IN THE SUPREME COURT OF FLORIDA CASE NO.: SC LESLIE DEMENIUK, vs. STATE OF FLORIDA,

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO.: SC LESLIE DEMENIUK, Petitioner, vs. STATE OF FLORIDA, Respondent. On Notice to Invoke Discretionary Jurisdiction of the Fifth District Court of Appeal JURISDICTIONAL BRIEF OF PETITIONER Wm. J. Sheppard, Esquire Florida Bar No.: D. Gray Thomas, Esquire Florida Bar No.: Sheppard, White and Thomas, P.A. 215 Washington Street Jacksonville, Florida Telephone: (904)

2 Facsimile: (904) COUNSEL FOR PETITIONER TABLE OF CONTENTS Page TABLE OF CONTENTS...i TABLE OF CITATIONS... TABLE OF ISSUES PRESENTED... ii iii STATEMENT OF THE CASE...iv SUMMARY OF THE ARGUMENT... v ARGUMENT... 1 I. THE FIFTH DISTRICT S OPINION EXPRESSLY AND DIRECTLY CONFLICTS WITH DECISIONS OF THIS COURT REGARDING ADMISSIBILITY OF EXPERT TESTIMONY OFFERED BY A CAPITAL CRIMINAL DEFENDANT, EXPRESSLY AND DIRECTLY CONFLICTS WITH A DECISION OF THIS COURT ON THE STANDARD FOR GRANTING CERTIORARI RELIEF TO THE STATE IN A CRIMINAL CASE AND EXPRESSLY CONSTRUES PROVISIONS OF THE FEDERAL AND STATE CONSTITUTIONS... 1 CONCLUSION... 8 CERTIFICATE OF SERVICE i-

3 CERTIFICATE OF COMPLIANCE ii-

4 TABLE OF CITATIONS Case(s) Page Castillo v. DuPont, 854 So.2d 1264 (Fla. 2003)... 2 Chambers v. Mississippi, 410 U.S. 284 (1973)... 6 Hadden v. State, 690 So.2d 573 (Fla. 1997)... 1,3 Ramirez v. State, 810 So.2d 836 (Fla. 2001)... 2,6 Roberts v. State, 510 So.2d 885 (Fla. 1987)... 2,6 State v. Pettis, 520 So.2d 250 (Fla. 1988)... 2,6 Florida Constitution Art. I, Sec. 9, Fla. Const Art. I, Sec. 16, Fla. Const U.S. Constitution Amend. V, U.S. Const Amend. VI, U.S. Const Amend. XIV, U.S. Const iii-

5 TABLE OF ISSUES PRESENTED I. WHETHER THIS COURT SHOULD INVOKE ITS DISCRETIONARY JURISDICTION BECAUSE THE DECISION BELOW EXPRESSLY AND DIRECTLY CONFLICTS WITH DECISIONS OF THIS COURT GOVERNING THE STANDARDS FOR ADMISSIBILITY OF EXPERT OPINION TESTIMONY OFFERED BY A DEFENDANT IN A CAPITAL CRIMINAL CASE. II. WHETHER THIS COURT SHOULD INVOKE ITS DISCRETIONARY JURISDICTION BECAUSE THE DECISION BELOW EXPRESSLY AND DIRECTLY CONFLICTS WITH THIS COURT S DECISION IN STATE v. PETTIS, 520 So.2d 250 (Fla. 1988), REGARDING THE STANDARD THAT MUST BE MET WHEN THE STATE SEEKS A WRIT OF CERTIORARI PRIOR TO TRIAL IN A CAPITAL CRIMINAL CASE. III. WHETHER THIS COURT SHOULD INVOKE ITS DISCRETIONARY JURISDICTION TO REVIEW THE DECISION BELOW, WHICH EXPRESSLY CONSTRUES THE RIGHT OF A CRIMINAL DEFENDANT TO PRESENT A FULL AND FAIR -iii-

6 DEFENSE, AS PROTECTED BY THE UNITED STATES AND FLORIDA CONSTITUTIONS. STATEMENT OF THE CASE Leslie Demeniuk is charged with two counts of first degree murder arising from the death of her four-year old twin sons. The State has filed a notice of its intention to seek the death penalty in the event of conviction as charged, and Ms. Demeniuk has given notice of intent to rely on the defense of insanity. Following protracted pretrial proceedings, the State challenged the admissibility of certain expert testimony sought to be offered by Ms. Demeniuk in support of her insanity defense. The trial court subsequently ordered a Frye 1 hearing. After one defense expert had testified, the trial court vacated its earlier order requiring a Frye hearing, concluding that the proffered expert testimony was admissible, particularly in the context of constituting defense evidence in a capital prosecution. The State petitioned to the Fifth District Court of Appeal for a writ of certiorari. On August 27, 2004, the Fifth District rendered an opinion granting the State s petition. On November 9, 2004, the Fifth District, inter alia, denied Ms. Demeniuk s Motion for Rehearing, Rehearing En Banc, Clarification 1 Frye v. United States, 293 F (D.C. Cir. 1923). -iv-

