Sunday, November 29, 2015

MERRY CHRISTMAS; メリークリスマス (Japanese); ප්රීතිමත් නත්තලක් (Sinhali); کریسمس مبارک (Persian)

I just got an invitation to a "holiday party." What's that? It's what people throw when they're afraid they're going to offend someone by saying "Christmas party." That bothered me. I won't say it "offended" me, because I don't want to be identified as one of those people who have a hair trigger for getting offended. I did find the situation paradoxical, however. In a country which is 71% Christian, you can't celebrate Christmas for fear of offending people (non-Christians, I suppose), but in Japan, which is 90% Shinto and only 1% Christian, they celebrate Christmas. Christians find the way they celebrate it to be a little weird, but they celebrate it nonetheless. They eat KFC for Christmas and have Christmas trees shaped like Godzilla! I once got a Christmas card from a Japanese friend--it had a Samurai warrior on it, but it did say "Merry Christmas." In Sri Lanka, which is 70% Buddhist and only 7 % Christian, they celebrate Christmas. And in Iran (yes, Iran) they celebrate Christmas, with Christmas trees, no less!

So in the Alice-in-Wonderland world of twenty first century America, you can't celebrate Christmas for fear of offending non-Christians, but in non-Christian countries, it's perfectly alright to celebrate Christmas.


The prosecution has just proven the defendant guilty beyond and to the exclusion of all reasonable doubt, and the judge says "Very good Mr/Ms Prosecutor, you now have the privilege of trying to prove the defendant guilty beyond every reasonable doubt a second time." Where in the world has this ever happened? I am not aware of any place on planet Earth, or in the known Universe for that matter, which requires the prosecution to prove the defendant guilty beyond a reasonable doubt TWICE. There is a bill pending in the Florida Senate which seeks to require the prosecution to prove a defendant guilty beyond a reasonable doubt at a pretrial stand your ground hearing; and then if they win, do it all over again at a jury trial. I was a prosecutor for three decades, and let me tell you, it's hard enough to prove the defendant guilty beyond a reasonable doubt once, much less twice. I have written at length on the silliness of such a requirement when I praised the House for defeating HB 169, which sought to place such a requirement on prosecutors. You can read my critique HERE.

Silly me. I thought the defeat of HB 169 settled the matter. Then I found out that the NRA's Institute for Legislative Action (ILA) had backed two bills in the Florida Legislature which would place this requirement on the prosecution. Although the House bill has been defeated, but the Senate Bill, SB 344, has been voted out of committee and is alive and well. If it passes, Florida should become the laughingstock of the bench and bar throughout the United States, if not the bench and bar of every common law jurisdiction in the world.



Friday, November 20, 2015


ABRAHAM LINCOLN'S ALMANAC TRIAL: LINCOLN'S LAST MURDER CASE: At the end of his 25 year career as a trial lawyer, Lincoln tried one more murder case, defending the grandson of his old political foe, Rev...

Wednesday, November 18, 2015


In my last blog, I talked about how incredibly ill-advised the proposed open-carry law (CS/HB 163) was, and went on to say that it wasn’t the worst NRA-backed bill pending before the legislature. I promised to talk about that bill in a later blog. Thankfully, before I got a chance to point out everything that was wrong with it, the bill was defeated. I think the main reason the bill was defeated (at least the main reason it should have been defeated) was that it was basically a prosecutor-intimidation bill. It was designed to make the prosecutor's job twice as hard as it already is, and it also threatened the prosecutor with a financial penalty of potentially $200,000 for every case of violent crime lost by the prosecution. Net result? Many prosecutors in many cases will throw up their hands and say "Although this defendant should be prosecuted, it's too hard to get a conviction and too risky to try. I'll just have to let the defendant go this time and hope that the next time he shoots/stabs/kills someone, I'll have an open-and-shut case."

The NRA says they’ll be back next legislative session to try again, so I’m going to go ahead and analyze the defeated bill in hopes that I can contribute to its defeat in the next legislative session.

The description of the bill reads: “Provides legislative findings & intent; provides for retroactive application; specifies that once prima facie claim of self-defense immunity has been raised, burden of proof shall be on party seeking to overcome immunity from criminal prosecution; entitles criminal defendants who successfully claim such immunity to award of specified costs, attorney fees, & related expenses; specifies procedure for reimbursement requests; requires reimbursements to be paid from operating trust fund of state attorney who prosecuted defendant; limits amount of award.[1]

Sounds harmless enough, doesn’t it? It isn’t. Here’s some history. First, the Stand Your Ground (SYG) law conferred immunity on anyone who uses deadly force in lawful self-defense. Under the law as it has existed since 1776, whenever anyone has ever claimed any type of immunity from prosecution or suit, they have had to prove that they were immune. For example: If I were tried for and acquitted of battery on Joe Blow and got arrested and charged with the same crime again, I would have immunity from prosecution. In order to enforce that immunity, I would have to file a motion to dismiss and go to court and prove by a preponderance of the evidence (POE) that I had previously been tried for and acquitted of the same battery.

I actually got a client acquitted once when I was a PD on such a motion. He was charged in misdemeanor court with resisting “Officer Friendly” and in felony court with violently resisting “Officer Friendly.” I tried him in misdemeanor court and the jury acquitted him. I then filed a motion to dismiss the felony case. I produced certified copies of the misdemeanor court charging document and the verdict and proved by a POE that my client was immune on grounds of former jeopardy. Case dismissed.

That’s the way it works with all types of immunity. Well, the courts of Florida decided that SYG immunity was no better than any other kind of immunity, and they required the defendant to prove by a POE that he was entitled to immunity. If he didn’t, then the prosecution still had to prove to a jury beyond a reasonable doubt (BRD) that he didn’t act in self-defense. So the defendant got two shots at getting himself acquitted on grounds of self-defense, once by proving to a lower standard of proof that he acted in self-defense, and once by requiring the prosecution to prove to the highest standard of proof that he didn’t act in self-defense.

Enter the NRA, and they lobby for a bill which moves the burden of proof in the immunity hearing to the prosecution. And it makes the burden BRD. Now the legislature commissioned a staff analysis on this question trying to decide whether the bill made sense.

The first finding of the staff was pretty much what I’ve already said.[2] The next finding said that the staff had looked at all the SYG statues around the nation, and NOBODY ELSE required the state to prove BRD at an immunity hearing that the defendant didn’t act in self-defense. They found some states which required the prosecution to show probable cause to believe the defendant didn’t act in self-defense, which is a much lower burden of proof than POE.[3]

After finding that absolutely no SYG statute anywhere requires the prosecution to prove the defendant guilty BRD at a pretrial hearing, the report observed that no other kind of immunity in Florida requires the prosecution to prove BRD that the defendant is not entitled to immunity.

The report then talks about burdens of proof at trial before a jury, noting that the prosecution has the burden of proof at trial.[4] Imagine that! Remarks about the burden of proof being on the prosecution at trial before a jury are irrelevant to the issue of whether the burden of proof should be on the prosecution at an SYG hearing.

The report then notes that the makes prosecutors liable to the tune of up to $200,000 to the defendant if they lose an SYG hearing.[5] Now this money doesn’t come out of the prosecutor’s pocket, dear taxpayer, it comes out of the prosecutor’s budget. BUT the prosecutor’s budget is funded by your tax dollars.

Finally, the report states “The bill does not appear to have any impact on state government revenues.” [Staff Report, page 6] Really? Making the prosecution prove their case beyond a reasonable doubt TWICE isn’t going to be more expensive than making them prove it BRD once? It won’t be quite twice as expensive because you’ll only have to pay one jury instead of two, but every other expense will quite likely be doubled. And making the prosecution fork over $200,000 to every defendant who wins an SYG hearing isn’t going to have an impact on state government revenues? Especially when the prosecution has to win the SYG hearing BRD?

Now, here’s a thought. The BRD standard was made a part of the law to make it just as hard as possible to convict. It was decided that we should make it just as hard as possible to convict because “It’s better that ten guilty go free than one innocent be falsely convicted.” Okay, by that reasoning, we would expect that for every eleven times the prosecution fails to prove a case BRD, ten of the defendants who go free are actually guilty.[6] And that means if we make the prosecution prove their case BRD twice, we run the risk of winnowing out ten guilty defendants at the SYG hearing and ten more guilty defendants at the jury trial, for a grand total of twenty guilty going free.[7]

But for those lucky ten guilty defendants who win the SYG hearing, it’s Christmas! They not only win their freedom, they can win up to $200,000.  So if the legislature ever passes this bill into law, you’re more likely to win $200,000 by shooting somebody than you are by buying a lottery ticket. Okay, that last remark may be somewhat of an overstatement. Sometimes I get carried away when I’m arguing against something that I think is so goshawful wrong.

Monday, November 16, 2015


I just got an email from the NRA urging me to support the passage of the open carry law [CS/HB 163] here in Florida. After they read this blog post they're probably going to take me off their email list. Although I had never read the legislation, I always thought that the proposed open carry law was a dumb law aimed at fixing a non-existent problem. The NRA's email had a link to the bill, so I clicked on it and read it. It's scary. It's not about protecting concealed carry cardholders who accidentally expose a lawfully carried firearm. It's about something else entirely. Here's the email I just sent to the committee considering the bill:

I've been an NRA member for decades, and the Second Amendment is my favorite amendment, but I cannot support this ill-considered open carry bill. It is being sold as an antidote to people getting arrested when lawfully carried firearms are momentarily accidentally exposed. As a retired prosecutor of 30 years, let me say that the odds of that happening are as slim as the odds of winning the lottery. And the odds of a successful prosecution on such an arrest are zero. If the fear is arrest when a lawfully carried firearm is accidentally exposed, why doesn't the statute simply say "accidental exposure of a lawfully carried concealed weapon shall not be considered a violation of the open carry statute"?

What it does say, in so many words is, "If you've got a concealed carry permit, strap on a gun like Matt Dillon in Dodge City and strut around." What it doesn't say but should is "do this right up until the time somebody walks up behind you and pulls the gun out of your holster and shoots you dead." You really need to rethink this bill.

Now I'm going to tell you what the bill really is. It's a Trojan horse for a scary provision [790.0015]   which basically tells officers and prosecutors "You better not arrest or prosecute any gun-toting citizen because you're liable to get your britches sued off." Since time immemorial law enforcement officers have had immunity from suit when they were acting in good faith. The rationale was that if they made an honest mistake while trying to enforce the law, they shouldn't get sued because to allow them to be sued would intimidate them into not doing their job. You know, kind of like what Rahm Emmanuel says is going on right now with the Chicago Police and the spike in crime in Chicago.

So This bill is being sold as a shield to protect law-abiding citizens when it is in reality a sword to intimidate law enforcement. And a license to allow people to recklessly carry guns exposed on their person. Purse snatching is a crime. If you pass this bill, you better start drafting another one outlawing gun snatching. Please do not pass CS/HB 163.

