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PAIDTallahassee, FLPermit No. 801

FACDLPost Office Box 1528Tallahassee, Florida 32302

2 • FLORIDA DEFENDER | Spring 2018

JUNE 20-22, 2019

TO REGISTER, SEE PAGE 5

HYATT COCONUT POINT

RESORT & SPA

FLORIDA DEFENDER | Spring 2018 • 3

FLORIDA ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

Post Office Box 1528Tallahassee, Florida 32302

850 / 385-5080Fax: 850 / 385-6715

E-mail: [email protected] page: www.facdl.org

EDITOR & PUBLISHERHal Schuhmacher

Becky Barlow

EXECUTIVE COMMITTEEPresident – Andrew B. Metcalf

President Elect – Richard GreenbergVice President – Hal Schuhmacher

Treasurer – Nicole P. MenzSecretary – Mitchell Stone

Immediate Past President – Lisa Call

DIRECTORS AT LARGE

EXECUTIVE DIRECTORBecky Barlow

Q Q Q

The Florida Defender is published quarterly by the Florida Association of Criminal Defense Lawyers.

The material contained herein is solely for informational purposes. Opinions expressed

herein may not necessarily reflect the views and/or policies of FACDL.

Editorial matter, change in address, and correspondence regarding advertising should be

mailed to P.O. Box 1528, Tallahassee, Florida 32302, or emailed to [email protected].

Copyright © 2018. Florida Association of Criminal Defense Lawyers. All Rights Reserved.

Huda AjlaniScott BerryJason BlankErnie ChangBob Dillinger

Jude Faccidomo

Robert B. FisherLuke NewmanSabrina Puglisi

James T. SkuthanVarinia Van Ness

Barry Wax

Tania AlaviLisa AndersonMarcos BeatonJohn BerosetPeter Brewer

Bjorn BrunvandAdam Chrzan

Clementine L. CondeSpencer CordellTom Cushman

Ron EckerMark Germain

Randall GranthamRoss Haine

Robert HarrisonMichael Hopkins

Ben HutsonTravis Koon

Ron KozlowskiJason Kreiss

Sean LandersBetty Llorente

Lee Lockett

Michael MadduxSam Masters

Frank McDermottMatthew MeyersDavid Oberliesen

Jason ReidKarla Reyes

Wayne RichterAnneMarie Rizzo

Loriellen RobertsonRichard Ruhl

Amanda SampaioLeonard Sands

Ian SeitelChuck ShaferLarry Shearer

D. Gray ThomasCyrus Toufanian

J. Samantha VaccianaCharles Vaughn

Matt WillardJosh Zelman

CHAPTER REPRESENTATIVES

Editor’s Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4H A L S C H U H M AC H E R

Executive Director’s Report: Becky’s Bulletin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6B EC KY B A R LOW

FACDL’S 32ND ANNUAL MEETING REGISTRATION . . . . . . . . . . . . . . . . . . . 5

CLE SEMINAR REGISTRATION £Blood, Breath & Tears XXV Seminar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

CLE SEMINAR MATERIALS £FACDL Law & Technology. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

£2018 Criminal Law Certification Review Seminar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

£31st Annual Meeting Seminar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40

FACDL NEWS£FACDL Calendar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36

£New Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38

£Active Affiliate Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38

£Life Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39

FEATURESWHO ARE WE? Nancy Daniels: Looking Back on a Career Dedicated to the Concepts of Gideon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 B R I A N TA N N E B AU M

Electing Better State Attorneys in Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 A DA M T E B R U G G E

DUI Notes: Pre Trial Cross Examination Strategies in DUI Cases . . . . . . . . . . . . . . . . . . . . . . 14 L . L E E LO C K E T T

WHO ARE WE? William “Bill” Sheppard, Esq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 M I TC H STO N E

Binding the Appellate Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20 RO CCO J . C A R B O N E I I I

WHO ARE WE? Seth Miller: How to Start, Become and Run a State Innocence Project . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26 H A L S C H U H M AC H E R

Killers of the Flower Moon: The Osage Murders and the Birth of the FBI . . . . . . . . . . . . . .28 R E V I E W E D BY T E R I S O P P

From Briefs to Suits: Dress Like You Write . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30 B R U C E D E N S O N

Picking a Jury: Listening with a Purpose. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 JA S O N K AU F M A N

From the Pits: A Time and a Place. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 D E N I S M . d e V L A M I N G


In this issue, in addition to discussing other areas of substantive concern,

we look at a few of the people that do what we do. Although there are many people who have defend against the constant assault on our Constitutions and the Rule of Law, we focus on three individ-uals (Nancy Daniels, William

“Bill” Sheppard and Seth Miller). Although they come from different backgrounds and have taken quite different paths, it is apparent that they all share the same core beliefs that led them to fight for others and, by their sustained and focused efforts, protect all of us. As we will discuss in the next issue, however, it is not just us. Rather, their efforts benefit all those who are or who might be involved in the criminal justice system. How many people swear to uphold the Constitution as

by Hal Schuhmacher

opposed to those that actually do it?As discussed in previous issues, I

have always been very interested in learning what led people to do what we do (the “Why” we do it). This inquiry has led me to the conclusion that, regardless of our path, we have decided that it is so important to protect those that the government may want to label and imprison and that we must dedicate our profes-sional life to this cause. I have also learned that, in order to best protect the freedoms that most take for granted, being a part of the criminal defense community carries an obligation to share our knowledge with others. Like many others, the knowl-edge I have gained from other attorneys has allowed me to better represent those either accused or being investigated and, in my small way, contribute to the overall better-ment of our system of criminal law. Of course, when I say betterment, I do not mean how to

most efficiently prosecute and convict people. Rather, I mean to always fight against any effort by any source that would seek to limit the true real life meaning of our Constitutional and legal protections. I have also learned that is not just other lawyers that can help us better serve our clients and, by extension, our Rule of Law. It is also important to listen to the individuals that work with and assist us as well as those that involuntarily become involved in the criminal justice system (our clients and jurors). Thank you for doing what you do.

A special thanks goes out to all who have shared their knowledge and experiences with us by submit-ting articles for The Defender. I would be remiss if I did not mention all of the invaluable assistance of one of the truest criminal defense attorney’s I have ever known (our Executive Director Becky Barlow) as well that of my incredibly dedicated and multi-talented Office Manger and wife of 25 years (Kris). Q

WHO DOES WHAT

WE DO

THE EDITOR’S NOTES

?How many people

swear to uphold

the Constitution as

opposed to those that

actually do it?


R E G I S T R A T I O NTo register, return this form with the appropriate fee to: FACDL, P.O. Box 1528, Tallahassee, FL 32302

or register online by June 3, 2019 at www.facdl.org. No telephone registrations, please.

SEMINAR AND SOCIAL EVENTS Earlybird After 4 / 1 / 19l FACDL Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $450 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $500

l Public Defenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $330 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $380

l Non-FACDL Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $550 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $610

SOCIAL EVENTS ONLY No earlybird rates available quantity

l Non-registered FACDL Members and guests (includes Saturday night banquet) . . . . . . . $226 per person

l Spouse / Guest Banquet Only . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $101 per person

l Saturday Night Kids’ Party . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $65 per child

CHILD 1 NAME AGE CHILD 2 NAME AGE

CHILD 3 NAME AGE CHILD 4 NAME AGE

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Check here if you do not want $10 of your registration fee to be contributed to the FACDL Political Action Committee (FAIRLAWS). This contribution does not affect the total amount of your registration and is not tax deductible.

$ Total enclosed or to be charged to credit card listed below.

Course materials will be provided in downloadable format, both for those registering and for those ordering materials.

Refund Policy: Tuition refund less a $35 administrative fee will be made for cancellations received in writing by May 3, 2019. No refund will be made after that time.

Registration fee includes: Seminar sessions and reference materials, welcome reception, Friday social/entertainment, Saturday banquet and two continental breakfasts.

To register, complete the following form and mail with check or money order, OR you may fax your registration with completed credit card information and signature.

NAME

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F O R T H O S E U N A B L E TO AT T E N D P R E S E N TAT I O N :Course Materials for CLE Credit l FACDL Members or Public Defenders $294.63 l Non-FACDL Members $324.63 Prices include shipping and handling, plus audio materials, all course materials and information for posting CLE credits online. $ Total enclosed or to be charged to credit card listed below.

Enclosed is my check payable to the Florida Association of Criminal Defense Lawyers, Inc., or please charge as indicated below:

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For more information call 850 / 385-5080.

HYATT COCONUT POINT RESORT & SPA5001 Coconut Rd, Bonita Springs, FL 34134

HOTEL ROOM RESERVATIONS CUTOFF May 19, 2019

Hal brings the best of the Keys to Coconut Point. Music, a lazy river, and the challenge of a green surrounded by water. What else does an over‑worked criminal defense attorney need?

JUNE 20-22, 2019


by BeckyBarlow

appeal, wrote the appellate briefs, and made the oral argument. The “who” suffered the late nights of work, the missed family time, the missed meals, the eye-strain, the muscle spasms in the neck/shoulders, and the pressure of carrying the weight of another’s threatened liberty. The main reason for becoming a criminal defense lawyer (the “who”) is clearly not fame. It tends to be the mission, the challenge, and the great feeling you get when success (even if small) is achieved for a client.

FACDL strives to be there to help create, support and applaud the “who.” Earlier this year, FACDL provided Florida criminal defense lawyers three excellent seminars focused on technology, death penalty law and an in-depth review of both state and federal law. In June, FACDL once again puts forth a seminar that will give the general practitioner of criminal defense law insightful presen-tations regarding court appointment cases from the JAC executive director and general counsel; juvenile justice by general counsel for the DJJ; and,

EXECUTIVE DIRECTOR’S REPORT

Becky’s Bulletin

so much more. The annual meeting traditionally starts with a welcome reception Thursday night, with the seminar on Friday and Saturday morning, mixed with afternoons and evenings of social/networking events.

Who has benefitted from what criminal defense attorneys do? I feel it better to ask, who hasn’t? Each citizen benefits indirectly. Others have benefitted directly by obtaining a fair resolution early on in a case or by obtaining a long-awaited release after being vindicated. As mentioned earlier, the achievement for the client, the who benefitted, is a part of what keeps a criminal defense attorney moving forward. Let’s add to that, the benefit to society, a society based upon justice and protec-tion of individual rights. We all benefit. Thanks criminal defense attorneys!

As always, consider FACDL.ORG your go-to for information to assist the Florida Criminal Defense Lawyer. Q

What would a person find if they were to conduct a web search

for the most important court cases in U.S. history impacting Fourth Amendment Rights, the right to an attorney, right to remain silent, right to a fair trial and due process. They would find a case name, a synopsis of the ruling, the name(s) of the judge(s) involved, and the facts of the case. At some point, several paragraphs later, the name of the attorney(s)who defended the accused might be mentioned. Just, might be mentioned.

The “who” that did all the heavy lifting is often an afterthought or a footnote. The “who” is the attorney(s) that found the uncon-stitutional issue, argued the issue in court, preserved the issue for

WHO DOES WHAT WE DO & WHO HAS BENEFITTED

The ‘who’ suffered the late nights of work, the missed family time, the missed meals, the eye-strain and the pressure of carrying the weight of another’s threatened liberty.


BLOOD, BREATH AND TEARS XXVHilton Tampa Airport Westshore

2225 N Lois Ave, Tampa, FL 33607

Hotel Reservations: 1-800-445-8667

Ask for the FACDL room rates of $129/$139+taxes Cut-off for FACDL room rates is September 5, 2018.

This year, BB&T will start off Thursday afternoon with a half day trial utilizing a judge and jury. We return to a full day of seminar speakers on Friday, covering case law updates, motions in limine, ethics of DUI and so much more.

T H U R S D AY SEPTEMBER 27, 2018

12:45 – 1:00 PM Opening Remarks

Lee Lockett, AnneMarie Rizzo & Michael Kessler (Seminar Chairs)

1:00 – 5:30 PM JURY TRIAL DAY

5:30 PM Happy Hour at Hotel Bar

(Cash Bar)

F R I D AY SEPTEMBER 28, 2018

8:15 – 8:30 AM Opening Remarks

Lee Lockett, AnneMarie Rizzo & Michael Kessler (Seminar Chairs)

8:30 – 9:30 AM DUI Case Law Update

9:30 – 10:30 AM Blood Testing-Hospital

and Legal Blood

10:45 – 11:15 AM Motions to Suppress

11:15 – 11:45 AM Jury Selection

12:45 – 1:30 PM DMV

1:30 – 2:30 PM DUID

2:30 – 3:00 PM Ethics of DUI

3:15 – 3:45 PM Breath Testing & FDLE

3:45 – 4:15 PM Defense Motions In Limine

4:15 – 5:00 PM Getting to Know Your Client Panel

£Info from Client £Immigration £Professional Licenses

FACDL Members: Check here if you do not want $10 of your registration fee to be contributed to the FACDL Political Committee (FAIRLAWS). This contribution does not affect the total amount of your registration and is not tax deductible.

REGISTRATION FORM

Or register online at www.facdl.org. Online registration will end on September 19, 2018.

