The interesting thing is going to be what the appeals process is going to do with these cases.  Circuit judges in other parts of the state have already denied these motions, as has a different judge in the Middle District.  Either way, there is going to be a lot of litigation and it’s going to be very interesting to watch.  It will be hard, I think, having read the analysis, for state court appeals courts to get around Judge Scriven’s logic.  The issue is that the Legislature made possession or delivery of certain substances a strict liability offense, and that, in her analysis, does not pass constitutional muster.  (That said, I certainly think many of them will try.)

The other interesting thing will be what happens in the postconviction contect with this issue.  Assuming that the offending section is determined, ultimately, to be unconstitutional, will they open up a window like they did with Taylor and Green?  There could be a lot of opportunity for those seeking some postconviction relief on possession and delivery charges going back to 2002.  In Hillsborough and Pinellas county alone, this is a huge number of cases.

An interesting aspect of this law and its path to becoming law is the support the measure garnered from those on both sides of drug prosecutions.  Law enforcement officers, prosecutors and family and faith based groups working on reducing the effects of mandatory minimum sentences all joined together in supporting this legislation.

Another issue to note is the potential for application of Graham to those cases where a juvenile defendant was involved in a murder but did not actually carry out the final act.  Graham suggests that life without parole is an inappropriate sentence for someone who did not kill or intend to kill, leaving an argument for those charged as principals in murder cases.  It will be interesting to see how this evolves and what ends up being done with juveniles in this situation.

Flores’ timely Rule 3.850 motion was denied after an evidentiary hearing.  His trial counsel did not testify and no other evidence or testimony was presented that refuted Flores’ allegations about his attorney’s advice.  The trial court denied the motion, finding that Flores lacked credibility and that the court’s warning about deportation cured any misadvice from Flores’ trial counsel. 

The 4th DCA specifically held in this opinion that the Rule 3.172(c)(8) deportation warning cures any misadvice from trial counsel– and specifically addressed how this case differs from Padilla v. Kentucky, 130 S. Ct. 1473 (2010).  In Padilla, the Kentucky trial court gave no admonition at all about the risks of deportation resulting from pleas in criminal cases. 

This blog previously addressed the question of what impact Padilla might have on postconviction litigation in Florida.  The answer seems to be not much.  In Florida before Padilla, trial courts were required to give the Rule 3.172(c)(8) warning and the failure to do so could very well lead to a legal basis to withdraw a plea.  It appears that Padilla does not change that. 

The real problem presented by the lack of redress available to criminal defendants who are placed in the position of having to rely on their criminal defense lawyers for immigration advice is that it will, in my opinion, impact substantially on indigent defendants who do not have access to trained immigration counsel.  Are assistant public defenders in a position to do anything more than inform their clients that a plea in a criminal case will undoubtedly lead to deportation?  Will that lead to unnecessary trials and the concomitant waste of judicial resources?  These are questions (and problems) beyond the scope of the cases creating the law on this issue.  But perhaps they should not be.

Changes in federal sentencing in this area would eventually, I think, trickle down to states.  Drug sentencing is bogging down our courts and filling our jails.  While significant progress must be made on the prevention and treatment side, this is a good step.

The Commission is authorized to interview individuals involved with cases, review documents and essentially undertake whatever investigation is necessary to fulfill its mandate. The members of the Commission come from all over the state and at first glance seem to come from many different walks of life, hopefully bringing significant skill and determination to their posts.

As a former assistant public defender, I suggest that funding for Public Defender’s Offices is one of the first issues the Commission should look at. Attracting and keeping well qualified and concerned attorneys to indigent defense would be a major hurdle in the battle against wrongful conviction.

But what does this have to do with my postconviction world?  Well, it turns out that it might have a lot to do with it.

I read an interesting article today (originally excerpted by the American Constitutional Society on Facebook, funny enough– who knew I could do legal research on Facebook?) in which University of Maryland Law professor Sherrilyn Ifill argues that the Court’s decision in Berghuis v. Thompkins is a signal of the “sharp tilt” that our courts are taking in favor of prosecutors.