Two more observations and I'll get down off my soapbox:

[1] Passing the open carry law as it is now worded to solve the nonexistent problem of citizens whose lawfully carried concealed weapons are accidentally exposed is like swatting an imaginary fly with a real sledgehammer. You're not going accomplish anything except ruining whatever the imaginary fly was sitting on.

[2] What the heck does stripping law enforcement officers of immunity they've enjoyed since 1776 do towards protecting people who accidentally expose their lawfully carried concealed firearms? My final answer is "Nothing."

Friday, November 13, 2015


I wish I had kept track of all the interviews and lectures I have given since I started teaching at the Levin College of Law. I combed through five pages of a Google search and came up with over two dozen still on the web. I've easily given at least ten times that number, and sometimes I actually sounded like I knew what I was talking about. Anyhow, I decided to start putting links to my online interviews on a webpage. I'm particularly proud of the interview I gave where I demonstrated that Nancy Grace didn't know what she was talking about. Here is a link to the webpage: MEDIA HITS. As I give more interviews, etc., I'm going to try to keep the page updated.

Thursday, November 12, 2015


About twelve years ago, while I was still an active prosecutor, I was asked to write an article on pretrial motion practice in capital cases for a series of continuing education seminars to be held by various prosecutors' associations. I wrote the article, and I got to do a little traveling, giving a talk on the subject at the seminars. I was going through some papers today and found the article. I skimmed over it, and although it's somewhat dated, I think it still has some relevance to the subject. I'm setting the text of the article out below so that you, the reader, can decide whether it still has relevance. I have made one change in the article. When I presented it, they didn't like one thing I said and changed the language. I have kept the language they put in, underlining it, and I have replaced the language they took out, putting it in boldface. I'm going from memory with the replacement language, but as best I can remember, that's pretty close to what I originally wrote. To make the language flow more naturally in that section, I've added a bracketed sentence.

George R. (Bob) Dekle, Sr.
Horace Rumpole is a fictional English barrister who is best known as the hero of a series of PBS Mystery shows.  As delightful as those shows may be, practicing lawyers will find the series of Rumpole books (now extending to thirteen volumes and three omnibus collections) to be even more congenial.  In those books, Rumpole repeatedly makes sharply incisive observations on the practice of law in general and criminal practice in particular.  Rumpole’s aphorisms are not only humorous, they’re usually dead-on accurate.  In one particular story Rumpole was reminiscing about the bad old days before England did away with the death penalty.  He asked the rhetorical question “How do you try a capital murder?” and gave the arresting answer: “Just like any other case.”  
If he meant “Ideally, in the best of all possible worlds, how should you try a capital murder?” then his answer deserves our whole hearted endorsement.  We should hold ourselves to the same standards of excellence, no matter what type case we are trying.  We should not save our A-game for these important cases.  If he meant “In the world which we inhabit, if we are prudent, how should you try a capital murder?” then his answer is a recipe for disaster.  In Gregg v. Georgia, 428 U.S. 153, 188, 96 S.Ct. 2909, 2932, 49 L.Ed. 2d 859 (1976), the Supreme Court first used a phrase that, as of June of 2004, (Schriro v. Summerlin, 542 U.S. 348, ___, 124 S.Ct. 2519, 2526, 159 L.Ed. 2d 442) it had repeated in 19 additional decisions, “death is different.”  This phrase has become a mantra for the anti-death penalty forces, and it is a phrase which prosecutors involved in capital litigation hear ad infinitum and ad nauseum.  

In any courtroom trying any charge, as the stakes go up, the probability of oddity goes up.  The more the accused stands to lose, the more waves are going to be made.  A first time DUI defendant facing standard fines will likely plead guilty.  An habitual DUI defendant with deep pockets will likely do something else.  Most shoplifting trials are rather mundane affairs, but if the defendant happens to be a movie star, things become somewhat strange.  Murder prosecutions almost always combine high stakes with notoriety.  When the charge is capital murder, the astronomical stakes, the intense notoriety (if only on a local scale), and the fact that death really is different all combine to make for an experience that is more than strange, it is positively surreal.  You have fallen down a rabbit hole; you are not in Kansas any more; you do not have any ruby slippers; and the broadly grinning cat keeps disappearing and reappearing.
In a normal case, you expect to get pretrial motions to suppress evidence, for statements of particulars, to compel discovery, and a few other routine types of familiar motions.  In a capital case you can expect the unexpected.  Death penalty defenders hold seminars and establish web pages.  They get together and exercise their considerable inventiveness to come up with some unique motions.  In no particular order, we will list, with comments, the captions of a few motions suggested by various death penalty defense groups:
1.         Motion for Jury View of the Execution Process: (a blatant appeal to emotion, having nothing to do with any logical considerations of whether a defendant ought or ought not to be executed).

2.         Motion to Exclude Latter-Day Voodoo Serology Evidence Proposed by State Experts:     A responsible pleading should not ask and answer such a loaded question in its caption.  It should carry the sober caption Motion to Exclude Serology Evidence and then allege facts sufficient to prove the evidence should be excluded.
3.         Motion to Exclude Bogus Statistical Evidence Proposed by State Experts: This particular motion suffers the same infirmities as the previous. 
4.         Motion to Prohibit Prosecutorial Misconduct: (Unsettling, disquieting, yet motions of this nature have been filed).
Motions of this ilk can be and are filed by the score in capital murder cases in this country.  Other motions which are less offensive but partake the same quality are filed by the hundreds.  The capital prosecutor can find himself or herself quite literally buried beneath an avalanche of motions ranging from the laughable to the laudable.  In one  multiple defendant case prosecuted in North Florida during the mid-1980's, when the tally of pretrial  motions exceeded 200, the trial judge ordered a deadline for the filing of motions.  When the deadline passed, he was immediately bombarded by a series of motions for leave to file additional motions.    