MAIL ORDER FORM AND FEE TO: Florida Association of Criminal Defense Lawyers, P.O. Box 1528, Tallahassee, FL 32302 or

fax credit card information to 850 / 385-6715 or order online at www.facdl.org.

NAME

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BUSINESS STREET ADDRESS OR P.O. BOX

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FACDL Members $385

Non-FACDL Members $460

Public Defender $335

CLE It is anticipated that this seminar will be approved by The Florida Barfor 13 CLE hours including partial hour of Ethics credit.

COURSE MATERIALS All course materials will only be provided via Dropbox, event app and via website for FACDL members. Go Green!

UNABLE TO ATTEND? $400.65 for course materials and audio of live seminar for CLE credit

REFUNDS Refunds, minus a $35 fee, will only be allowed until 4:30 p.m., September 5, 2018. After that date and time, any registration may only be modified to materials and audio for CLE credit as no refunds will be made after 4:30 p.m., September 5, 2018.


Billing address is same as above.

CARD NUMBER EXP. DATE


COURSE MATERIALS FOR CLE CREDIT $400.65 Available via dropbox for non-FACDL members. FACDL members will have access to materials through FACDL.org once purchased. Course material prices include audio recording, written materials, and information for you to post CLE credits with The Florida Bar.

FACDL Members: Check here if you do not want $10 of your registration fee to be contributed to the FACDL Political Committee (FAIRLAWS). This contribution does not affect the total amount of your registration and is not tax deductible.

BLOOD, BREATH AND TEARS XXVBLOOD, BREATH AND TEARS XXVHilton Tampa Airport Westshore

2225 N Lois Ave, Tampa, FL 33607

Hotel Reservations: 1-800-445-8667

Ask for the FACDL room rates of $129/$139+taxes Cut-off for FACDL room rates is September 5, 2018.


Editor’s Note: In 2017, former Second Circuit Public Defender Nancy Daniels, the first woman elected as Public Defender

in Florida, received the Lifetime Professionalism Award from the Tallahassee Bar Association. Daniels served as Public

Defender for 26 years. FACDL Past President Brian Tannebaum takes a look at her storied career in this interview.

by

Brian Tannebaum

What is Nancy Daniels’ day like in 2018?My typical weekday in 2018 still

involves going to an office — the Florida Public Defender Association Office. I usually exercise for 30 minutes or so and then head into the office to work on legislative projects. I work the whole day during session but usually head home in the late afternoon on other days. It’s still a pretty well-established routine, but I am not in charge of anyone and the stress level is much-reduced from my days as the PD.

When and how did you make the decision to become a lawyer? Was there a life event, TV show, mentor?

I decided to be a lawyer or at least go to law school as I neared the end of undergraduate school. I was on a track to be an English teacher, but it didn’t seem right to me as I got closer. I realized I would need to support myself and wanted something different than academia. There was a mentor who I had briefly worked for as a journalism intern at the Jackson-ville Journal newspaper. She noticed my

interest in legal stories, and suggested law school. That planted the seed.

What led you to the Public Defender’s Office?

I was led to the PD’s Office through my first job after law school. As a law clerk on the central staff of the First District Court of Appeal, I worked on every type of case, but I found myself most drawn to the criminal appeals and especially the defense side of the arguments. So I determined to seek a job in the appellate division, and luckily I was able to get one.

Some people knew they wanted to be a

lawyer at a young age, what did Nancy Daniels want to do when she was a kid?

When I was a kid, I intended to be the first female professional baseball player but when that did not work out, I veered to flight attendant but I was too short for that. Then in college I thought I would be a poet. I was all over the map.

When was your first election and how did you make the decision to seek the position of Public Defender?

My first election was in 1990. The longtime Public Defender, Michael Allen, had been appointed to the First District Court of Appeal, and Governor Martinez appointed a person who had

NANCY DANIELS:Looking Back on a

Career Dedicated to the Concepts of Gideon

“I was a shy person and running for office was a stretch. But I loved the office and something just propelled me to give a go.”NANCY DANIELS

W H O A R E W E ?


BRIAN TANNEBAUM is a FACDL past president. He has law offices in Miami and Tallahassee.

to stand for election because more than half of the term remained. I was a rather shy person, and running for office was a stretch. But I loved the office from the six years I had worked there, and something just propelled me to give it a go. One friend told me I was too shy, another told me I was too obnoxious. But somehow, with great support from friends, family, the FSU law school, and lawyer friends, I won a tough Democratic primary and then the general election. The shocking thing about the win was that I had to start the job one week after the election!

Take me through the growth of the office. When you started, how many lawyers were there? And when you left? Can you say what the biggest change was?

When I started, I think the office had 42 lawyers and when I left we had 65 (28 appellate and the rest trial lawyers.) I would say the biggest change over the years was the severity of the penalties for our felony clients. We went from the days of parole to the terribly unfair Sentencing Code and all of the enhancement statutes, and the stakes were so high and the work was so stressful as a result.

This is one of those questions that is hard to answer, but is there one case in your career as a public defender that changed your life?

There was one case, it was a capital case I worked on with one of my heroes, Mike Minerva. Mike taught me how to thoroughly investigate and prepare a serious case for trial, and although we ended up settling the case for life with a mandatory 25 years, I learned the fundamentals of case preparation. I have stayed in touch with this client and represented him before the Offender Review Commission, and also have learned a lot about the parole process as well. I also had a murder case with a multiple personality client and that was another great learning experience.

You were involved in legislative affairs, if

you had a “wish” that would be granted, what would the legislature do regarding criminal justice in Florida?

If I had one wish, I would have the Legislature eliminate mandatory minimum sentences. And if I had two, I would have them require judicial waivers for juveniles before they could be prosecuted as adults.

Name a historical figure that if alive today, you would want to have lunch with?

I would lunch with Abraham Lincoln. I find him such an intriguing person, and would love to know how he became so wise.

This is not a “regret” question, but if Nancy Daniels rewound her life, where may we have found her instead of the public de-fender’s office?

If I had not been a lawyer, I would have enjoyed journalism. I love to write and I like human stories, so it would have been great to be a crime reporter.

Tell me something no one knows about you, or few people know that would sur-prise them?

Few people know that I meditate regularly and trying to develop my spiri-tual side in recent years.

What are you most proud of in your tenure as PD?

I am most proud that we started the Drug Court during my time and I worked in it for many years. I am a believer in therapeutic jurisprudence and I strongly believe that addicts can beat their addictions with the right support and patience. There are flaws in the more oppressive Drug Courts, but done correctly, I think they can really help people and save them from criminal sanctions at the same time. I used to worry a lot about whether I was a tough-enough trial lawyer and strong, assertive Public Defender, but now that has gone by the wayside. I care more now about kindness. Q

I have had a long and positive relationship with Nancy Daniels,

beginning with my service on the 4th DCA and her supervision of FSU Law School Interns at the court. One case in particular stood out, when she in essence, saved a legal career by showing compassion to an intern facing serious personal problems at home. Later, at the Supreme Court, I was struck by her unique blend of idealism and high standards with practical leadership that resulted in the clients of the public defender’s office receiving the finest representation possible. This was especially apparent in capital cases where capital public defender teams, both at the trial and appellate levels, provided unparalleled representation that served as a model for the criminal capital bar. This was all done in an office that was chronically underfunded. In short, Nancy’s leadership and service leaves behind, but in place, an incredible legacy for Florida’s Justice System.

JUSTICE HARRY LEE ANSTEAD, Ret.Justice of the Supreme Court of Florida,

1994-2009Chief Justice, 2002-2004

With utmost respect for the criminal justice system and

everyone involved, Nancy has been a trailblazer in representing poor people accused of crimes, in mentoring young attorneys and modeling a respectful, but effective practice of criminal defense, and she nurtured and grew the Public Defender’s Office, 2nd Circuit, into one of the best criminal law firms in the state, in both trials and appeals.

ANDY THOMASPublic Defender, 2nd Judicial Circuit of Florida, successor to Nancy Daniels


by

Adam Tebrugge

INTRODUCTION“The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict. The prosecutor serves the public interest and should act with integrity and balanced judgment to increase public safety both by pursuing appropriate criminal charges of appropriate severity, and by exercising discretion to not pursue criminal charges in appropriate circumstances. The prosecutor should seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including suspects and defendants.”1

There has recently been increased recognition that prosecutors are the most powerful actors in the criminal justice system. Fordham Law professor John Pfaff argues that prosecutors are also primarily responsible for the

phenonmemon of mass incarceration.2 Whether due to political realities, stasis, or the nature of the adversary system itself, prosecutors have traditionally argued for lengthy sentences of incar-ceration regardless of the costs to society. Additionally, prosecutors possess great discretion but are rarely held account-able for their actions, except potentially by the voters.

Around the country a new wave of reform-minded prosecutors has begun to win elections.3 These candidates resist traditional appeals to “law and order” or locking up criminals and throwing away the key. Instead, this new breed of prosecutors are more responsive to the communities they serve. They recog-nize that incarceration is expensive and does little to change behavior positively. Once elected, these reform prosecutors are willing to work with other actors in the criminal justice system to implement policies designed for better outcomes.

Florida has lagged behind other states when it comes to criminal justice reform. Our legislature has done little to stem the tide of inmates entering the system or to provide rehabilitation to them while incarcerated. Though significant reforms

must be accomplished in the legislature, many genuine and positive changes can be accomplished at the local level by state attorneys.

The 20 elected State Attorneys are constitutional officers with enormous power in their respective judicial circuits. In 2016, three candidates who ran on explicit reform platforms unseated incumbents who had been criticized for harsh policies. Aramis Ayala in the 9th Circuit (Orlando), Melissa Nelson in the 4th Circuit (Jacksonville) and Andrew Warren in the 13th Circuit (Tampa) have each made significant changes to their offices in the short time since their election. However, in other circuits, long-time incumbents continue to oppose even modest reform efforts. Additionally, the Florida Prosecuting Attorneys Association has proven to be a significant roadblock to reform bills in the legislature.

In 2020, 19 of Florida’s 20 State Attorneys will be up for election. With criminal justice reform issues taking on increased importance, voters in 2020 will have an opportunity to evaluate a candi-date’s approach to the justice system. If Floridians want meaningful criminal

Electing Better State Attorneys in Florida


justice reform, we will have to elect State Attorneys who are committed to reform policies. To have that opportunity we need to start the process of identifying those candidates and those issues that will lead to electing better State Attor-neys in Florida.

FLORIDAArticle V, Section 17 of the Florida

Constitution, requires that a State Attorney be elected for a four-year term in each judicial circuit. Chapter 27 of the Florida Statutes govern their powers and responsibilities. The Florida Rules of Criminal Procedure provide additional requirements and guidance for prosecutors. Practically speaking, much of the power of the State Attorney comes from custom, tradition, and the personality of the office holder. Policies may vary widely among the judicial circuits depending on the mandates of the elected state attorneys, and this affects the rate of incarceration from each circuit.4

Perhaps the most important power vested in Florida prosecutors is the charging decision. Grand juries are required and typically used only in first degree murder cases. All other charging decisions are made by assistant state attorneys. Florida’s Criminal Punish-ment code bases sentencing recom-mendations on a scoresheet whose points are based on the charges. Other laws establish minimum mandatory penalties if certain allegations are made and proven. Still other laws require sentencing enhancements if the prose-cutor elects to charge the defendant as a habitual offender or prison releasee reoffender. Once the prosecutor files charges in a case, his or her decision can severely circumscribe the ability of judges to fashion appropriate sentences. Day to day in the courts of Florida, prosecutors control most plea bargains and sentences.

At the local level the State Attorney influences many aspects of the day-to-day operations of the judicial circuit. The court calendar, trial scheduling and discovery deadlines are all established

only after significant input from the prosecutor. Most counties and circuits maintain criminal justice or public safety commissions that set local criminal justice policy. State Attorneys tend to have significant influence at these commis-sions. Finally it bears noting that the State Attorneys Office is a pipeline to the judiciary. In many circuits more than half the judiciary has prosecutorial experience.

Elected State Attorneys and their assistants are generally not held account-able for their misdeeds. Trial courts are reluctant to impose sanctions even for egregious misconduct. Appellate courts have developed doctrines such as “harmless error” or “failure to preserve,” which incentivizes misbehavior. Theoreti-cally lawyers who work for the State Attorneys office are accountable to The Florida Bar. In reality prosecutors rarely face sanctions for unethical or abusive behaviors. The best way to hold elected officials accountable is at the ballot box.

Additionally, the Florida Prosecuting Attorneys Association has significant influence over legislative policy. Led by longtime lobbyist Buddy Jacobs, the FPPA prides itself on standing in the way of reform efforts. Jacobs, who has served for nearly 50 years, has opposed “safety valves” for minimum mandatory sentences, opposed alternative sanctions for first offenders, and opposed judicial oversight over direct file decisions, to name just a few.5 Although Jacobs serves at the pleasure of the Association, his longevity and institutional memory ensure that he is more powerful than any individual elected member.

Advocates have been pushing the Florida legislature to adopt a package of minor reforms. These reforms would allow judicial “safety valves” to avoid minimum mandatory sentences for some first time offenders, raise the “felony threshold” for theft to an infla-tion adjusted $1,000 (from $300), and curtailing the use of monetary bond. None of these reforms have passed the legislature despite a general consensus as to their merits. If Floridians want immediate criminal justice reform, the

solution is to elect better state attorneys who will be responsive to community sentiment.