7 -vand Certification. Ms. Demeniuk timely filed a Notice to Invoke Discretionary Jurisdiction of this Court. 2 SUMMARY OF THE ARGUMENT The Fifth District s opinion in this case expressly and indirectly conflicts with a series of decisions by this Court regarding the standards for admissibility of expert opinion. The court below failed to consider evidence of scientific progress and evidence arising during the pendency of the State s Petition for Certiorari, conflicts with the standard enunciated by this Court for the determination of what testimony constitutes pure opinion, which is not subject to scrutiny under Frye, conflicts with this Court s admonition that Frye assesses the validity of the science underlying an expert opinion without reaching the expert s application of the underlying science to render a conclusion and conflicts with decisions of this Court regarding the right to present a defense in a criminal case, particularly in the context of a Frye issue and a capital case. The Fifth District s decision in this case also expressly construes provisions of the United States and Florida Constitutions relating to the fundamental 2 A copy of the Fifth District s panel opinion is attached hereto as Appendix A. A copy of the Fifth District s Order that, inter alia, denied Ms. Demeniuk s Motion for Rehearing, Rehearing En Banc, Clarification and Certification is attached hereto as Appendix B.

8 constitutional right to present a defense in a criminal case and expressly and directly conflicts with decisions of this Court construing those provisions. Finally, the Fifth District s decision further conflicts with the standard of review enunciated by this Court for a certiorari petition filed by the State prior to trial in a criminal case. Accordingly, the Court should accept jurisdiction in this case. ARGUMENT I. THE FIFTH DISTRICT S OPINION EXPRESSLY AND DIRECTLY CONFLICTS WITH DECISIONS OF THIS COURT REGARDING ADMISSIBILITY OF EXPERT TESTIMONY OFFERED BY A CAPITAL CRIMINAL DEFENDANT, EXPRESSLY AND DIRECTLY CONFLICTS WITH A DECISION OF THIS COURT ON THE STANDARD FOR GRANTING CERTIORARI RELIEF TO THE STATE IN A CRIMINAL CASE AND EXPRESSLY CONSTRUES PROVISIONS OF THE FEDERAL AND STATE CONSTITUTIONS. The opinion of the Fifth District expressly and directly conflicts with a series of decisions of this Court on a standard to be applied in determining the admissibility of expert opinion testimony, particularly when such testimony is offered on behalf of a criminal defendant and, even more acutely, in a capital case. The Fifth District failed to consider scientific progress and evidence from legitimate sources presented to that Court during the pendency of the State s petition for certiorari. In so failing, the

9 decision below expressly and directly conflicts with this Court s decision in several cases, including, Hadden v. State, 690 So.2d 573, (Fla. 1997). The decision below also conflicts with the standard for the determination of what constitutes pure opinion testimony by an expert, as also discussed in Hadden. Furthermore, the Fifth District s decision conflicts with this Court s opinion in Castillo v. DuPont, 854 So.2d 1264 (Fla. 2003), by seeking to assess not simply the validity of the science underlying the opinion but rather reaching to the individual expert s application of the underlying science in reaching his conclusion. The Fifth District additionally conflicts with this Court s decision in State v. Pettis, 520 So.2d 250 (Fla. 1988), by granting certiorari relief to the State in a case in which the order sought by the State to be reviewed did not effectively negate its [the state s] ability to prosecute, 502 So.2d at 253, in that the trial court s order merely admitted evidence to be offered by the defendant rather than reaching any decision that would prevent the State from prosecuting the case. Finally, the Fifth District s opinion expressly construes the fundamental constitutional right to present a defense in a criminal case as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 9 and 16 of the Florida Constitution, and in so doing further expressly and directly conflicts with this Court s decision in Ramirez v. State, 810 So.2d 836 (Fla. 2001) and Roberts v. State, 510 So.2d 885 (Fla. 2

10 1987). Accordingly, this Court should exercise its discretion to review the opinion of the Fifth District Court of Appeal in this case. The Fifth District overlooked relevant materials in the form of studies, judicial decisions regarding admissibility and United States and other government actions taken during the pendency of review. In so doing, the opinion below conflicts with decisions of the Florida Supreme Court that a court reviewing a Frye issue is to consider scientific progress and evidence from any legitimate source, including scientific studies or other evidence released even after a trial court s Frye hearing and ruling, up to the time of appellate decision. See, e.g., Hadden v. State, 690 So.2d 573, (Fla. 1997). The court below ignored post-hearing information (1) that on March 22, 2004, the United States Food and Drug Administration (FDA) told SSRI 3 manufacturers to warn doctors and patients to increase vigilance for suicidal tendencies during the initial weeks after starting, changing dosages or changing types of drugs, (2) additional reports and studies reflecting risks of new or increased suicidality and hostility after the initiation of or changes in, SSRI therapy, (3) evidence that pharmaceutical 3 Selective serotonin reuptake inhibitors (SSRI) are a class of antidepressant drugs, two of which, Zoloft (sertraline) and later Paxil (paroxetine) were used to treat Ms. Demeniuk for anxiety and depression during the month before the homicides in this case. See Slip op. at 2. 3