Pretrial motions in capital cases fall into four broad categories: 1. Frivolous; 2. Cutting Edge; 3. Boilerplate; and 4. Meritorious.  We shall first examine frivolous motions.  What would account for the filing of frivolous motions?  What type of lawyer would file frivolous motions?  The first type believes that the death penalty is the ultimate evil and that it should be opposed by all available means.  As Anthony Flew observed in How to Think Straight, paras. 1.42, 1.43, when we truly believe in a proposition, we tend to uncritically accept wretched arguments supporting that proposition.  True believers, therefore, oftentimes do not recognize the frivolous nature of a motion such as the one asking that the jury be required to view an execution before deciding whether their client should be executed.  While the prosecutor’s knee-jerk reaction toward a true believer may be one of scorn; patience will serve us better. 
The second type of attorney who may file frivolous motions is the incompetent.  In the early days of capital litigation, these people were allowed to defend capital cases.  The results were disastrous, however, not in the way the foes of the death penalty would have you think.  Scores of innocent people were not put onto death row because of the incompetence of their lawyers.  Scores of guilty people were let off of death row because of the incompetence of their lawyers.  Reviewing courts, both on appeal and collateral attack, appalled by the level of incompetence, reversed and vacated death penalties at an alarming rate.  . 

The Florida Supreme Court recognized the problem of incompetence in capital cases and took vigorous measures to combat it.  They promulgated Rule 3.112, Florida Rules of Criminal Procedure, which mandated minimum experience and continuing education requirements for capital counsel.  This rule ameliorates but does not alleviate the problem.  Just as one can graduate from law school and pass the bar and still be incompetent, it is possible for this same lawyer to meet Rule 3.112's  minimum experience and continuing education requirements..  What must a prosecutor do when confronted by an incompetent?  Help him or her as much as possible.  Guide him away from land mines.  Point her in the right direction when she goes astray.  Do whatever can be done to keep the attorney from committing malpractice.  It is especially galling to have to do this when you are confronted by an obnoxious incompetent, but there is no help for it.  You must do what you must do to insure, insofar as possible, that you will achieve a death sentence that will withstand the slings and arrows of outrageous litigation.
There is a third type of lawyer who files frivolous motions.  They file a barrage of frivolous motions then argue each motion as though the fate of Western jurisprudence hangs in the balance, and a denial will result in the greatest miscarriage of justice since the trial of Socrates.  This attorney may slip in a meritorious motion.  A judge who has just denied fifteen consecutive vigorously argued frivolous motions is likely to deny the sixteenth meritorious motion by sheer reflex. 

Which brings us to meritorious motions.  How should we deal with them?  What if we believe the motion to be meritorious under the law, but we believe the law to be wrong?  Should we oppose the motion in hopes that we can achieve a landmark legal decision?  No hard-and-fast answer can be given to such an abstract question, but in answering that question in a concrete situation, it is well to also ask a second question.  What is the cost/benefit ratio of introducing another issue into a case already beset with myriads of issues? [And what if the motion is meritorious, fully supported by the evidence, and firmly based on good law?] Agree that the motion should be granted. Remember, we’re out to do justice, not just to convict.
Cutting edge motions come as the synthesis of two things, the language of Supreme Court opinions and the creativity of defense counsel.  It is impossible to tell what seemingly innocuous statement of the Supreme Court will become the ore from which the next wave of cutting edge motions will be refined, but it may be instructive to study the history of a wave which may have already crested.  Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), stood for the seemingly unremarkable proposition that a sentence in excess of the statutory maximum had to be supported by allegations contained in the charging document and a jury finding.  It certainly was unremarkable in Florida where our legislature has enacted numerous statutory enhancement provisions, each of which has been held by our Supreme Court to require an allegation in the charging document and a finding of fact in the jury verdict.

Now that the Supreme Court has made its pronouncement, how far can it be stretched?  The answer came two years later in a pair of cases, Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406 (2002), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428 (2002).  Harris confronted the issue of whether a mandatory minimum for an aggravating factor could be imposed absent a jury finding that the aggravating factor existed.  The Supreme Court held that since the aggravating factor did not cause the sentence to exceed the statutory maximum, it didn’t need to be either pled in the charging document or found by a jury. 
Ring addressed Apprendi’s applicability to capital sentencing.  The Supreme Court had already held in Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), that it was perfectly alright for a judge to make a factual finding of aggravating circumstances after a jury verdict of guilty of capital murder.  When the Court decided Apprendi, it specifically found that Walton was still good law, holding that the jury found the elements of the crime of capital murder, which made the death penalty applicable, and “once a jury has found the defendant guilty of all the elements of an offense which carries as its maximum penalty the sentence of death, it may be left to the judge to decide whether that maximum penalty, rather than a lesser one, ought to be imposed.”  497 U.S. at 497. 
Since Apprendi dealt with sentences beyond the statutory maximum, and since the statutory maximum for capital murder is the death penalty, and since the Supreme Court held that Walton was still good law when it decided Apprendi, it would seem obvious that Apprendi does not apply in capital cases.  But lawyers on the cutting edge of the law sought to extend Apprendi to capital cases, and they filed their motions accordingly.  Ring was not a logical decision.  Ring was an ethical decision.  Regardless of the logical language of Apprendi in recognizing that Walton was still viable because the death penalty is the statutory maximum for capital murder, it does not seem ethical that a grand theft charge carrying a statutory maximum of five years requires a jury finding as a predicate for increasing it to six years while a capital murder requires no jury finding as a predicate for imposing the death penalty. 

The ripples of Apprendi are not spent.  The next wave of Apprendi based motions will most likely insist that the aggravating circumstances be alleged in the indictment.  Pretrial motions of this ilk have been around for decades in the form of motions for statements of particulars as to aggravating circumstances.  Such motions are prime examples of the third type of pretrial motion, boilerplate.  In Florida, capital litigants have been filing these motions since the early seventies, and they have been undeterred by a line of cases stretching from Clark v. State, 379 So.2d 79 (Fla. 1979), to Cole v. State, 841 So.2d 409 (Fla. 2003), holding that the defense is not entitled to such a statement of particulars.
 There are two perfectly good reasons that an advocate would file such a motion.  The first is self preservation, the second is issue preservation.  Capital convictions are the most thoroughly scrutinized convictions in the criminal justice system.  Any lawyer who undertakes to represent a capital defendant had better do a more than competent job, he or she had better do a job that appears competent.   Filing boilerplate motions gives the appearance of competence. 
They present the motions, acknowledging  the law is against them, and state that they are preserving the record against a future possible change in the law.   

Which brings us to the most cogent reason to file boilerplate motions.  Courts change their minds.  Precedent gets overruled, and if you haven’t preserved the issue, you lose it.  For example, for over twenty years the Florida Supreme Court has consistently held that the defendant is not entitled to a statement of particulars as to aggravating circumstances on the penalty phase of a capital murder.  They have just held that it is within the trial court’s discretion to order a statement of particulars as to the aggravating circumstances. State v. Steele, ___ So.2d ___, 2005 WL 2509284 (Fla. No. SC04-802, October 12, 2005, rehearing denied February 2, 2006).  What finally brought this about was the dogged determination of defense counsel in repeatedly filing and refiling this motion until the Supreme Court reconsidered it.  Who knows the next well-settled area of the law that will be unsettled by an appellate court revisiting the issues raised in a boilerplate motion?  It was the repeated filing of such boilerplate motions that eventually led to the modern rules of liberal discovery in criminal cases.  For example, it is black letter law that a motion for statement of particulars can seek only to narrow the allegations contained in the charging document, but in State of New Jersey versus Bruno Richard Hauptmann, the defense filed a twelve paragraph demand for bill of particulars requesting disclosure of circumstantial matters that would nowadays be the subject of criminal discovery, e.g., whether all the ransom notes were written in the same hand and whether Bruno Richard Hauptmann wrote them.  Record on Appeal, pp. 4558-4566.  Although these particular requested disclosures were denied, other pre-discovery motions for bills of particulars were sometimes successful.  In Peel v. State, 154 So.2d 910 (2nd D.C.A., Fla. 1963), a motion for bill of particulars requested, and the trial court ordered, that the state give the defense a list of the names and addresses of the witnesses the state intended to call at trial.  Eventually boilerplate motions for statements of particulars gave way to today’s liberal criminal discovery rules.

The capital prosecutor frequently encounters motions to disqualify trial judges.  The rules governing disqualification of trial judges from state to state may vary, but the dynamics should remain constant.  The defense must present a logical, legal reason for believing the trial judge to be biased, and this oftentimes consists of an attack on the judge’s character, which is likely to stir up emotion in the form of anger.  Aristotle’s dictum about warping the carpenter’s rule was never more appropriate than in the situation of a motion to disqualify.  One example from history will suffice to make the point.

When Theodore Robert Bundy stood charged with the Chi Omega murders in Tallahassee, Florida, the Hon. John A. Rudd presided over his case.  Judge Rudd was an excellent judge whose integrity was above reproach.  Nevertheless, the defense filed a motion to disqualify Judge Rudd pursuant to Rule 3.230(d), Florida Rules of Criminal Procedure (now Rule 2.160, Florida Rules of Judicial Administration).  Without hearing, Judge Rudd denied the motion on its face, finding it legally insufficient to state grounds for recusal.  Judge Rudd, however, went farther than merely ruling on the legal sufficiency of the motion.  He further undertook to refute the allegations contained in the motion.  A petition for writ of prohibition followed, and the Supreme Court granted it, with the following language: “our rules clearly provide, and we have repeatedly held, that a judge who is presented with a motion for his disqualification ‘shall not pass on the truth of the facts alleged nor adjudicate the question of disqualification.’” Bundy v. Rudd, 366 So.2d 440, 441 (Fla. 1978).  The Florida rule required the judge to pass solely on the legal sufficiency of the allegations stated in the motion, not their veracity.  Once the judge undertook to refute the factual allegations, he placed himself in an adversarial relationship with the defendant and, by that fact alone, had to be disqualified.  If the accusations of the motion to disqualify could warp the rule, the judge might be baited into error. 
Surprisingly, when the Hon. Edward D. Cowart was appointed to take Judge Rudd’s place, one of the first motions filed by the defense was a motion to disqualify Judge Cowart.  After a full adversarial hearing on the motion, Judge Cowart simply found that the motion was legally insufficient.  In the wake of Bundy v. Rudd, it became incumbent upon capital prosecutors in Florida to educate their trial judges as quickly as possible to the nuances of motions to disqualify.  This usually took the form of filing a reply memorandum setting out the law (by return mail with copy to the judge) immediately upon receipt of a motion to disqualify.
A variation on the theme of disqualifying the trial judge is the motion to disqualify the prosecutor.  Here the rules probably won’t be quite as formalized as with the disqualification of the trial judge, but the potential for warping the rule is even greater.  It is not someone else whose integrity is being besmirched by the motion, it is you yourself.  You must work to let logic govern your actions and to dispel emotion from the slightest consideration.  The best course of action is to have a colleague answer the motion.  If you do it yourself, you are likely to fall into Judge Rudd’s error and either confuse the issues by offering a refutation where none is needed or worse yet, creating the very situation you are seeking to refute.
A standard assault on the death penalty, and one of ancient vintage, is the statistical assault.  The death penalty is unconstitutionally applied in racially discriminatory way because of a perceived statistical imbalance in the racial makeup of those who receive it.  Indeed, in holding the death penalty (as then applied) unconstitutional, the Supreme Court in Furman v. Georgia, 408 U.S. 238 (1972), used the terms “statistic” or “statistical” no less than thirty four times, and Justice Marshall condemned the death penalty as both racially and “genderly” discriminatory on the basis of statistics alone.  408 U.S. at 364, 365.   

Unsurprisingly, one of the first attacks on the newly constituted death penalty was a statistical one.  In McCleskey v. Kemp, 481 U.S. 279 (1987), the petitioner made a statistical attack on the Georgia death penalty by means of a study which the Supreme Court called the “Baldus study,” but which has ever after been known as the “McCleskey study.”  The results of the Baldus study compiled raw statistics for 2,000 murder cases prosecuted in Georgia since the reinstatement of the death penalty.  The raw data was then studied and restudied in the light of 230 variables and the bottom line finding was that murder defendants who killed whites were 4.3 times more likely to get the death penalty than murder defendants who killed blacks and black murder defendants were 1.1 times more likely to get the death penalty than white murder defendants.  This was presented as clear evidence of racial discrimination.  Before considering the significance of these or any statistics it is well to consider the caveats of two distinguished British philosophers:
Statistics are the chemical weapons of persuasion....  Release a few statistics into the discussion and the effects are immediate: eyes glaze over, jaws slacken, and soon everyone will be nodding in agreement.  You can’t argue with numbers.  Yes you can.  Even when the numbers are right, they often don’t show what they are alleged to.  Jamie Whyte, Crimes Against Logic, McGraw-Hill, New York, 2005, p. 133.
Certainly a scandalous amount of hocus-pocus with statistics is executed in the frequently fulfilled intention of deceiving other people about what various figures, which are in themselves uncorrupted, do really prove.  But there is also an abundance of self-deception, as well as a deal of error which is not the result of bad faith on anyone’s part.  Antony Flew, How to Think Straight, Prometheus Books, Amherst NY, 1998, para. 6.5.
            Flew goes on to say that, in evaluating statistics “What is needed first, and most, and all the time, is an unspecialized critical alertness.”  Ibid. para. 6.10. 
            In the exercise of unspecialized critical alertness, the trial court found that McCleskey's "statistics do not demonstrate a prima facie case in support of the contention that the death penalty was imposed upon him because of his race, because of the race of the victim, or because of any Eighth Amendment concern." McCleskey v. Zant, 580 F. Supp. 338, 379 (ND Ga. 1984).  The Court went on to find the study’s methodology to be flawed and held that it “fail[ed] to contribute anything of value" to McCleskey's claim. Id., at 372 .  On review the Eleventh Circuit opined:

"Viewed broadly, it would seem that the statistical evidence presented here, assuming its validity, confirms rather than condemns the system. . . . The marginal disparity based on the race of the victim tends to support the state's contention that the system is working far differently from the one which Furman [v. Georgia, 408 U.S. 238 (1972)] condemned. McCleskey v. Kemp, 753 F.2d 877, 899 (1985).
When the Supreme Court looked at the case, it held that in order to prevail, McCleskey had to prove a specific intent to discriminate against him on the basis of race.  It rejected McCleskey’s claim that the statistical study gave rise to an inference of discrimination because the nature of the capital sentencing decision, and the relationship of the statistics to that decision, are fundamentally different from the corresponding elements in cases where they had accepted mere statistics as proof of discrimination.  The Court bottomed its refusal to accept mere statistics as proof of discrimination upon the existence of a legitimate, non-discriminatory, and unchallenged explanation for the decision to impose the death penalty: “McCleskey committed an act for which the United States Constitution and Georgia laws permit imposition of the death penalty.”  481 U.S. at 295.
In United States v. Armstrong, 517 U.S. 456 (1996), a case seeking discovery of government records in a quest to establish racial discrimination in the prosecution of crack cocaine cases, Armstrong presented a statistical study showing that 90% of all persons prosecuted for sale of crack cocaine were black.  He then contended that this fact gave rise to a sufficient showing of racial prejudice for him to be allowed to rummage through the government’s files looking for further proof of racial discrimination.  Although the Eleventh Circuit agreed with Armstrong’s argument, the Supreme Court didn’t.  The Court pointed out that:

            The Court of Appeals reached its decision in part because it started "with the presumption that people of all races commit all types of crimes not with the premise that any type of crime is the exclusive province of any particular racial or ethnic group." 48 F.3d, at 1516-1517. It cited no authority for this proposition, which seems contradicted by the most recent statistics of the United States Sentencing Commission. Those statistics show that: More than 90% of the persons sentenced in 1994 for crack cocaine trafficking were black, United States Sentencing Comm'n, 1994 Annual Report 107 (Table 45); 93.4% of convicted LSD dealers were white, ibid.; and 91% of those convicted for pornography or prostitution were white, id., at 41 (Table 13). Presumptions at war with presumably reliable statistics have no proper place in the analysis of this issue. 517 U.S. at 469 470.
            The Court held that in order to establish entitlement to the requested discovery,  Armstrong must produce credible evidence that similarly situated defendants of other races could have been prosecuted, but were not.  Armstrong’s statistical study failing to make such a showing, he should have been denied relief.
In United States v. Bass, 536 U.S. 562 (2002), Bass sought discovery of the governments files in aid of a claim of racially discriminatory prosecution or in the alternative dismissal of the government’s notice of intent to seek death penalty.  He offered a statistical study showing that
"[t]he United States charges blacks with a death-eligible offense more than twice as often as it charges whites" and that the United States enters into plea bargains more frequently with whites than it does with blacks. 266 F. 3d, at 538-539 (citing U. S. Dept. of Justice, The Federal Death Penalty System: A Statistical Survey (1988-2000), p. 2 (Sept. 12, 2000)).  536 U.S. at 862.
            When the government refused to make the disclosure, the trial court dismissed and the Sixth Circuit affirmed.  In a decision of remarkable brevity (under 400 words), the Supreme Court observed that “raw statistics regarding overall charges say nothing about charges brought against similarly situated defendants,”(emphasis original) and held: “The Sixth Circuit's decision is contrary to Armstrong and threatens the "performance of a core executive constitutional function." Armstrong, supra, at 465. For that reason, we reverse.” Id.

The import of this line of cases is clear.  A mere showing of statistical disparity will not support a finding of discrimination.  In order to prevail on a claim of selective prosecution, the defendant must show not only a discriminatory effect, but also a discriminatory intent.  This must be done by showing that similarly situated defendants of a different race were treated differently.  A mere showing of statistical disparity will not even form the basis for an order for discovery of  prosecution records to search for evidence of a discriminatory intent.  This is because the decision to seek the death penalty is a decision within the core executive constitutional function of the prosecutor.

The prosecution need not be completely on the defensive during the pretrial phase of a capital case.  There are proactive measures that can and should be taken.  Most states now provide for at least minimal discovery in criminal cases, and some of those discovery provisions benefit the prosecution.  The America Bar Association has promulgated discovery standards which have been more or less adopted by several states.  Florida (Rule 3.220) and Arkansas (Rule 18.1) have both adopted a modified form of Standard 11-2.3, dealing with disclosures from the defendant’s person.   Each state rule has the caveat that such disclosures must be made within constitutional limitations.  This should be read to mean that seizures of such items as hair standards and blood samples should be supported by court order finding probable cause upon the basis of sworn affidavit. Often such seizures as provided for in these rules have already been made prior to the finding of an indictment pursuant to search warrant, consent seizure, or by other means, but oftentimes they are not. 
With the rise of DNA databases, “cold case” hits are becoming more and more prevalent. As inmates are received into prison, their DNA is collected and added to the state DNA database, and then it is compared against DNA collected in old, unsolved cases.  The old, unsolved cases then become old, solved cases.  While such hits give probable cause for arrest, most DNA databases don’t maintain a sufficient chain of custody for evidentiary purposes.  For prosecution, you must pull another DNA sample under strict evidentiary conditions, and the discovery rules patterned after Standard 11-2.3 provide a mechanism for doing just that.  
ABA Discovery Standard 11-2.2 provides for self-executing discovery by the defense, including the disclosure of certain specific defenses.  As promulgated into rule, the disclosure of specific defenses normally requires a demand of some sort by the state.  Rule 3.200, Florida Rules of Criminal Procedure, provides only for disclosure of the alibi defense and then only if the state first gives the defense a statement of particulars as to date, time, and place of the crime.  It is quite a superfluous provision, as Rule 3.220, Fla.R.Crim.P., provides for disclosure of defense witnesses and depositions on demand.  Rule 18.3, Arkansas Rules of Criminal Procedure, on the other hand, provides that (subject to constitutional limitations) the prosecutor may request to be informed of the defense in advance of trial, as well as the witnesses supporting the defense.  Florida would appear to stand on one end of the spectrum of such provisions (limited disclosure to the point of near uselessness) and Arkansas on the other (disclosure limited only by constitutional strictures).  To what extent one should avail oneself of such a state rule would depend upon where on the spectrum the state rule fell.

The Federal Rules of Evidence provide opportunities for proactive pretrial settlement of issues which can greatly expedite the trial of a capital case.  One of those provisions is Rule 201, relating to judicial notice.  Again, that rule has been adopted and adapted by many states (e.g. Florida Statute §§ 90.202 & 20.203 and Rule 201, Arkansas Rules of Evidence.  Whereas the Federal Rule and the Arkansas Rule provide that judicial notice is compulsory if it  is “requested by a party and [the court is] supplied with the necessary information.”  The Florida rules require timely written notice.  Although written notice and a pretrial hearing may not be required by the state rule, it makes sense as good housekeeping.  It seems better to spend a few hours before trial disposing of such matters than to chase a jury out of the courtroom to stare at the walls of the jury room while the issue is decided mid-trial.  Such delays will be numerous enough without adding to them hearings which could have been settled pretrial.
Federal Rule of Evidence 1006 provides another little used but useful tool.  The rule provides for introduction of massive amounts of evidence in the form of summaries, and it too has been adopted by many states.  E.g. Fla.Stat. § 90.956; Arkansas Rule of Evidence 1006.  The rule provides that the contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation.  Three examples will demonstrate the usefulness of this rule. 
During the Orlando trial of Theodore Robert Bundy, it was essential to place the time of the victim’s death at or near the time that Bundy had been in Lake City.  The body had lain in the woods for approximately two months, and it was partially mummified, partially skeletonized.  The surest indication of time of death came from maggot activity.  A certain number of generations of maggots could be shown to have lived on the body.  Maggots do not reproduce below a certain temperature.  The medical examiner did a study of temperatures from various weather stations in the area and did a chart showing the daily temperatures between the victim’s disappearance and her recovery.  The number of days at which the temperature was conducive to maggot activity coincided with the number of generations of maggots found on the body.  The victim died shortly after her disappearance and at a time close to when Bundy was in Lake City.  It would have taken a full day to put into evidence all the predicate information necessary to get the chart into evidence.  Rule 1006 (Fla.Stat. § 90.956) would have saved the day had the Bundy case not predated Florida’s adoption of the Federal Rules of Evidence.  Luckily the case survived the prosecution’s inability to offer the medical examiner’s chart as summary evidence.