Berghuis v. Thompkins concludes that simply remaining silent is not enough to ‘invoke’ one’s constitutional right to remain silent.  A suspect must now affirmatively state that they do not wish to talk to police to prevent ongoing questioning, even for hours, as was the case in Thompkins.  (You can read the opinion yourself at www.supremecourt.gov/opinions/09pdf/08-1470.pdf.)

But Professor Ifill’s gripe is not simply with this opinion, although she has one with it, to be sure.  She points out that none of the current justices has any experience as a criminal defense lawyer and sees irony in Justice Sotomayor’s strong dissent, in which she takes up the cause of the defense.  Ifill laments that this is a trend that began decades ago and continues.

Now to postconviction.  The Court considered another case, Wood v. Allen, recently.  Wood was convicted in Alabama state court of capital murder and sentenced to death.  His conviction was affirmed by both the Alabama Court of Appeals and the Alabama Supreme Court.  He then filed a postconviction motion, alleging ineffective assistance of trial counsel by way of failure to present evidence of his intellectual deficiencies during the penalty phase.  (Mr. Wood alleges to be mentally retarded.)  He got relief after filing a federal habeas petition but the 11th Circuit reversed.  The Supreme Court, with Justice Sotomayor writing for the majority, agreed with the 11th and found that the state court’s conclusion that trial counsel acted strategically in choosing not to pursue or present this potentially mitigating evidence was not unreasonable under the facts of the case.  Justice Stevens, who will soon leave the Court, joined by Justice Kennedy, wrote a separate dissent, noting that the majority did not distinguish between a decision not to introduce evidence during the guilt phase and failure to investigate mitigation during the penalty phase of a death case.  He used the words “inattention and neglect” to describe what the majority called strategy.

Is this the difference between a former prosecutor, familiar with the nuts and bolts of how to take a case to trial, as well as the motion practice that goes along with it, and a lawyer who has had to structure a defense for (yes, sometimes, often, but not always) a guilty client? If so, I think I might join Professor Ifill in her lament.

This is actually a big problem in Florida.  The writer, Chelsea Enright, cites a frightening number, stating that at least 21 cases that have resulted in exonerations, most in the last 10 years.  As public lawyers are overworked and underpaid everywhere in America, I’m personally quite sure it’s an issue nationwide, but Florida has created severe sentencing laws that compound the problem.  When someone who has been in trouble before is convicted of a new, serious felony, the likelihood of that person serving a very lengthy prison sentence is high.  HFO, VCC, PRR, etc.  There are a lot of scary acronyms to learn when practicing criminal law in Florida.

Florida’s lawyers have already signed on to the Innocence Commission, with the Florida Bar’s Board of Governors publicly supporting creation of such an entity.  Now, the matter is in the hands of Governor Crist.

http://www.nytimes.com/2010/05/23/magazine/23

The New Jim Crow by Michelle Alexander, a law professor at Ohio State University, argues that problems such as bad identifications are worse in cases brought against people of color, compounded by the lack of resources available to publicly paid lawyers, who serve more minorities, generally speaking.  I haven’t read the book yet but will report back soon.

This article, and the discussion of The New Jim Crow, remind me of a case I read about in the local news last week.  That story, about convicted felon Ronny Walker, is a terrible one.  In 2003, during the course of a burglary, a man shot and killed Elaine Caldwell in her home.  Her 9 year old granddaughter and boyfriend were also in the home and saw the shooting occur.  The boyfriend, Raymond Lee, identified Walker from an online mug shot database.  Walker was serving a prison sentence on unrelated charges until recently and was only charged upon his release in 2009.  He was convicted earlier this month.

A couple of interesting facts about Walker’s case:

Lee was a drug dealer operating out of the home where Caldwell was killed, a fact that the killer knew.

Walker, a who has served many years in the Department of Corrections before, turned down a deal to plea to manslaughter in exchange for 5 years in prison.

A jury was unable to come to a conclusion in the case in an earlier trial in February of this year.

A detective apparently testified that Walker never outright denied killing Caldwell and said the he would never tell on himself, which obviously swayed the jury in this trial.