11 companies and the FDA had previously suppressed information showing these risks; (4) new drug manufacturers warnings, regarding both juveniles and adults, of severe agitation-type adverse events coupled with self-harm or harm to others during the first weeks of SSRI treatment; and (5) FDA action on October 15, 2004, requiring the FDA s highest level of warnings on SSRI drugs. Also, the manufacturer of Paxil (with which Ms. Demeniuk began treatment two days before the homicides in this case, after four weeks on Zoloft) released an analysis of its data on clinical trials of Paxil in children and adolescents. GlaxoSmithKline acknowledged that adverse events possibly related to suicidal behavior were two to three times greater in patients with major depressive disorder treated with Paxil than with those given placebo. See Re: Use of Paxil or Paxil CR in Pediatric Patients at 1, 12 (unnumbered); available at (Click on US Medical Information ). The company further warned doctors and caregivers that both adult and pediatric [patients] may experience worsening of their depression and/or the emergence of suicidal ideation and behavior and so should be closely monitored for suicidality especially at the beginning of a course of drug therapy, or at the time of dose changes... Id. at 2 (unnumbered). GSK lists problematic 4

12 symptoms as including anxiety, panic, hostility (aggressiveness), impulsivity and akathisia. Id. 4 Furthermore, Andrew D. Mosholder, M.D., of the FDA reviewed a 2004 reclassification of data on the subject by Columbia University in conjunction with other data and reports compiled by the FDA. See Mosholder, Andrew D., Suicidality in pediatric clinical trials of antidepressant drugs: Comparison between previous analyses and Columbia University classification (Food and Drug Administration, August 16, 2004). Dr. Mosholder found a statistically significant association of suicidal events with antidepressant drug treatment in short-term clinical trials for all indications. Id. at 5. He noted that even the review by Dr. Hammad (whose opinion the State favors) shows increased risk estimates for two drugs, one of which is paroxetine (Paxil). Id. Not only was, and still is, the Fifth District bound to consider such information under Hadden and other decisions of this Court, but these materials provide additional foundations for Dr. Menkes opinions. 4 GSK agreed to make this data public in response to a lawsuit brought against it by the State of New York, alleging fraud by concealment of unfavorable clinical trial information on Paxil, which was settled by GSK agreeing to make such data public and paying $2.5 million to New York State. See GlaxoSmithKline Settles Litigation With New York Attorney General s Office (GSK August 26, 2004). 5

13 The opinion of the Court also conflicts with the standard of review of a pretrial petition for writ of certiorari filed by the State in a criminal case as set forth by this Court in Pettis, supra. Pettis holds that the State is entitled to certiorari relief from orders which effectively negate its ability to prosecute. 502 So.2d at 253. The court in Pettis found error in the trial court s ruling denying a prosecution motion in limine, but found the error did not rise to the extraordinary level required for the state to obtain relief by certiorari. Id. at The Fifth District failed to apply this standard, choosing instead to apply a de novo standard applicable to Frye issues on direct appeals as opposed to pretrial State certiorari petitions in capital criminal cases. The trial court s order in this case does not effectively negate the State s ability to prosecute because the State remains fully able to challenge the weight of the defense expert testimony for consideration by the jury, and so, under Pettis, the state is not entitled to certiorari relief. The Fifth District s opinion conflicts with Ramirez v. State, 810 So.2d 836, 843 (Fla. 2001) and Chambers v. Mississippi, 410 U.S. 284, 302 (1973), which stand for the proposition that rules of evidence, even well established rules, should not be applied in such a way as to impinge a defendant s rights to a fair trial and to present defense witnesses. Indeed, this principle was recognized and applied by this Court in Ramirez, in which the Court held that any doubt as to admissibility under Frye in 6

14 a criminal case should be resolved in a manner that minimizes the risk of an erroneous conviction, particularly in a capital case. Furthermore, the Fifth District s decision conflicts with Roberts v. State, 510 So.2d 885, 892 (Fla. 1987), which held, citing Chambers, that where application of an evidence statute would preclude the defense from presenting a full and fair defense, the statute would have to give way to these constitutional rights. In addressing this question, the Fifth District further expressly construed the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 9 and 16 of the Florida Constitution. Accordingly, this Court has, and should exercise, jurisdiction to review the Fifth District s decision in this case. 7

15 CONCLUSION For the foregoing reasons, the Court should accept jurisdiction in this case. Respectfully submitted, Wm. J. Sheppard, Esquire Florida Bar No.: D. Gray Thomas, Esquire Florida Bar No.: Sheppard, White and Thomas, P.A. 215 Washington Street Jacksonville, Florida Telephone: (904) Facsimile: (904) COUNSEL FOR PETITIONER 8

16 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished to Maureen S. Christine, Esquire and Norma K. Wendt, Esquire, Assistant State Attorney, 4010 Lewis Speedway, