently appears in the judge’s court, Pariente said.
“There’s something different about what may happen before a case, and then what happens during a case,” she said.
“I think in this case you’re on solid ground,” Pariente told Labrit. But she still suggested the wiser course is to not have “lawyers as friends.”
The Judicial Ethics Advisory Committee ruled in 2009 that a social media connection “conveys the impression that the lawyer is in a position to influence the judge” and was therefore “is not permitted,” Pariente said.
And in 2012, the 4th District Court of Appeal ruled — before the 3rd District acted — that such friendships could be ground for recusal, she said.
Pariente opted against opening a Facebook page for that very reason, she said. Other justices also said they avoided the platform.
The Judicial Ethics Advisory Committee didn’t go so far as to suggest judges purge lawyer Facebook friends, Labrit said. And those relationships range from intimate to distant strangers.
“LeBron James and I are friends on Facebook. He probably couldn’t pick me out in a lineup,” she said.
She pointed to 11th U.S. Circuit Court of Appeals Judge Rosemary Barkett’s warning that failure to observe the distinction would be “infinite motions to disqualify based on the fact that a lawyer may be friends” with a judge.
“You run the risk of having multiple motions for disqualification for any number of people,” Justice Peggy Quince said.
“Facebook friends frequently are friends of a friend of a friend of a friend of a friend,” Justice Charles Canady said.
“The idea that somehow participating in that network arrangement somehow establishes the kind of relationship with anybody who happens to come into it that would result in disqualification just is not consistent with what our case law has said about traditional friendship,” he said.
The difference, Udell said, is that one needs to affirmatively ask to friend someone on Facebook. And, unless a judge accepts their requests, they can never know nature of his or her other Facebook relationships absent an extensive discovery process.
“To avoid the appearance of impropriety, you cannot make that connection to the exclusion of the other side,” he said.
The call would be easy if a judge included an attorney among a very small number of Facebook friends, Canady suggested. “But we don’t have any suggestion in this case that there’s a circumstance like that.”
Justice Fred Lewis warned against the appearance of impropriety.
“If all judges were saints, then we wouldn’t be having all the cases we have coming over from the (Judicial Qualifications Commission). And they’re coming over on a weekly basis, my friend,” he said.
One justice described the relationship between JuanitaThurston and GwendolynOdom as a “textbook example” of love between a mother and a daughter.
But the Florida Supreme Court on Wednesday grappled with whether Odom, an adult, should be able to receive millions of dollars in damages from R.J. Reynolds Tobacco Co. because of the smoking-related death of her mother.
Justices questioned attorneys for Odom and R.J. Reynolds about issues related to damage awards for adult children in wrongful-death cases — as opposed to damages that can be awarded to surviving spouses or minor children. The 4th District Court of Appeal in 2016 overturned a multimillion-dollar award for Odom, prompting her attorneys to go to the Supreme Court.
DavidSales, an attorney for Odom, described a close relationship in which Odom cared for her mother and watched Thurston “waste away” because of cancer. His arguments appeared to have support from Justice BarbaraPariente.
“This couldn’t have been a closer bond,” Pariente said. “This could not be a more textbook example of the love that a mother and daughter have for one another.”
But JeffreyBucholtz, an attorney for R.J. Reynolds, said a jury award to Odom was “an order of magnitude higher” than damages approved in similar cases in the past.
“This is not an award that is a little bit higher than awards in similar cases,” Bucholtz said.
A Palm Beach County jury found R.J. Reynolds at fault in Thurston’s death and awarded $6 million in compensatory damages. That amount was reduced to $4.5 million, because Thurston was held to be 25 percent responsible for her illness. The jury also awarded $14 million in punitive damages.
But the 4th District Court of Appeal said the compensatory-damage award was excessive for a case brought by an adult child of dead smoker. It rejected the compensatory-damage award and, as an extension, the amount of punitive damages.
“Although the evidence established that plaintiff and her mother had a very close and unique relationship, at the time of Ms. Thurston’s illness and death, plaintiff was not living with Ms. Thurston and was not financially or otherwise dependent on her,” the appeals court ruled in November 2016. “Instead, plaintiff was married with two children of her own and Ms. Thurston was living with her long-time partner. Although plaintiff took her mother to many of her appointments and was devastated by her decline and subsequent death, the relationship between an adult child living independent of their parent is simply not the type of relationship which can justify the magnitude of the plaintiff’s compensatory damage award.”
The Supreme Court, which likely will take months to issue a ruling, was divided about even taking up the case. Pariente, Chief Justice JorgeLabarga and justices R. Fred Lewis and Peggy Quince supported hearing the case, while justices CharlesCanady, Ricky Polston and Alan Lawson disagreed, according to a December decision.
The Odom case is one of thousands in Florida known as “Engle progeny” cases. Such cases are linked to a 2006 Florida Supreme Court ruling that established critical findings about the health dangers of smoking and misrepresentation by cigarette makers.
The Florida Supreme Court is poised next week to take up a case that poses a question for the age of social media: What does it mean to be a Facebook friend?
Justices will hear arguments about whether a Miami-Dade County circuit judge should be disqualified from a case because she is a Facebook friend with a lawyer for one of the parties. The outcome could have reverberations in courthouses across the state, as justices weigh whether a Facebook friendship poses the potential for bias.
The underlying case stems from a dispute between the Herssein Law Group and a former client, United States Automobile Association, about attorney fees and alleged fraud and breach of contract. The law firm sought the disqualification of Circuit Judge Beatrice Butchko because she was a Facebook friend with attorney Israel Reyes, who was hired to represent a company official in the case.
Butchko refused to step aside, leading the Herssein Law Group to take the issue to the 3rd District Court of Appeal. That court rejectedthe request to disqualify the circuit judge, concluding that “a `friend’ on a social networking website is not necessarily a friend in the traditional sense of the word.”
“To be sure, some of a member’s Facebook `friends’ are undoubtedly friends in the classic sense of person for whom the member feels particular affection and loyalty,” the appeals-court decision said. “The point is, however, many are not. A random name drawn from a list of Facebook `friends’ probably belongs to casual friend; an acquaintance; an old classmate; a person with whom the member shares a common hobby; a `friend of a friend;’ or even a local celebrity like a coach. An assumption that all Facebook `friends’ rise to the level of a close relationship that warrants disqualification simply does not reflect the current nature of this type of electronic social networking.”
But the Herssein Law Group, in a brief filed with the Supreme Court, said a judge who is a Facebook friend with a lawyer appearing before the judge violates part of a judicial code of conduct, “by presenting the appearance of impropriety, particularly where opposing counsel is not similarly sharing the same ‘special position’ or status of being a Facebook ‘friend’ of the trial judge.”
“Facebook friends have the ability to electronically share virtually anything from the intensely personal to the comically benign,” said the law firm’s brief, filed in January. “Facebook allows ‘friends’ to communicate, view, access, and comment on specific personal information that ‘non-Facebook-friends’ cannot view or see. Because petitioners’ (the Herssein Law Firm) and their lawyers do not enjoy the same ‘special position,’ Reyes has, of being a Facebook ‘friend’ of the trial judge, they are not able to freely access, view, comment, and share the same materials as Reyes. Thus, they do not enjoy a commensurate level of intimacy with the trial judge as Reyes does. It is this inclusion of Reyes and exclusion of petitioners in Judge Butchko’s inner circle and nonpublic forum that gives rise to the appearance of impropriety.”
But in response, lawyers for United States Automobile Association filed a brief that echoed the appeals court’s view of what a Facebook friendship means — or doesn’t mean.
“The Third District properly held that Facebook friendship, without more, does not convey the impression that the Facebook friend is in a special position to influence the judge,” the brief said. “As the Third District explained, “a Facebook friendship does not necessarily signify the existence of a close relationship,” … and it is therefore unreasonable for a litigant to believe he cannot obtain a fair trial before a judge who is Facebook ‘friends’ with counsel. The court’s observation that ‘a ‘friend’ on a social networking website is not necessarily a friend in the traditional sense of the word’ hits the nail on the head and demonstrates why petitioners’ purported fear of not receiving a fair trial is unreasonable.”
The Supreme Court decided in December to take up the case and is scheduled to hear arguments June 7.
Friday’s 1-paragraph order says Redner had “failed to demonstrate” that getting involved now was “necessary to protect this court’s eventual jurisdiction or to prevent irreparable harm.”
Circuit Judge KarenGievers had tried to make her order last month immediately applicable.
It confirms that Redner — a 77-year-old lung cancer survivor — has the right to ‘home grow’ under 2016’s constitutional amendment on medical marijuana. His doctor says juiced marijuana is the best way to keep his cancer in remission.
Luke Lirot, Redner’s attorney, has said the state erroneously argues that the amendment doesn’t mean what it says: That qualified marijuana patients can grow their own.
The state’s legal definition of “cannabis” says it’s “all parts of any plant of the genus Cannabis, whether growing or not (and) the seeds thereof,” which Lirot says bolsters Redner’s case.
Redner, owner of the Mons Venus nightclub, is a vegan. Gievers’ order limits him to no more than eight ounces or raw marijuana daily, based on his doctors’ recommendations. It applies only to Redner and allows him to “possess, grow and use marijuana” only for juicing.
Health spokesman Devin Galetta has said the agency “fully expects Judge Gievers’ ruling to be reversed on appeal.”