REFORM POLICIESReformers suggest state attorney

candidates should be questioned about a variety of issues and required to provide specific responses. Among the topics:

Monetary Bail Reform:The question posed by reformers

is simple: Should a defendant’s wealth determine whether they remain incarcer-ated pretrial? If defendants are presumed innocent, how can we justify jailing them before trial, particularly for low level offenses? If the goal of bail is to ensure court appearance, are there other tactics that can succeed? Whether working with the chief judge to revise bond schedules, embracing diversion or supervision programs in lieu of bail, or making release recommendations at First Appearances, state attorneys have the power and opportunity to reduce the number of persons held in county jails pretrial.

Conviction Integrity: Prosecutor offices around the

country have begun conviction integrity divisions. In the best examples, trained attorneys and investigators review cases where serious questions have been raised about the guilt of a prisoner under sentence. If major flaws are identified, the prosecutor works with the court and defense counsel to identify a remedy, including retrial or dismissal. Sometimes this review extends to sentencing integ-rity, which includes codefendants who received widely disparate sentences or offenders who received maximum sentences for relatively minor conduct. In Florida, 4th Circuit State Attorney Melissa Nelson has opened a convic-tion integrity unit.6 The 13th Circuit’s Andrew Warren has promised to open one by the end of 20187.

State Attorneys can also lead the way in preventing wrongful convic-tions. They should advocate for laws that require recording all interrogations,


improving eyewitness identification procedures, and strengthening indepen-dent forensic science review of cases. Prosecutors should also be cautious about presenting unreliable evidence, whether it comes from a confidential informant or a police officer with a history of false testimony. In the 13th Circuit, State Attorney Andrew Warren has held a wrongful conviction seminar, with presentations by exonerees, to help law enforcement and his staff change behaviors that led to unjust results.8

Sentencing Reform:Prosecutors control all aspects of

the charging decision, which allows them to substantially control sentencing outcomes. Florida’s criminal punishment code allows the maximum sentence for all felonies but does not allow the court to mitigate sentences except in rare instances and in plea bargains. The result is that almost all cases are resolved by plea bargains between the prosecution and the defense, with little input from the judge. Internal state attorney office policies about making charging decisions and sentencing recommendations there-fore determine outcomes in many of Florida’s judicial circuits.

In Philadelphia, a reform candi-date named Larry Krasner was elected District Attorney in 2017. Upon taking office, he issued a memo to his assistants outlining new charging and sentencing policies.9 The memo requires assistant district attorneys to decline marijuana, paraphernalia and most prostitution charges. Additionally, prosecutors were advised to file lower gradations of theft charges and to increase reliance upon diversionary and reentry programs instead of jail. When jail is requested, in most cases the recommendation should be below the lowest end of the sentencing guidelines. Prosecutors must also announce and justify on the record why they are seeking incarceration and the financial cost of the sentence to taxpayers.

In Florida, State Attorney candidates should be questioned about their support for diversion, reentry, and sentencing

reform. They can also be asked whether they will take into account the collateral consequences of criminal convictions, such as barriers to employment or immigration status. Restorative justice practices have potential to help victims recover from criminal acts, and candi-dates should be asked about their famil-iarity with and support of such practices. State Attorneys can also ensure that fines and fees are reasonable, proportionate, and transparent and that probation terms are limited.

Direct File Reform:Florida law presently allows the

State Attorney wide discretion as to whether to prosecute juvenile offenders in adult court. The direct file decision is not reviewable by the judge in most instances. Prior to the elections of 2016, the 13th judicial circuit led the state in direct files (131 individuals in 2015-16)10 Following Warren’s election, direct files of juveniles declined by 25 percent in his first year in office.11

Accountability:Prosecutors are immune for most

actions taken while in office. It is rare to see convictions reversed, even when the courts determine there has been prosecutorial malfeasance. The Florida Bar rarely reports that any assistant state attorney has been sanctioned for misconduct. Therefore, if there is to be accountability at present, we must rely on the elected State Attorney to adopt and enforce internal policies and disci-pline. State Attorneys should not only ensure compliance with the requirements of Brady and Giglio, they should demand professionalism from all their assistants. State Attorney offices must also be prepared to investigate and prosecute unlawful use of force crimes committed by law enforcement officers. They should be responsive to community input and oversight while maintaining indepen-dent judgment and transparency.

Death Penalty:Shortly after taking office, 9th

Circuit State Attorney Aramis Ayala

announced that her office would no longer seek the death penalty. Governor Scott then removed her from a number of pending prosecutions and reassigned them to another state attorney. Ayala challenged this in the Florida Supreme Court but lost. In response, Ayala announced she was forming a death penalty review panel to advise her in capital cases.12 Melissa Nelson in the 4th Circuit and Andrew Warren in the 13th Circuit have substantially curtailed their offices pursuit of the death penalty since taking office. Now that a unanimous jury is required to impose the penalty, death sentences have fallen dramatically around the state. Voters should question candidates about the substantial expenses involved in capital cases and whether the office will be cautious about seeking death.

Criminal Justice Reform:State Attorneys and candidates for

the office should be asked if they are satis-fied with the legislative positions taken by the Florida Prosecuting Attorney’s Association. Candidates should pledge to support outcome-based reforms that will reduce reliance on incarceration, and support treatment and rehabilitative alternatives to jail. At the local level, the State Attorney should be seen as a leader in efforts to make the system more fair, efficient and reliable. As always, actions speak louder than words. Be wary of elected State Attorneys who claim to be reformers when this is not supported by their record.

THE 2020 ELECTIONSAn elected State Attorney serves

a four-year term. In 2020 reformers will have an opportunity to effectuate change, as 19 of Florida’s 20 State Attorney offices will be up for election.13 It is possible that as many as a third of the incumbent office holders may choose not to seek reelection. Criminal justice reform is truly a nonpartisan issue and has liberal and conservative supporters, so it is important not to judge a State Attorney candidate on the basis of his or her party affiliation. Keep in mind that

(Kennah, 2011)


ADAM TEBRUGGE is a Board Certified Criminal Trial Attorney who has been a member of the Florida Bar for 33 years. He now works on criminal justice reform.

in Florida, many races can be decided at the primary level.

Circuit-wide campaigns can be expensive and cover a large geographic territory. The best candidate will be someone with extensive criminal justice experience who also has experience in community affairs. If a candidate has served as an assistant state attorney, his or her track record should be thoroughly analyzed. Experienced criminal defense lawyers may be qualified, and there is also precedent of judges running for State Attorney. The local criminal justice community should be able to identify a suitable candidate in each circuit and then ensure that person receives support.

A number of groups have announced their intentions to assist reform candi-dates for State Attorney in upcoming elections. The American Civil Liberty Union’s Campaign for Smart Justice has begun a nationwide public education effort about the importance of prosecu-tors. “Real Justice Teams” (a political action committee) notes that the United States has 2,400 elected prosecutors and claims: “We exist to place progressive, reform-minded women and men who want to end mass incarceration in each of these 2,400 positions.”14 “Color of Change” is another PAC that emphasizes racial justice and recently played a role in electing progressive district attorneys in Durham and Mecklenburg Counties in North Carolina. At the University of North Carolina, Professor Carissa Hessick has launched the Prosecutors and Politics Project. This project’s goals are to focus scholarly attention on the democratic accountability of prosecu-tors, analyze the relationship between prosecutors and politics, and increase voter knowledge about prosecutors and criminal justice issues.

After election, other groups exist to help support reform-oriented state attor-neys. “Fair and Just Prosecution” works with newly elected reform prosecutors to embrace “prevention-oriented approaches to public safety that are rooted in local

communities, based on data and evidence, and less punitive whenever possible.15 A collection of law professors, students, lawyers and advocates concerned about prosecutorial misconduct has started a website where they research mechanisms available to address and improve prosecu-torial accountability.16 A newly elected State Attorney must work with all of the many participants in the criminal justice system in order to effectuate positive change.

CONCLUSIONFlorida is a leader in mass incar-

ceration. The billions of dollars spent annually on the Florida Department of Corrections to lock people up might be better used elsewhere. Voters interested in criminal justice reform do not have to wait on the legislative process to see change. At the local level, the elected State Attorney is the most powerful actor and can implement significant reforms upon taking office. Voters need to exercise their ability to hold these powerful elected officials accountable to the communities they serve. The policies of incumbent state attorneys should be closely scrutinized. The election of 2020 provides Florida voters with an opportunity to elect a new class of State Attorneys who will truly “seek justice within the bounds of the law.” Q

1 American Bar Association Fourth Edition of the Criminal Justice Standards for the Prosecu-tion Function, Standard 3-1.2(b) “Functions and Duties of the Prosecutor.”

2 John Pfaff, Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform (2017).

3 “Law and the New Order: A Fresh Wave of District Attorneys Is Redefining Justice” by Alan Greenblatt at Governing.com, https://tinyurl.com/y7upqesy (April 2017).

4 Florida Criminal Justice Circuit Profiles maintained by the Florida Office of Economic and Demographic Research, 2015-16. (September 2017), https://tinyurl.com/y6why8gj.

5 “The Most Powerful Lawyer in Florida is Keeping Criminal Justice Reform” by Ron Sullivan at the Huffington Post, https://tinyurl.com/yc53jz28 (April 3, 2017).

6 “In a Florida First, Jacksonville’s State Attorney Hired Someone to Exonerate Inmates,” by Andrew Pantazi, Jacksonville.com, https://tinyurl.com/yaho8nju (January 29, 2018).

7 “Hillsborough State Attorney Vows to Create Conviction Integrity Unit This Year” by Dan Sullivan, Tampa Bay Times, https://tinyurl.com/y7qhjztf (April 23, 2018).

8 Id.9 “New Policies Announced February 15,

2018,” https://tinyurl.com/ybzrx8jg.10 OPPAGA “Direct file of children to adult

court is decreasing”, https://tinyurl.com/y8jb27so (March 2017).

11 “State Attorney’s Community Report,” https://tinyurl.com/yauq8b3 (January 2018).

12 “State Attorney Ayala Rescinds Her Death-Penalty Ban” by Gal Tziperman Lotan, Orlando Sentinel, https://tinyurl.com/y73q7drg (September 1, 2017).

13 Only the 20th Circuit will elect a new State Attorney in 2018.

14 www.realjustice.team (2018). 15 “Our Work and Vision,” www.Fairandjust-

prosecution.org.16 www.Prosecutorialaccountability.com.

Neuropsychology Consultations, Inc.Michael J. Scott, Psy.D, ABN

[email protected] Lic # PY5960

5700 Hollywood Blvd.Hollywood FL 33021

www.neuropsychologyconsultations.com


John Henry Wigmore told us that “Cross examination is the greatest

legal engine ever invented for the discovery of truth.” Wow, let that resonate with you for a moment. As criminal defense attorneys, we are quite possibly called upon to rev this engine more than any other. But we should be honing our cross-examination skills more often. After all, Terrence McCarthy observed that cross-exami-nation is the most difficult skill for a trial lawyer to learn.1 As trial attorneys, we should practice our crossing skills all throughout the year, not just in trial. Just look at professional athletes. Even the best show up each year for training camp in the NFL before the season starts. After several weeks of training and practice, their reward is to play in four pre-season games. Oh, and did I mention they practice in between each one? So why wouldn’t we do the same thing?

Think of a phone interview, or a deposition as your “training ground.” That’s where you get to practice, make mistakes, get back up and get back at it. Think of evidentiary and formal review hearings as your pre-season games, where you get a bit more serious with your cross. A “dress rehearsal” of sorts. This training regimen is a must if you want to be ready for trial. No matter what your experience level is, keeping

your cross-examination skills sharp in between DUI trials is critical.

Oftentimes seminars and articles on cross examination focus only on trial and hearings. Although the rules of cross examination in pre-trial proceedings are somewhat relaxed, there are certain times where a strong pre-trial cross can make your l i fe much easier when cross examining w i t n e s s e s a t trial. Here are a few different areas where you can step into the “bat t ing cage” and get some quality batting practice before the big game.

DEPOSITIONS/DSHMV FORMAL REVIEW HEARINGS

The prohibition against asking a question in which the answer is unknown does not generally apply in a deposition. However, that does not mean that you want the witness to know that. Ask questions as if you already know the answer. Prepare for your deposition just as thoroughly as you would for trial. For example, where you have done a sufficient job in crossing the officer on the walk and turn exercise, why not swing for the fences with a

strong parting shot before moving on to the next exercise:

Q: And again, on the second nine steps he never stopped walking?

A: No.Q: He never missed heel to toe?A: Correct.Q: So, he did pretty good on that

exercise?A: Not bad.

It happens. It might not happen often, but when you

squeeze that question in the appropriate place at

the appropriate time, whammo! When it

works, it can be a game changer. You won’t b e

a b l e t o o r d e r that transcript fast

enough. But what if the officer disagrees? Who cares?

There’s no judge or jury there. His graph probably suggested

your client exhibited more than the required number of clues anyway. But when you are giving a strong, consistent cross in the right case, even a tacit agree-ment to that last question can be a gold mine. And no, you couldn’t have known the actual answer before you asked it, but at depositions virtually no harm can come from that question.

Use depositions, and even formal review hearings to test your witness. Find out how far he or she is willing to go with your “flow.” One well-known strategy of cross-examination

by

L. Lee Lockett

DUI NOTES

Pre Trial Cross Examination Strategies in DUI Cases


can be used to test your witnesses. Getting them into “yes” or “no” mode is sometimes helpful. This is where you ask a series of short yes or no questions to get the witness into a routine. Consider the case of a civilian witness who saw your client back into a truck in a parking lot:

Q: You never met Mr. Fournette?A: No.Q: You didn’t see him stagger before

getting into his car?A: No.Q: There were no street lights in

the area?A: No.Q: You don’t’ know what might have

obstructed his view?A: No.Q: You don’t know who owned the

car he was driving?A: No.Q: You have no idea if Mr. Fournette

had been drinking?

So again, while you wouldn’t ask that question for the first time at trial, you can at a deposition or a formal review hearing. Use these pre-trial opportunities to test how susceptible the witness is to agreeing with your theory of the case. Test how effective your cross-examination style is. If that last answer had been anything other than a “no,” who cares? You only had a five percent chance of winning the DMV hearing anyway2 and there’s no judge or jury at the deposition. Try other chapter ending leading questions with the officers such as, “So this was a close call;” “You weren’t sure what to do;” “You considered calling her a ride;” or my personal favorite, “You aren’t very good at DUI investigations are you.” Okay that last one might be pushing it, but the message here is that you should get creative in the pre-trial stage and find out what works with each witness.

UNSWORN WITNESS INTERVIEWS

Don’t put your sword down here gladiators. Just because you are talking

LEE LOCKETT is a past president of the Northeast Florida chapter of the FACDL (Jacksonville) and a current Board Member for FACDL. He is a member of the National College for DUI Defense as well as the DUI Defense Lawyers Associa-tion. He is on the faculty of FACDL’s annual Blood Breath and Tears DUI seminar held in Orlando. He is AV-Rated. He can be reached at 904 / 858-9818 or [email protected].

on the phone with a witness or simply emailing them questions, be careful to maintain that cross mentality. Because many of our clients with no prior DUI’s are electing to waive the formal review hearing, and many judges are unwilling to grant you a depo, you might be left to your own devices. One tool you have is the email. At first I was reluctant to email questions, but this option sets up nicely when you know the witness won’t grant you a recorded interview. Plus, it can serve as a knock-off version of a deposition transcript. It can be used at trial as well for impeachment purposes and doesn’t require a witness to the statement. In my opening paragraph I will always say something along the lines of “Please answer these questions on your own. Please try to answer them from your memory. If you need to refer to any reports to answer any question, please state so.” Then one of my actual questions is “Did anyone help you answer any of these questions.”

Although with witnesses who did not prepare any reports, you might be

on more of a fact-finding mission and therefore leading questions might not be as appropriate. But for the officers, you can style many of your questions as you would in court. Of course there is less muscle to your cross on the email, it’s important to keep the leading questions flowing in the right areas. For example, we all have run into “Ofc. Ohandalso.” You know, the guy who constantly adds bad facts about your client that aren’t written anywhere in their four reports. To neutralize this tendency, try the following, even in an email:1. You have reviewed your reports?2. They’re complete?3. They’re accurate? 4. They contain all the driving

patterns you observed?4. They contain all the statements Mr.

Bortles made? 5. They contain all the observations

you made of him?6. They contain all the information

Ofc. Ohandiforgottomention told you?

Although these questions are in print, the psychological impact on the witness is similar to asking it in person. The topic in number five above leaves little room for filibustering due to the way it’s written. Can you imagine the different answers you might expect if you had phrased number 5 in the following way: “Can you think of any other obser-vations you made of him that aren’t in your report?”

The purpose of course in this line of questioning is to impeach them at trial when they go off the grid and start adding observations of impairment that were never mentioned before. Once an officer accepts the premise that his report is complete and accurate, any future

Think of a phone

interview, or a

deposition as your

“training ground.”

Think of evidentiary

and formal review

hearings as your

pre-season games.

SEE PAGE 25


William “Bill” Sheppard, Esq.

because he was setting the case up for an appeal from minute one. He figured that litigating in a conservative town and in a state oriented system it would be the appeals that would eventually lead to favorable results for his clients, and they did.

Sheppard wouldn’t set every motion to suppress for a hearing or try every case, but he was certainly prepared to do so and he was prepared to lose before he would win. He has over 400 published appellate opinions to his name in State and Federal courts. He has represented some of the most notorious criminals and has litigated some of the most famous criminal and civil rights cases in the state.

Sheppard has made the law, has

changed the law and has saved lives. His work in the area of prison reform, civil rights and criminal defense is legendary. So who is Bill Sheppard, where did he come from and how did he get here? The following will answer some of those questions and provide some insight into what makes him tick.

Bill Sheppard grew up in Southeast Oregon in a small farming community. At 16 his family moved to Orlando, Florida. He entered into ROTC and graduated Florida State University in 1963 as a lieutenant. From there he was scheduled to be deployed to a forward artillery unit in Vietnam. Weeks before he shipped out he was offered to join a top secret 32 man assignment. He had to decide without knowing what he was

by

Mitch Stone

I was asked to interview Bill Sheppard for this issue of The Florida Defender

focusing on the men and women lawyers in Florida who have had an impact on criminal defense. Sheppard is one of the prominent criminal defense lawyers who I met 30 years ago when I arrived in Jacksonville to start my legal career at the State Attorneys Office. Over the past three decades I got to know him. He told me he collects rocks from around the world so I once brought him a rock from a trip to Cambodia.

I also was fortunate enough to have litigated against him as a prosecutor and with him as a defense lawyer. He is one the people who has influenced my career. He has trained dozens of criminal defense lawyers who are effective advocates and members of FACDL today.

As a new prosecutor you learn about the defense bar by talking to the more senior prosecutors in the office. Attorneys and staff alike viewed Sheppard as one of the best. He knew how to exploit the weaknesses of your case. He didn’t care that a trial judge was probably not going to grant his motion to dismiss or suppress or that a jury would probably convict,

W H O A R E W E ?


agreeing to. He figured anything was better than the front lines of a war where he would have what he called, “about a four percent chance of survival.”

The deployment turned out to be manning a surface to surface nuclear missile in Korea. The weapons he would be in charge of had the firepower considerably more powerful than the atomic bombs that had decimated Japan 20 years before. At the time, he was alright with being in charge of that.

As his term in the military was winding down he found out that he could get out early by going to law school, so he applied and was accepted into the University of Florida College of Law. During those years while many people his age were protesting the war and marching for civil rights he remained a conservative military minded student who had no interest in any of that. He graduated law school, got married and moved to Jacksonville where he took a job at a law firm primarily engaged in banking law.

So how did this conservative former military officer who was representing banks end up with long hair and a beard spending the next 50 years representing prisoners, pornographers and murderers?

“Well, I was being sworn in to federal court so I could represent these bankers and real estate developers, and the district judge had a rule that newly inducted lawyers had to accept a pro se appointment. The one I got was representing black Muslim prisoners who had filed a lawsuit demanding that the prison provide them a Koran, access to a Muslim preacher and pork-free meals. That was the first time I had ever met a black Muslim. I had no idea what this was about, so I went to the prison and my clients explained what they wanted and why. It sounded fair to me so I went to work.”

It was that case that took him away from banking law and into the world of the criminal justice system. Sheppard

contacted Elijah Muhammad, the leader of the Nation of Islam, and as he recalls it, “When I told him that I wanted him to send a Muslim preacher to Florida to lead these muslim prisoners in prayer he hung up on me.”

But Sheppard persisted and through his efforts both in and out of court he was able to win his clients the relief they sought. That case opened up Sheppard’s eyes to the abuses prisoners experienced. It ended up causing Sheppard to leave the silk stocking firm to open up a small criminal defense law practice in Jackson-ville, Florida.

That firm soon added Henry Lee Adams, who would later become one of the first African American District Court judges in the United States, but that was a long way off. During the first few years this integrated law firm was not neces-sarily welcomed with open arms by the legal community.

“I had never really been involved in anything to do with the civil rights movement before that, but because Archie (Adams’ nick name) was black and he was my partner I experienced vicarious racism. We would get kicked out of everywhere we went because people here were racist and it pissed me off.”

Sheppard channeled that anger into the law. Civil rights and prisoner rights lawsuits followed. He would sue the governor, law enforcement officials, politicians, the department of correc-tions, attorneys general and anyone else who might have a hand in denying his clients their rights.

However, as he explains it, “civil rights lawsuits are expensive to litigate,” so in order to keep the lights on at the office he took on privately retained criminal defense cases. At the time drug cases were paying the bills. Interestingly, unlike most of us starting out, he did not take court appointments. As he explains it,

“When Archie joined the firm we went down to the courthouse and requested criminal court appoint-ments for indigent defense. Because of racial discrimination

we didn’t get one fucking case! So I said fuck ‘em, I’ll never accept a court appointment, ever. I don’t want to get paid by the govern-ment anyway. So to this day we don’t accept court appointments.”

Initially, some of the criminal defense clients who could afford Sheppard’s services were the people in the pornog-raphy business. Back then people had to go to public theaters to watch adult movies. The adult entertainment owners and their employees were making money hand over fist showing movies like Deep Throat. When they got busted they hired Sheppard to defend them.

They knew that as long as the case was pending they could keep showing the movies, so Sheppard would litigate. He recalls one obscenity trial where his client suggested they try to get an all-female jury. Sheppard was skeptical but he went with it. He brought a clear bag full of ticket stubs into the court-room and argued that these six women could not find his client guilty because they couldn’t tell thousands of people represented by the bag of tickets that what they chose to watch was obscene. His client was acquitted.

He got into death penalty work when Tobias Simon contacted him to assist in preventing John Spenkelink from being executed. The case was litigated against then Attorney General Bob Shevin who had in 1976 successfully argued for the return of capital punishment in Florida. As Sheppard puts it,

“Toby was a great lawyer. We called experts and put on all kinds of statistical evidence about how the death penalty was only imposed when a white person was murdered. We proved our case, but the judge ruled against us. Then Toby asked the judge to give us a certificate of appealability and he agreed. And that one piece of paper stopped Florida from killing him and others for a while.”

Spenkelink was eventually executed


MITCH STONE is board certified in criminal trial law. He focuses his practice on white collar criminal cases in federal and state courts. He is Secretary of FACDL. His law firm, Mitchell A. Stone, P.A. is located at 1830 Atlantic Blvd, Jacksonville, FL 32207. He can be contacted at 904/396-3335, [email protected] and on the web at www.jacksonvilledefense.com.

in 1979 . At the time Sheppard was quoted in multiple newspapers around the country for his erudite comment that, “Florida is a redneck state. We’ve ju s t go t smar te r rednecks here…” in response to the question about why Florida was the first state to figure out a way to bring back capital punishment.

Sheppard, then helped recruit lawyers to divide up all the pending death warrant cases. As he recalls, “That’s why I don’t have any friends left.” Sheppard took on Gary Alvord. He litigated that case for years and ultimately prevented the State from executing him. Alvord was known as the man who served on death row longer than any other inmate in Florida. In the end, Alvord died in

prison in 2013. He was convicted of m u rd e r i n g t h r e e women in 1973. Forty years on death row.

“But the State didn’t get to kill him. We made sure of that.”

Sh e p p a rd h a s had a storied career. He was involved in a prison farm reform case, Holt v. Sarver,1 tied to the movie Brubaker starring Robert Redford. He helped overturn a

grandparent visitation law that Slim Whitman had championed. He repre-sented African American firefighters who had experienced discrimination for decades. He argued and won at the United States Supreme Court in Doggett v US 2 providing the criminal defense bar with a due process constitutional right to speedy trial without proving actual

prejudice in cases where the government delays arresting the accused for years. He argued and won Campbell v. State3 to the Florida Supreme Court creating the blue print to challenge DUI road block cases. He was most recently part of the legal team in Florida championing the rights of homosexuals to marry.

And he hasn’t slowed down. When I sat down with him we were in a small conference room at his office. The table was littered with books, caselaw and other documents that he is studying, tape recorder in hand to dictate his thoughts, in preparation for the ensuing case he is filing to reform the bail system in Florida.

After 50 years of practice, and countless battles and victories, he has overcome health problems that cost him his signature long hair and beard, but Sheppard is still going strong. He may have started out as a conservative former military officer, banking lawyer, but to those of us who have had the pleasure of knowing him he is definitely who we are and more. Q

“I had never really been involved in anything to do with the civil rights movement before that,

but because Archie was black and he was my partner I experienced vicarious racism. We would

get kicked out of everywhere we went because people here were racist and it pissed me off.”

Bill Sheppard represented bankers in the early days of his law career before taking on the criminal justice system.


“[I]n appeals from a conditional no contest plea, the appellate court is bound by

a stipulation that a pre-plea ruling by the trial court is dispositive of the case.”

a listed chemical. Mr. Churchill’s trial counsel filed a motion in limine seeking to preclude the State from offering testimony or evidence about the identi-fication of the substances that were the basis for the charges. In the motion, Churchill argued that the law enforce-ment officer who tested the alleged methamphetamine with a presumptive field test kit failed to meet the Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), standard for admis-sibility. The substance was destroyed during testing, so the only potential evidence at trial would have been the officer’s testimony regarding the test and his opinion based on his experience and training.

Following a hearing, the trial court denied the motion. Thereafter, Mr. Churchill entered a plea of nolo contendere to all three of the charged offenses but specifically reserved his right to appeal the denial of his motion. Generally, a defendant may not appeal from a guilty or nolo contendere plea

by

Rocco J. Carbone III

In many criminal matters, whether evidence is admissible can decide the

outcome of the case. Winning or losing a pretrial motion can be the critical moment in determining whether counsel should advise a client to proceed to trial or enter a plea. Often, after the loss of a pretrial motion, a client will ask whether the trial court’s decision is appealable and, if so, the chance of success on appeal if a plea is entered. The difficulty advising a client with regard to the first part of this question — whether the issue is appealable — has recently become easier to answer based on the Florida Supreme Court’s decision in Churchill v. State, 219 So. 3d 14 (Fla. 2017).

In Churchill, the Florida Supreme Court considered whether an appellate

court has jurisdiction and must review a trial court’s ruling on a pretrial motion on the merits when it concludes that the motion was not dispositive of the case. The court concluded that the decision turns on whether the parties stipulated that the issue was, in fact, dispositive. This article explores the precedent that existed prior to the Florida Supreme Court’s decision in Churchill, outlines the reasoning behind the court’s unani-mous decision, provides practical advice for practitioners who must advise their clients whether to enter a plea, and discusses the trial judge’s responsibility to evaluate the dispositive nature of its pretrial rulings.

BACKGROUNDChurchill: The Trial Court and Fifth District Court of Appeal Proceedings

In Churchill, the State charged Mr. Churchill with one count of conspiracy to manufacture methamphetamine, one count of manufacturing methamphet-amine, and one count of possession of

Binding the Appellate Court


unless the defendant “expressly reserve[s] the right to appeal a prior dispositive order of the lower tribunal, identifying with particularity the point of law being reserved,” or as otherwise provided in Florida Rule of Appellate Procedure 9.140(b)(2)(A).

Prior to sentencing, Mr. Churchill’s trial counsel and the State signed a written plea agreement. The plea form specifically reflected that Mr. Churchill was entering his plea and “[r]eserving [his] right to appeal his Motion to Suppress [and] Motion in Limine and State agrees this would be dispositive.” During the plea colloquy, the State, Mr. Churchill, and the court unequivocally stated on the record that the motion was dispositive of the State’s charges against him. Mr. Churchill then entered an open plea and the trial court adjudi-cated him guilty on all three counts. The trial court ultimately sentenced Mr. Churchill to five years’ prison (count one) consecutive to a sentence he was already serving, fifteen years’ prison (count two) concurrent to count one, and seven years’ prison (count three) consecutively thereafter.

Mr. Churchill filed a timely notice of appeal and submitted briefs to the Fifth District Court of Appeal. However, the Fifth District declined to address the merits of the appeal, holding that it did not have jurisdiction because the denial of Mr. Churchill’s motion in limine was not dispositive. Churchill v. State, 169 So. 3d 1260 (Fla. 5th DCA 2015). Although the Fifth District acknowledged that the parties had stipulated that the trial court’s ruling was dispositive, it nevertheless determined that it was not bound to accept the stipulation. Id. at 1261 n.2 (citing Ashley v. State, 611 So. 2d 617, 618 (Fla. 2d DCA 1993)). The Fifth District reasoned, regardless of any stipulation, that “[a]n issue is legally dispositive only if, regardless of whether the appellate court affirms or reverses the lower court’s decision, there will be no trial of the case.” Id. (quoting Levine v. State, 788 So. 2d 379, 380 (Fla. 4th DCA 2001)). It concluded that the trial

court’s order was not dispositive and therefore held that Mr. Churchill could not challenge its ruling on direct appeal. Accordingly, the Fifth District dismissed Mr. Churchill’s appeal outright, and Churchill appealed to the Florida Supreme Court.

Following the Fifth District’s ruling, Mr. Churchill filed a pro se jurisdictional brief seeking to invoke the discretionary review of the Florida Supreme Court. He argued that the Fifth District’s decision was in direct and express conflict with the Third District’s en banc decision in Finney v. State, 420 So. 2d 639 (Fla. 3d DCA 1982). In Finney, the Third District held that an appellate court has jurisdiction to review a pretrial ruling based on the parties’ stipulation that the ruling was dispositive and that the court need not reach the issue of whether the ruling was actually disposi-tive. Id. at 642. The Florida Supreme Court accepted discretionary review to resolve the conflict. The acceptance itself was important, because it meant the Florida Supreme Court was going to resolve a question that had created a great deal of uncertainty since it originally authorized such pleas in its 1971 decision, State v. Ashby, 245 So. 2d 225 (Fla. 1971).

Ashby and its ProgenyIn Ashby, the Florida Supreme Court

held that a defendant in a criminal case may plead nolo contendere, conditioned on the right to preserve a question of law for appellate review. Id. The court reasoned there was no problem allowing this avenue of relief “since it expedites resolution of the controversy and narrows the issues to be resolved.” Id. at 228. Additionally, the Court noted that “[t]he practice is conceptually similar to that of stipulation of facts or law, not uncommon in civil and criminal trials.” Id.

The court subsequently narrowed Ashby in its 1979 decision, Brown v. State, 376 So. 2d 382, 384 (Fla. 1979), when it held that a “nolo plea is permis-sible only when the legal issue to be determined on appeal is dispositive of

the case.” In Brown, the court did not expressly define “dispositive,” deter-mining only that a confession was not necessarily dispositive of a case. Id. at 385 (“[W]e hold that as a matter of law a confession may not be considered dispositive of the case for purposes of an Ashby nolo plea.”). However, the court also noted, “By this holding we do not mean to imply that a confession could not be dispositive of a case for other purposes. We simply decide that the benefits derived from permitting the appeal of confession issues after an Ashby nolo plea are outweighed by the disadvantages militating against it.” Id. at 385 n. 5. The court did identify three types of pretrial rulings that it concluded were illustrative of dispositive legal issues: rulings on “[m]otions testing the sufficiency of the charging document, the constitutionality of a controlling statute, or the suppression of contraband for which a defendant is charged with possession.” Id. at 385.

Since the Florida Supreme Court articulated its rationale in Brown, whether a legal issue is dispositive has consistently been considered a juris-dictional question. See, e.g., Mylock v. State, 750 So. 2d 144, 146 (Fla. 1st DCA 2000) (recognizing that the parties stipulated to a dispositive issue and concluding that therefore “we have juris-diction.”). All of Florida’s district courts have interpreted Brown to hold that “[a]n issue is dispositive only if, regardless of whether the appellate court affirms or reverses the lower court’s decision, there will be no trial of the case.” Morgan v. State, 486 So. 2d 1356, 1357 (Fla. 1st DCA 1986); see also Jones v. State, 806 So. 2d 590, 592 (Fla. 5th DCA 2002).

Not long after Brown was decided, the First District considered Jackson v. State, 382 So. 2d 749 (Fla. 1st DCA 1980), aff ’d, 392 So. 2d 1324 (Fla. 1981). In Jackson, the parties had stipu-lated that a confession was dispositive, and the court had to determine whether it had authority to consider the appeal on the merits. The First District held:

[W]e do not consider [Brown] as precluding a stipulation, by the


State and the defendant, such as we have in the record here, in which both sides agree that the State has no case and would be unable to proceed with the prosecution without the confes-sion. Under these circumstances we concluded that the ruling on the admissibility of a confes-sion would be ‘dispositive of the appeal[.]’ Having so considered it, we reviewed the appeal on the merits[] and affirmed the ruling of the trial court.

Id. at 750. The Florida Supreme Court affirmed Jackson without an opinion. 392 So. 2d 1324 (Fla. 1981).

After affirming Jackson, the Florida Supreme Court did not explicitly resolve the question of whether party stipula-tions regarding the dispositive nature of a pretrial ruling could confer binding jurisdiction on the appellate court. However, the Third District addressed the issue en banc in Finney, creating the conflict the Florida Supreme Court was asked to resolve in Churchill.

In Finney, the Third District reached a conclusion very similar to the First District’s conclusion in Jackson — that stipulations do confer binding jurisdic-tion on appellate courts. 420 So. 2d at

642. In reaching its decision, the panel specifically reasoned:

Where a stipulation has been entered into by both sides, the court will not be called upon to hear testimony as to the dispositive nature of the evidence. A stipulation is the parties’ recognition that, for whatever reason, they have presented all of the evidence that they care to and each is willing to abide the appellate consequences regarding the grant or denial of the motion to suppress. Because this case falls squarely in line with Jackson…we must conclude that by virtue of the stipulation, the present motion to suppress is dispositive of the issue on appeal.

Id. In a special concurrence, Judge Pearson aptly noted the type of confusion that can arise when trying to determine what a trial court considers dispositive versus what an appellate court considers dispositive. Judge Pearson stated:

Today’s [en banc] decision should put an end to the unseemly spec-tacle of the State, having agreed through its representative at the trial level (the State Attorney) that a matter is dispositive, later arguing, through its representa-tive in the appellate court (the Attorney General) that the matter is not dispositive and that we are

without jurisdiction to hear the defendant’s appeal. This difference in position was never, in my view, attributable to an act of bad faith by the State. Instead, the differ-ence in position is accounted for by the difference between Jackson v. State, [382 So. 2d 749], and Brown v. State, [376 So. 2d 382]. Thus, when the State Attorney said “dispositive,” he was talking Jackson — that is, committing the State not to prosecute further in the event the defendant prevailed on appeal; when the Attorney General said “not dispositive,” he was talking Brown — that is, contending that even if the defen-dant prevailed on appeal, it was still legally possible for the State to continue with the prosecution. But what the Attorney General ignored is that where there is an agreement on dispositiveness, Brown’s “legal dispositiveness” is, by definition in Jackson, irrelevant. Jackson is a welcome retreat from Brown. The concern in Brown that the expeditious resolution of the controversy would be thwarted by permitting a defendant to appeal legally nondispositive pre-plea rulings is obviated where the parties agree that the appellate court’s decision will end the case one way or another. When they so agree, the defendant does not face the prospect of a trial if he prevails on appeal; the appellate decision concludes the matter, and the precious resources of the courts are saved by not forcing the defendant to go through a trial for the singular purpose of preserving an issue for review.

Id. at 643–44 (Pearson, J., specially concurring) (emphasis added) (footnotes omitted).

The Finney decision and line of reasoning was continued by the First District’s en banc decision in Zeigler v. State, 471 So. 2d 172, 175 (Fla. 1st DCA 1985). The court explained:


We focus first upon the fact…that this case is here by way of a joint stipulation between appellant and the state that the issue of the voluntariness of the confession absent the presence of counsel was in fact dispositive of the prosecu-tion’s case. This court has previ-ously held that such a stipulation is sufficient to establish the dispositive-ness of an issue concerning a confes-sion, even though such issue would otherwise be deemed not dispositive as a matter of law. Jackson v. State, 382 So. 2d 749 (Fla. 1st DCA 1980), aff ’d, 392 So. 2d 1324 (Fla. 1981). Therefore, unless this court is prepared to “go behind” the stipulation of the parties in an effort to ascertain whether the issue is truly dispositive, we would be bound to decide the issue reserved for review by the defendant, and thus would have no occasion for independent examination of the record to determine whether, even if the trial court erred in denial of the motion to suppress, other evidence in the record could be used equally as well to establish guilt.

Id. (emphasis added).

Shortly after deciding Zeigler, a separate First District panel reached a contrary decision in Morgan v. State, 486 So. 2d 1356 (Fla. 1st DCA 1986). In Morgan, the court concluded that a stipulation was not dispositive and that was not bound to exercise jurisdiction over the merits of the appeal. Id. at 1359. Although the First District determined the stipulated legal issue was not actually dispositive and that the appeal could be dismissed, it also held that the matter should be remanded to the trial court with a direction that “[i]f the defen-dant so moves, the trial court shall vacate and set aside the judgment and sentence and shall allow the defendant to withdraw his plea of nolo contendere and reinstate his not guilty plea.” Id. In an accompanying footnote, the court also remarked that “[f ]airness dictates

that the defendant should be given the opportunity to withdraw his plea of nolo contendere.” Id. at 1359 n.3. While the Morgan court did not go so far as to ultimately decide whether it was “bound to consider an appeal on the merits where the state ha[d] stipulated to dispositiveness,” the court noted that “[o]ne could certainly reasonably take the position that this pretermitted question has already been authoritatively answered by this Court in Ziegler.” Id. at 1358-59 n.2.

Almost immediately prior to the Florida Supreme Court accepting Churchill for review, Judge Makar of the First District authored a concurring opinion in Beermunder v. State, 191 So. 3d 1000 (Fla. 1st DCA 2016), outlining the First District’s jurisprudence on this issue. In his concurrence, Judge Makar reviewed and evaluated the line of cases following Zeigler and Morgan. Judge Makar concluded that between Zeigler (indicating that the stipulation controlled) and Morgan (allowing the appellate court to reject jurisdiction), Ziegler seemed to control more often and was the more appropriate line of authority to adopt. Id. at 1003. With this background, the majority position in Florida, prior to Churchill, appeared to be that “[t]he operative principle is that a stipulation of dispositiveness is sufficient to establish a basis for appellate review ‘even though such issue would otherwise be deemed not dispositive as a matter of law.’ The parties have agreed the case is over and that there will be no trial thereby establishing the finality necessary for review.” Id. at 1001-1002 (quoting Zeigler, 471 So. 2d 175). However, whether the appellate court was bound to accept the dispositive stipulation was still unclear.

Thus, pr ior to the Flor ida Supreme Court’s decision in Churchill, there were essentially three possible outcomes for a defendant seeking to appeal a pretrial motion after entering a plea: 1) the appellate court could conclude, as in Jackson, Ziegler, and

Finney, that a stipulation as to disposi-tiveness was binding and conferred jurisdiction; 2) the appellate court could conclude that the stipulation was not binding, but that fairness required that the defendant receive an opportunity to withdraw his or her plea if the issue was not dispositive, as in Morgan; or 3) the appellate court could conclude, as the Fifth District did in Churchill that the stipulation was not dispositive and dismiss the appeal without reaching the merits or allowing the defendant an opportunity to withdraw his plea. The first position centered on the parties, deferring to the parties’ and the trial court’s determination of dispositive-ness. The second position relied on the appellate court’s authority to ultimately review and reject stipulations of disposi-tiveness but allowed the defendant to withdraw his or her plea on remand. The third position focused on the appellate court’s authority to reject a stipulation altogether and to dismiss the appeal without considering the merits or allowing the defendant and opportunity to withdraw his or her plea. These diverse positions were before the Court when considering the merits of Churchill.

FLORIDA SUPREME COURT DECISION IN CHURCHILL

The Florida Supreme Court in Churchill unanimously held that, “in appeals from a conditional no contest plea, the appellate court is bound by a stipulation that a pre-plea ruling by the trial court is dispositive of the case.” 219 So. 3d at 14. The court stated that “[c]ontrary to the Fifth District’s decision in Churchill, the district courts have jurisdiction to review the merits of a conditional no contest plea when the State stipulates that an issue reserved for appeal is dispositive of the case.” Id. at 17 (citing Fla. R. App. P. 9.140(b)(2)(A)(i)). Relying on Jackson and Finney, the Florida Supreme Court held that there is no need “to determine whether a particular issue will end the case because the stipulation of dispositive-ness establishes that the State cannot or


will not continue with its prosecution if the defendant prevails on appeal.” Id. This is so because “the stipulation on its own ‘is sufficient to establish a basis for appellate review even though [an] issue would otherwise be deemed not dispositive as a matter of law.’ ” Id. (citing Beermunder, 191 So. 3d at 1001 (Makar, J., concurring)). The court concluded that “requiring stipulations to be binding will further the interests of judicial efficiency and expeditious resolution of controversies cited in Ashby and Brown.” Id.

The Florida Supreme Court’s holding hinged on the unequivocal stipulation between the parties. Specifically, the court stated, “[b]ecause the parties in this case clearly stipulated that the trial court’s ruling on Churchill’s motion in limine was dispositive of the case, the

Fifth District was bound to accept that stipulation and consider the merits of Churchill’s appeal.” Id. at 18.

PRACTICE POINTERSChurchill is an important case that

provides guidance for plea bargaining and demonstrates how a seemingly simple issue can become increasingly difficult and muddy over time. While the case resolves a split amongst the district courts of appeal, its limitations are important to recognize for both trial counsel and trial courts.

Trial CounselFrom a practical standpoint, this

case is limited to nolo contendere pleas where there is an unequivocal stipulation of dispositiveness. Trial counsel must first ensure that a client

wanting to enter a plea and reserve his or her right to appeal does so by entering a nolo contendere plea rather than by pleading guilty. See Ashby, 245 So.2d at 228 (observing that “[t]here appear[ed] to be no policy weighing against acceptance of pleas of nolo contendere reserving questions of law, [but that a] different result would obtain if the plea was one of guilty rather than nolo contendere”). Trial counsel should specifically cite Florida Rule of Appellate Procedure, 9.140(b)(2)(A)(i), which authorizes this type of appeal. Second, trial counsel must ensure that the parties and the trial judge approve the stipulation and clearly identify the scope of the issue to be raised on appeal on the record to ensure preservation. See, e.g., Aybar v. State, 207 So. 3d 340, 341 (Fla. 3d DCA 2016) (concluding that the court lacked jurisdiction and dismissing the appeal because “[t]he record [did] not reflect a written order by the trial court finding that the suppression ruling would be dispositive, nor [was] there a stipulation in the record that the ruling would be dispositive”).

Significantly, Churchill does not directly impact cases where there is a dispute over whether an issue is dispositive. Without a stipulation, the appellate court will likely dismiss the subsequent appeal. See, e.g., Aybar, 207 So. 3d at 341; Daniel v. State, No. 2D16-535 (Fla. 2d DCA Dec. 27, 2017). Trial counsel should also take note that misadvising a client that a legal issue is dispositive may be a cognizable postconviction claim for ineffective assistance of counsel. See, e.g., Anderson v. State, 183 So. 3d 1146, 1148 (Fla. 5th DCA 2015) (“A claim that a defendant was induced to enter a plea upon counsel’s erroneous advice that an issue was preserved for appeal is facially sufficient to show the requisite prejudice.”). When advising clients about taking a plea, trial counsel should carefully consider all of these issues.

Trial JudgesAlthough not expressly discussed

“On reflection, Frankie, maybe we shouldn’t have waived closing argument.”


attempts at adding observations can be attacked.

The same strategies on the style of your questions should carry over to phone interviews, recorded or not. Although I’m not a fan of an un-recorded interview, sometimes it’s all you have. Get your investigator or someone in your office to sit in and notify the witness of their presence. Use a good strong cross whenever appropriate.

SUPPRESSION HEARINGSYou can now begin to incorporate

some of the more formal rules of cross here. Rules like “primacy and recency” become more important. This is where you want to start off your cross with a major point and end it with one as well. Also, by now you should know from your depo or the formal review hearing the answers to all the important questions, so no more asking questions for the first time.

At times it’s tempting to show the judge how great your cross-examination skills are and how weak the state’s case is. However, the suppression hearing cross should be narrow. Show some restraint here. Don’t give the witness a chance to practice for trial by asking them questions not pertinent to your motion. Save the subject matter that will impress the jury for the jury.

CONCLUSIONCross-examination isn’t exactly like

learning how to ride a bike. Sure, the main lines of questions in DUI cases may stay with you, but your delivery and they way you craft the questions need constant attention and preparation. No two DUI cases are the same, and neither are the witnesses. They call it “practicing” law for a reason. Now go practice. Q

1 Terrence MacCarthy, MacCarthy on Cross-Examination (2007)

2 Their stats, not mine! These statistics were published by DHSMV in a training manual offered to law enforcement officers, “Admin-istrative Suspensions 2016, DHSMV, Bureau of Administrative Reviews, Michael G. Blain, CHO, RPS.”

in Churchill, one important consid-eration concerning the acceptance of these stipulations is the role of the trial judge. A primary argument set forth in the State’s briefing dealt with the parties stipulating to nondispositive issues that have little to do with the merits of the case and, therefore, waste judicial resources. In response, Mr. Churchill pointed to the line of cases explaining that the trial judge is the gate-keeper for evaluating these stipulations.

As the court noted in Brown, the trial court has “wide discretion to accept or reject an Ashby nolo plea based upon his [or her] perception of the dispositive nature Vel non of the legal issue reserved for appeal.” 376 So. 2d at 385. Prior to Churchill, several appellate courts affirmatively placed the determination of whether an issue was dispositive on the trial courts because the “the trial court is obligated to determine the dispositive nature of the reserved question.” Everett v. State, 535 So. 2d 667, 669 (Fla. 2d DCA 1988); see also Holden v. State, 90 So. 3d 902, 903 (Fla. 1st DCA 2012); Diaz v. State, 34 So. 3d 797, 801 (Fla. 4th DCA 2010). The Second District held that “[i]t is the trial court’s dutyto announce whether preserved issues are dispositive.” Ramsey v. State, 766 So. 2d 397, 397 n.1 (Fla. 2d DCA 2000) (emphasis added); see also Moore v. State, 586 So. 2d 64,64 (Fla. 2d DCA 1991) (“[T]he trial court is obligated to determine whether the issue reserved for appeal is dispositive.”). Relying on this line of cases, Mr. Churchill argued that the “duty” and “obligation” to determine whether a preserved issue is dispositive should be the province of the trial court because resolution by the trial court would correctly inform a defendant regarding the availability of appellate relief and thus reduce the

ROCCO J. CARBONE, III, is a member of the Appellate Section Pro Bono Committee and was appointed by the Florida Supreme Court to represent Mr. Churchill. His practice focuses on civil and criminal appeals and trial support. He is licensed to practice in Florida, Georgia and New Jersey. He is also an officer in the Air Force JAG Corps. Any opinions offered in this article are purely his own. He can be reached at [email protected].

likelihood that the defendant would seek a meritless appeal. Additionally, evaluating the issue at the trial court level “insure[s] a timely opportunity for the defendant to evaluate withdrawal from the plea agreement.” Everett, 535 So. 2d at 669.

Importantly, while Churchill holds that an appellate court may not go behind a stipulation of the parties, it does not preclude appellate review of trial court’s ruling on a dispositive-ness when that issue is in dispute. See, e.g., Jones, 806 So. 2d at 592 (Fla. 5th DCA 2002) (affirming the trial court’s determination that the denial of the defendant’s motion to suppress was not dispositive). There-fore, it is critically important that a trial court make findings on the record and clearly resolve the issue of dispositiveness before accepting a plea to facilitate appellate review. See id. (noting with approval the trial court’s “detailed explanation regarding the right to appeal a dispositive motion…and that [the defendant’s] motion was not dispositive”). As such, the role of the trial judge cannot be forgotten or understated.

CONCLUSIONIn conclusion, addressing the issue

of dispositiveness on the record and before entering a plea will protect the attorney, the client’s appeal, and the trial judge. If a client wants to appeal, trial counsel must make sure the legal issue and its dispositive nature is clear on the record. The trial court judge must articulate on the record that the issue is dispositive. If all the parties are adequately informed and take care to properly preserve the pretrial issue, the defendant’s appeal will be heard on the merits and all parties will be protected. Q

DUI NOTES • from page 15


Seth MillerHow to Start, Become

and Run a State Innocence Project

by

Hal Schuhmacher

By sheer luck and my proximity to the panties that would lead to

the exoneration of the sixth person in Florida, I have been able to witness the relentless work of the Innocence Project of Florida and the tireless efforts of their leader. Having started our Keys (Monroe County) Chapter of FACDL and been on the Board of Directors a few years before the passage of the most misguided law that ever passed (the 2001 law that put a two-year timeline on proving actual innocence and, thereby, forever would have allowed the actual perpetrator to evade justice), my experience with FACDL has been strongly influenced by the noble work of the Project. As a result, I sat down with our friend Seth Miller to ask

him about himself and the Innocence Project of Florida.

What is you official title?I am the Executive Director of the

Innocence Project of Florida.

Can you tell us a little about your back-ground?

I grew up in the northen suburbs of Philadelphia. I obtained my bachelor’s degree at Penn State University and my law degree at Florida State University College of Law. Initially I was a staff attorney at the First District Court of Appeal where I primarily worked on postconviction appeals. I then moved to Washington, D.C., to be a project attorney forthe ABA Death Penalty Moratorium Implementation Project where I researched and wrote a number of comprehensive reports assessing death penalty systems in the States. I joined the Innocence Project of Florida as a staff attorney in 2006 and became the Executive Director in 2007.

What motivated or inspired you to do what you do?

I was lucky to be exposed to justice work early in law school when our Project (which was initially called the Florida Innocence Initiative) was started and I was the Project’s first Student Fellow. I studied social movements in college and took part in a few protest movements to improve conditions for minority students on Penn State’s lily-white campus. So, it was natural that I would be drawn to working on behalf of indigent people caught up in our criminal justice system as they are some of the most marginalized people in our society.

Can you tell us how the Innocence Project of Florida began?

In 2001 Florida passed a postconvic-tion DNA law that included a two-year deadline for the filing of all cases that predated the enactment of the law. Our Project was created in 2003 as a response to the deadline and the crisis

W H O A R E W E ?


“Our clients are“

the forgotten and

”marginalized.”SETH MILLER

it created for hundreds of individuals with viable DNA testing claims who could not help them in filing their claim before the expiration of the arbitrary deadline. Working in conjunction with the Innocence Project in New York, we reviewed hundreds of cases and ended up working with pro bono partners to file on behalf of roughly 40 clients. In order to allow for them to file on their own and still be within the deadline, we also sent prose packets to the remaining claimants. Some of those initial 40 that we helped became some of Florida’s earliest exonerees. The Project has since grown from two staff members to a staff of eight and we have expanded our services to a statewide public interest law, social services component, and a public policy mission. In 2013 we also expanded beyond only accepting DNA testing cases to taking cases where innocence could be proven without the use of DN Atesting.

What is the formal structure of Innocence Project of Florida?

We have two lawyers, a social worker, a two-person case intake staff, an investi-gator, an office manger, and a fundraising assistant.

Where are you located?Although we regularly partner with

local Counsel (many of whom are FACDL members), we are based in Tallahassee.

Can you describe the process for a person to obtain the assistance of theInnocen-ceProject of Florida?

We receive about 1,100 new written requests for assistance each year(mostly from inmates or their family members). We also learn of cases from media accounts, appellate opinions, as well as lawyer referrals. We put the cases we receive through a sometimes long and rigorous vetting process. This process consists of gathering information through a comprehensive questionnaire and obtaining case materials (such as trial

transcripts, lab/medical files, prosecutor/defense files, and law enforcement records). Our intake staff and student assistants produce comprehensive cases memorandums that detail the facts, procedural history, issues in each case, and possible investigative avenues. Once we have a sufficient amount of informa-tion for us to make a case-acceptance decision, our legal team makes a decision by consensus at a biweekly meeting. We generally accept 10-12 new cases each year and either obtain postconvic-tion DNA testing or file a motion for postconviction relief based on legal claims that are predicated on some kind of evidence indicating innocence that was previously unavailable to the jury. This includes cases where evidence proves that a crime happened but someone else committed it as well as advancements in understanding of the science or medicine demonstrate that it isl ikely that a crime did not happen at all (child abuse, arson, complicated medical diagnosis cases, etc.).

We currently have about 30 cases and we have litigated in approximately half of the counties in Florida.

What can we as individuals or FACDL as an organization do to assist the Innocence Project of Florida?

Members of FACDL have tradition-ally been integral to our efforts. We have partnered with a number of FACDL members as local counsel in cases including Derek Byrd, David Rothman, Michael Ufferman, HalSchuhmacher, George Tragos, and others. We value the opportunity to work with experienced dedicated criminal defense attorneys who know the prosecutors and judges in the local communities where we litigate. Such opportunities exist in every one of ourcases.

Many members of FACDL, most

notably the members on our Board of Directors and others, like Nellie King, have taken lead roles in putting on events in their communities that focus on awareness of issues related to wrongful convictions and also on devel-oping financial resources to support the work of the Project. FACDL members, too numerous to mention, have also been consistent financial supporters

and sponsors of our events over the years. This much needed assistance has also come from FACDL itself as well as its local Chapters. The events and assis-tance is a vital way for us to continue

to partner with new members and meet new people in various communities who may share the justice-minded goals of the Project.

Would you share any parting thoughts regarding what you do and the goals to which you have obviously dedicated yourself to?

I view myself as a criminal defense lawyer first. How I choose to define the parameters of the cases I take is secondary to the fact that I see myself and my legal team as part of a broader criminal defens ecommunity and, more specifically, a vital part of the broader work to give high quality legal assistance to the poorest members of our communities. Our clients are the forgotten and marginalized. Many are where they find themselves because of racial bias throughout society and within the criminal justice system. Despite the fact that society has branded them as monsters, these people deserve to be treated with humanity, dignity, and equality. If I, my team, and our partners in FACDL can do our part to even the playing field and bring them justice, our work will have meant something positive both on an individual as well as a societallevel. Q

HAL SCHUHMACHER is FACDL Vice President and Editor of The Defender. He maintains law offices in Key West and Marathon.



reviewed by

Teri Sopp

Killers of the Flower Moon is a book that will have you cheering for the

law enforcement officers and for the prosecution — at least the final iteration of law enforcement officers and prosecu-tors — the ones not rife with corruption, bribery and homicide.

In the early 1870s, the Osage Indian tribe was driven from their lands in Kansas on to a “rocky, presumably worthless reservation in Northeastern Oklahoma.” Amazingly, sometime later, this land revealed one of the largest oil deposits in the United States. The Osage, of course, had inhabited the central plains, but with the Louisiana Purchase in 1803, their fate was sealed. Despite Thomas Jefferson having lauded the tribe as a “great nation” and claiming the warriors were “the finest men we have ever seen,” the Osage were compelled to relin-quish their territory between the Arkansas River and the Mississippi River within just four short years after the purchase.

Over the next two decades, the Osage were forced to cede nearly 100 million acres of their ancestral land to the United States government, ultimately

purchasing land in what would soon be the northeastern part of the State of Oklahoma and relocated their tribe. Through a complicated system of land allotments, and intense negotiation with the Bureau of Indiana Affairs, each member of the Osage Tribe ended up with an allotment of 657 acres and the rights to the” oil, gas, coal or other minerals covered by the land….”

T h e a g r e e m e n t p r o v i d e d each member of the Osage tribe a “headright” — a share in the tribe’s mineral trust. The tribe had shrewdly set the trust up to remain under tribal control so that no one could buy or sell the headrights — they could only be inherited. Tribe members became quite wealthy, building beautiful mansions, owning up to the latest automobiles and current fashions. Tribe members employed servants and lived quite well–often to the enmity of many whites around them.

Trouble followed the organization of the oil trust, trouble followed. Members of the tribe began dying mysteriously; some were slowly poisoned, some were murdered outright. Not only were tribe members killed; two men who sough to help the tribe by seeking support in Washington were also murdered.

Local authorities seemed at a dead end on the investigation, but by the time twenty four tribe members had been killed, national law enforcement

agencies took note. The young J. Edgar Hoover, eager to prove the mettle of the relatively new FBI, assigned Tom White, a straight-arrow, white-hat wearing former Texas Ranger to the job. White took the job seriously, eventually uncov-ering a complex conspiracy among local ranchers, doctors and so-called pillars of the community to kill the Osage in order to inherit their mineral rights.

Author David Grann, a staff writer at the New Yorker, meticulously researched thousands of pages of FBI files, secret grand jury testimony, court transcripts, informants’ statements, private detec-tives’ notes, pardon and parole records,

FACDL BOOKSHELF

KILLERS OF THE FLOWER MOONThe Osage Murders and the Birth of the FBI

by David Grann Penguin Random House, 2017 400 pages

TERI SOPP is a Board Certified Criminal Trial Attorney who practices in Northeast Florida. She formerly served on the FACDL Board of Directors.

SEE PAGE 37


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CO U R S E M AT E R I A L S N OW AVA I L A B L E


by

Bruce Denson

Writing is most persuasive when the reader is blind to the techniques

employed. “[T]he perfection of art consists in concealing art.”1 That is to say, the best writing is most convincing when we see only the ideas and not the style or methods employed.

The same can be said about oral argument and presenting your case to a jury or judge. The best lawyers can

change your mind and you are not even aware of how they did it. Since much of our communication is nonverbal, it is important to determine what attorneys can do to be more persuasive before we even open our mouths.

As lawyers we want to persuade our audience, be it a judge, jury or client. I believe, and science bears out, that a better-dressed lawyer is a more persua-sive lawyer.2 So, building on the rules of persuasive writing we are familiar with, I have constructed some rules for dress lawyers can use to improve their nonverbal communication.

Learn the rules. Before law school, in grade school, we learn proper grammar

and punctuation are essential to good communication. Run on sentences, lack of agreement between subject and verb, and poorly placed commas lessen your credibility. Likewise, dressing ”outside” the rules negatively affects your position. Learn the rules of proper dress and work within them. Coordinate your belt with your shoes. Wear socks to court. Always tuck in your dress shirts. Like the rules of language, there are rules to dressing that should be followed.3

Be a lawyer who clarifies issues and not a lawyer who confuses. We learn as a 1L every sentence should be clear. Communicating with clarity builds trust. Judges and juries will trust you, and decide in your favor, when you communicate in a clear fashion. Like sharp writing, your dress should also clearly and immediately convey that you are a person that is serious and believable. Clothing should not distract from your message.

Simplify. No one should have to read a sentence twice to understand your point. Simplify your syntax. The same goes with your dress. No one should have to look at you twice to know what you are about. And the reality is they won’t anyway. The human brain is going to make this calculation amazingly fast. So be ready to be judged on appearance, we are hardwired to make this judgment. Make that impression a good one. Make it easy on the judge or jury to know at a glance you are in charge of the facts and you know the law. Make your statement by understatement.

Word choice. Don’t distract from your writing with the unnecessary. Avoid sesquipedality4 and be precise with your choice of words. Choose your clothing intentionally. As Douglas Hand states in The Laws of Style, “[t]he right tie can change your whole look just like a different conjunction (“and” or “or”) can change an entire written agreement.” In your professional presentation select your clothing, jewelry, haircut and makeup deliberately.

Don’t be redundant. We’ve all read briefs or appeals that make the same points over and over and know how

F R O M

B R I E F ST O

S U I T SDress Like You Write


painful and inefficient that can be. Make a strong point and move on. Readers want to engage with fresh content. When it comes to dress, do the same. There is a value in traditional, professional style and you should avoid following fashion. But you do not want an outdated style to detract from your message. Thomas Jefferson may have said it best: “In matters of style, swim with the current; in matters of principal, stand like a rock.” Professional dress is current without being trendy and traditional without being dated.

Do your research. Be serious about how you present yourself at the office and courthouse. Maybe look at a book on the subject like Lawyer Up! (sorry for the shameless self promotion) or The Laws of Style by Douglas Hand. And don’t be afraid to get some expert help from a local clothier. Attorneys use experts to present their case all the time, why not for this as well?

Lead with your strength. As you learned in law school, start your briefs with your best points out front. You know how to be precise in how you arrange your arguments in briefs and motions. Think how much time you spend framing the question presented. Pick clothing that does the same. Pick cuts and colors that flatter your body type. Get your clothing tailored to fit correctly. And don’t underestimate the impact shoes have on first impressions!

Find a style mentor. Lawyers learn good writing from studying the opinions and briefs of respected judges and lawyers. We all know who the local attor-neys are that have cultivated a profes-sional reputation. Take note of what they are wearing and what makes them stand out to you. Take a look at how lawyers you respect dress and present themselves and copy them. There is a controlling precedent.

Edit. Writers know the first draft is usually not very good. Great writing happens in the editing. Enhancing your nonverbal communication skills does

not come easy. It is not intuitive for most lawyers. There are some ingrained bad habits that may be hard to break. But nonverbal communication skills can be improved with attention and effort. Cull a few bad or dated articles from your wardrobe and thoughtfully add some new pieces.

Develop your own style. There is plenty of room within the rules to develop your own style. We do not expect everyone to write or look the same. Your personal style can enhance your persuasiveness, and should not distract from it. Be traditional. Be contemporary. Be comfortable. And do great work.

BRUCE DENSON is a sole practitioner in St Petersburg, Florida. He was admitted to practice in 1994 and handles cases throughout Tampa Bay. He is a Life Member of FACDL. He is the author of Lawyer Up! available on Amazon.

When your goal is to persuade, you must ignite passion. Style can be a spark. Attention to stylistic details is required to give impact to speaking and writing. Without an appeal to the listener or the reader, attention will drift. Maybe more importantly, well-presented ideas are more readily believed and retained. Style matters in word and dress. How you dress for court and the office is essential for that presentation and is worth your time and effort to improve. Q

1 George Campbell, Philosophy of Rhetoric,1816.2 For the science behind this position see Bruce

Denson, Lawyer Up!, 2017.3 For men reading this article I highly recom-

mend Douglas Hand, The Laws of Style, 2018.4 The use of long words.

“I realize you’re new but next time I ask you to file a suit, I mean at the courthouse!”


by

Jason Kaufman

The traditional approach taken by most trial attorneys when conducting

Voir Dire is the lecturer/ listener method. The goal is to educate and lead the jury to the lecturer’s wayof thinking. During this type of Voir Dire, 90 percent or more of the talking is done by the attorney from a well-rehearsed speech usually followed by closed and leading questions.

These questions are designed to condition the jury to acquiesce to the authority of what the law is asking them to do, which as criminal defense attorneys is essential in leveling the playing field.

The theory to this approach is that the pool of potential jurors are “blank slates” when it comes to the law and that they need to be taught through simplistic repetition what their responsibilities are.

However, human beings are anything but “blank slates” when they walk into the courtroom. They come in with longstanding fixed opinions that alter the way they perceive the evidence presented.

They simply cannot unlearn these opinions no matter how much pressure is put upon them. In fact the more perceived pressure that it is put upon them, the stronger they defend them. It’s because of this, that conditioning does not work. Hopefully,this article will provide a more efficient use of this time and better approach moving forward.

BEHAVIORAL CONDITIONINGIn psychology, conditioning is a

behavioral process whereby a response becomes more predictable as a result of either positive or negative reinforce-ment. This is based on the work of Russian physiologist Ivan Pavlov who would repeatedly reward or punish his dogs while ringing a bell in a certain way. Based upon the way the bells were rung, the dogs would either salivate in anticipation for a reward or cower in fear anticipating a punishment. After repeti-tion, the dogs would react only to the ringing of the bells without the treat or reward. This is known as a conditioned response or an unconscious association with a positive or negative experience.