Another area where summary evidence can prove useful is in the proving up of motive and of the pecuniary gain aggravating circumstance.  Financial difficulties on the part of the defendant oftentimes serve as a motive for crime.  Those difficulties could be demonstrated by the introduction of several banker’s boxes of mind-numbingly boring financial records; or they could be demonstrated by the testimony of a CPA who has done a financial analysis and who can summarize the defendant’s plight. 
Murders are oftentimes the byproduct of drug smuggling conspiracies.  Drug smuggling conspiracies generate voluminous telephone calls.  Criminal intelligence analysts can chart and graph those phone calls to demonstrate the patterns of calls that lead up to and follow individual smuggles, and also the spates of phone calls that surround crises such as the arrest of a mule or the murder of an officer.
Back in the late 1940's, the Air Force conducted a series tests, known as Project MX981, to determine the effects of extreme acceleration and deceleration on the human body.  At a press conference on the project, Colonel John Paul Stapp was asked how they had been able to manage such a dangerous project without someone suffering serious injuries.  Stapp attributed their safety record to an engineer on the project named Edward Murphy. Stapp said Murphy had a law that they payed strict attention to.  Of course, the modern formulation of that law is “if anything can go wrong, it will.”  Stapp said that with that law in mind, they carefully considered all possibilities before doing a test and did their best to provide against them.

Anyone who has ever tried a criminal case knows full well that Murphy’s Law reigns supreme in the courtroom.  We can deal with this fact of life in one of two ways.  We can stomp blindly into the courtroom and blunder into every available pitfall, dealing with each new disaster on an ad hoc and catch-as-catch-can basis.  Or we can carefully consider all the possibilities before going to trial and do our best to provide against them.  The motion in limine provides an excellent tool for providing against disaster.  Oftentimes we confront opposing counsel who combine an expansive definition of relevance with a resolute determination to sneak questionable evidence in while we’re inattentive or to wear down the trial judge into admission of the evidence by dint of repeated proffers.  Settling the propriety of such matters pretrial by the mechanism of a motion in limine can help the trial to flow much more smoothly.   If opposing counsel is known to be particularly obtuse, the motions in limine will have to address even the most basic issues.  If opposing counsel is known to have a realistic grasp of the rules of evidence and an inclination to exercise that grasp, then motions in limine can be reserved for truly controversial issues.  The subject matter of such motions is limited only by the imagination of the advocate, and the more such issues can be settled pretrial, the more smoothly the trial will run.
Motions in limine are not, however, motions to suppress.  If the motion addresses a cut-and-dried issue (e.g., Motion to Prevent Impeachment of State’s Witness with DUI Conviction), then the ruling will most likely be final.  If, however, the motion addresses an issue which depends upon the interpretation of other evidence, (e.g., Motion to Prevent Introduction of Purportedly Exculpatory Other Act Evidence), then a pretrial ruling is of necessity only preliminary and subject to change based upon how the evidence unfolds at trial.  Florida courts call this the “Shifting Sands Doctrine.” 
            A trial court's pre-trial ruling on a motion in limine is tentative because the shifting sands of the trial in progress may cause a trial judge to rethink an earlier evidentiary ruling based on a maturing understanding of the case. McCallister v. State, 779 So.2d 615, 615-616 (Fla. 5th DCA 2001).  The shifting sands of the trial in progress may cause a judge to rethink an earlier evidentiary ruling based on a maturing understanding of the case. Harmon v. State, 894 So.2d, 697 n.1 (Fla. 5th DCA 2003); Donley v. State, 694 So.2d 149, 150 (Fla. 4th DCA 1997).

Other states have similar rules.  E.g. Conagra v. Strother, 68 Ark.App. 120, 5 SW 3d 69 (Ct.App.Div. IV 1999); Nolen v. State, 278 Ark. 17, 643 SW 2d 257 (1982).

The prosecution need not confine itself to simple reaction during the pretrial phase of a capital case, but may actually be proactive.  The extent to which the prosecution can become proactive is limited only by the imagination and initiative of the individual prosecutor.  The extent to which the prosecution becomes proactive can have a profound effect on the course of the trial itself, and can contribute to smoother sailing during the appellate and post-conviction processes. In the normal case, the prosecutor thinks of the job as being done when the verdict is rendered and sentence pronounced.  In a capital case, the job is just beginning.  How firm a foundation is laid in the pretrial and trial phases determines whether the ultimate objective is finally achieved. 

Friday, November 6, 2015