Human beings can be conditioned the same way. For example, movie theaters have unconsciously created an expectation that when you go see a movie that you have to have movie theater popcorn. They do this because it is extremely profitable and they have no other way to make money without accounting for profits from overpriced cheap concessions. They do not make money selling movie tickets. These

purchased tickets usually just pay the studios for the honor of showing popular movies in their theater.

So they condition the customer by funneling you first past the concession stand where the popcorn is front and center so you can see, smell and hear every kernel popping before you sit down for your movie. Every movie theater is designed and built in this fashion so that you unconsciously associate the positive experience of seeing that new movie with overpriced movie theater popcorn.

WHY CONDITIONING DOES NOT WORK

While human beings are susceptible to conditioned responses, jury trials are a much bigger investment for a person to make with their mental energy than overpaying for a bag of popcorn.

Imagine for a moment, that you were placed in front of a group of strangers and you had to express your feelings about someone you work with everyday. You know exactly how you feel about this person but not knowing whom these

P I C K I N G A J U R Y Listening with a Purpose


strangers are, it would be completely natural to be apprehensive about sharing your true feelings about that individual until you had more information about your questioners and their motives.

A jury trial goes much deeper to the very essence of who a person believes they are; it forces them to reveal and confront their own moral values and belief systems and then forces them to expose these beliefs to a group of strangers. These moral values are ingrained deep in the human mind and are usually as fixed as roots on a tree.

A trial is a battle for how we as a collective group feel we should handle certain offenses against our society and jurors take this respon-sibility very seriously. The problem, however, is that not everyone shares the same views on how society should handle every crime committed or even if they are crimes at all.

As social animals, we form these beliefs and values in early childhood that we have learned from the first tribe we ever associated with, our family. This means that unlike a person walking into a movie theater like a “blank slate” open and excited about the new experience, a person walking into the courtroom as a potential juror, come in more tepid and apprehensive; fearful that they will have to defend their entire belief system to a group of potential enemies of theirsocial group. In other words, their shields are up.

TRIBES AND THEIR VALUESAs a whole, jurors are just like all

other human beings. They are very tribal and have difficulty understanding and accepting any tribal value other than their own. There is also a feeling of comfort and safety within your own tribe no matter how dysfunctional that tribe may be. Around other members of a person’s tribe, the group’s tribal values are shared freely, openly and honestly. Outside of the tribe though, sharing tribal values is stressful and can even be dangerous. These tribal values strengthen

and binds the members of the group together, while at the same time blinds them to outside perspectives.

As stated in previous articles, human beings are on top of the food chain due to the fact that we are so well connected socially. But because of our place as the most dominant species on the planet, the biggest threat facing us today are ourselves. This means that if one group is forced into an environment with another group that outnumbers them, not only are the members of that smaller group uncomfortable and powerless but they

are also vulnerable to annihilation due to their lack of numbers. When faced with this, our animal instincts unconsciously kick in and floods the body with uncom-fortable feelings that forces the person to recognize this perceived potentialdanger.

That being said, think of jury selec-tion for what it is: the bringing together of a group of strangers, in a strange environment, where they have to share their tribal values with a foreign group of people that could be either friends or enemies of their tribe. As a trial attorney you can either enhance this fear by isolating people further, or create a safe environment for people to openly share their tribal values and life experiences. If this environment is not created, this will result in either socially acceptable answers or worse, resentment from the very people that will be making the ultimate decision on your case. Either way we do not accomplish the ultimate goal of jury selection.

ULTIMATE GOAL IS TO FIND PEOPLE YOU CAN INFLUENCE

The ultimate goal of jury selection is to “discover” information from complete strangers in order to draft the right group

of decision makers for your case. The goal is not to change a person’s beliefs or force them to think a certain way, the goal is to have an educated idea about how they will perceive the evidence in the present case and how thy will interact with others during deliberations when no one is watching.

You also need to discover if person is capable of being influenced by your theory of the case. This is where tribal values come into play. On a jury panel, there are too many individuals to know every personal viewpoint are on issues

of your case. However, if these individuals are grouped by tribe, it is easier to profile based on looking for popular tribal values rather than focusing on the individual. This is how scientific polling works. It takes a small sample size of a population using the tribal values of the identifiable

groups in the area. They use this infor-mation, to predict opinions on a topic for an entire region without having to speak with every individual.

The larger the tribe the more simplistic the tribal values are that their members identify with. The simplicity is needed in order for larger groups of people to share and endorse. According to Social Psychologist Jonathan Haidt, a self proclaimed moral psychologist, that based upon his questionnaires, he can identify whether Republican or Democratic party. He has identified six universal moral founda-tions that are shared differently by both major political parties.1

As a trial attorney, just this informa-tion alone is extremely useful as both political parties view certain aspects of our criminal justice system differently. For example, Democrats as a whole, based on these universal moral founda-tions, are less likely to convict someone accused of a crime than a Republican when it comes to issues like possession of drugs and death penalty cases. Whereas Republicans are more preferable for defense attorneys in cases involving animal cruelty cases or gun offenses

A jury trial forces jurors to reveal and

confront their own moral values and belief

systems and then forces them to expose

these beliefs to a group of strangers.


where self defense is at issue.

A NEW APPROACHHowever, in order to learn this

crucial information from jurors, a new approach must be taken to get them to lower their shields. This requires the trial attorney to give up some of their status in the moment and acknowledge a temporary depen-dence on the panel to complete the task at hand; finding a jury of the defendant’s peers. Mainly though, discovering those already predisposed to either be helpful or harmful for their case.

One way to do this, is to talk less and listen more. 90 percent of the time allocated should be spent listening. The other 10 percent should be used to establish a safe trusting and open relationship with the group and asking the right questions.

The best way to establish a safe and open dialogue with the group is to focus initial statements on building a relationship before asking questions about the task at hand. This can be done by stating personal feelings about tribal values that conflict with each and have a direct correlation with the case athand.

For example, on an issue like gun control and self defense:

“Guns are something I am conflicted by. I don’t own a firearm but at times I feel like I’m not doing everything I can to protect my children if a dangerous situation arises. However, I also feel that more firearms are not always the solution to stopping gun violence. Does anyone else feel the same way?”

By sharing these two personal viewpoints to a jury allows for them

to express their beliefs on the subject in a safe non-judgmental way no matter what tribe they belong to.

A famous trial attorney uses this in his Voir Dire examinations and bases it on the principle of Reciprocity. He likens it to the game we played as children of “I’ll show you mine if you show me yours.”2

Once a relationship has been estab-lished, asking the right questions, as any trial attorney knows is both a skill and art when trying to draw informa-tion out of someone. Questions should be designed to allow for explanation especially from those jurors you are unsure of or suspect are bad for the case. These questions should come from a

JASON KAUFMAN has been practicing criminal law exclusively since 2005 and is currently the President of the Broward Association of Criminal Defense Lawyers. He received his bachelor’s degree in journalism from the University of Florida in 2000 and worked as a photo-journalist, radio producer and an elementary school teacher for children with special needs before going to law school. While obtaining his Juris Doctorate from Nova Southeastern University, he was a member of the American Association of Trial Lawyers and was in the Pro Bono Honors Program. Since graduating, he has practiced solely in the area of criminal law and has amassed over 70 jury trials handling cases ranging from simple misdemeanors all the way up to first degree murder. He started his career at the Broward County Public Defender’s Office.

place of non-judgment and curiosity.Unlike in cross-examination, this is a

situation where you cannot be afraid of the answers you will elicit. Treat any new information as a gift that you did not have before and accept whatever road they lead you down.

Remember what questions we ask, how we ask them, where we ask them and when we ask them, all matter. The more attention we pay to these details the more information we can elicit from the panel; and in jury selection knowledge is power. Q

1 Jonathan Haidt, The Righteous Mind: Why Good People are Divided by Politics and Religion. New York, Pantheon. (2012). See generally.

2 Gerry Spence, Seven Steps to Voir Dire. Video format. Wyoming (1995).

“I realize you’re new but next time I ask you to file a suit, I mean at the courthouse!.”


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Your AssociationWorking for You!

FACDL STRIKE FORCE

Zealous advocacy of unpop-

ular clients or causes can

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BOOK REVIEW • from page 28

A TIME AND A PLACE

DENIS M. de VLAMING, a Board Certified criminal defense attorney in Clearwater, has practiced criminal law exclusively since 1972. He has been on FACDL’s Board of Direc-tors since its inception in 1988 and is a Charter Member of the organization. He is a past president of FACDL.

I know that this column is going to be controversial. But after all, we deal with controversy on a daily basis.

It all started when I went to visit my mother in a nursing home. She is turning 103. She is in a wheelchair, as are all others on her floor. Occasionally, the nursing home brings in entertainment for the residents. The other day I went to visit her and there was a man there who was singing all Elvis songs. I am not sure that everyone in the room was able to hear him but it did not matter. They were being entertained. The last song that he sang was “The Star Spangled Banner.” As I looked around the room filled with wheelchairs I noticed that there was a man, approaching his 90s, who was visiting his wife. She was in a wheelchair, he was not. As the song started, the old man struggled to his feet, stood as straight as he could with shoulders back and put his right hand over his heart.

If I told you that my eyes were not misty, I would be lying. I watched him singing along with the song as I stood up in respect as well. When the song ended, he used the arms of the chair for guidance and slowly sat down.

I fully understand our democracy. I know that each and every day we as defense lawyers fight for the constitutional rights that are provided to all citizens. I am also grateful for the ability of everyone to speak freely and protest injustices that are both shared and not shared by others. When an athlete “takes a knee” in protest, that is a right that he is exercising. It is a cherished right that even our military would say they are fighting for. I understand the concept.

But watching that old man proudly stand in a gesture of love for his country was moving, to say the least. There is a time and need for protest. But there is also a place for protest as well. I see nothing contradictory in a person’s right to protest but in doing so chooses an appropriate place to do it. To hold differently would be to dishonor that old man, standing as straight as he could, with his right hand over his heart. Q

FROM THE

PITS

by

Denis M.de Vlaming

crime scene photographs, congressional records, justice department memos, telegrams and many other sources. Grann’s investigation uncovers the vicious conspiracy designed to deprive the Osage of their inherited oil rights — a conspiracy which resulted not only in the murders of many tribe members, but of many of their ardent supporters as well.

Grann’s narrative is entirely readable and quite interesting. Killers of the

Flower Moon reads like a thriller novel; not one person is entirely who they represent themselves to be and the links in the chain of murders come as quite a surprise. It saddens one to believe that so much horror went on before a “crusading” FBI agent actually got to the bottom of the entire sordid affair. Grann reports the investigation and trials with great scholarship, but this book reads like a well crafted work of detective fiction. Q


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Elliott Wilcox

Stasha Wiliston

John L. Wilkins

C. Michael Williams

Jason D. Winn


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CLE This seminar is approved by The Florida Barfor 10 hours CLE credit,

with 1 hour ethics and 10 towards certification.

COURSE MATERIALS FOR CLE CREDIT: l FACDL Members or Public Defenders $294.63 l Non-FACDL Members $324.63

Course material price includes all course materials, audio files of speaker presentations and information for posting Continuing Legal Education Credit online with The Florida Bar.

All materials delivered via Dropbox or made available on the FACDL website for members.



TOPICS INCLUDE:

REPRESENTING INDIGENT DEFENDANTS AND THE JAC PROCESS

Rip Colvin, JAC Executive Director & Chris Martinez, JAC General Counsel

“PAY ATTENTION TO THE MAN BEHIND THE CURTAIN”

OR THE RISKS OF ONLINE SEX CONVERSATIONS

David Fussell, Former FACDL President

OPENING STATEMENTS Donnie Murrell,

Former FACDL President

DIRECT EXAMINATION: THE ART OF “WHAT HAPPENED

NEXT?”Jason Blank,

FACDL At-large Board Member

NAVIGATING THE JUVENILE JUSTICE SYSTEM

Brian Berkowitz, General Counsel, Florida DJJ

JUST GRAB A RECORDER AND GO ASK QUESTIONS OR . . .

NOT THE WAY TO TAKE A DEPOSITION

Larry Turner, Former Circuit Judge &

Former FACDL President & Ron Kozlowski,

FACDL Board Member

U.S. SUPREME COURT CASE LAW UPDATE

Judge Milton Hirsch, Circuit Judge (11th Judicial Circuit)

THE PROBLEM OF DNA MIXTURES

Seth Miller, Executive Director, Innocence Project of Florida

DRILLING DOWN INTO PRETRIAL RELEASE

OF CLIENTSNancy Daniels,

Legislative Consultant, Florida Public Defender Association

A JUDGE’S VIEW ON ETHICS & PROFESSIONALISM Judge Robin Lemonidis,

Circuit Judge (18th Judicial Circuit)

DEFENDING FLORIDA LICENSED PROFESSIONALS

Ed Bayó, Grossman, Furlow & Bayó

FACDL 31ST ANNUAL MEETINGC O U R S E M AT E R I A L S

JUNE 20-22, 2019 · Ross Haine Robert Harrison Michael Hopkins ... the true real life meaning of...

Documents

Transcript of JUNE 20-22, 2019 · Ross Haine Robert Harrison Michael Hopkins ... the true real life meaning of...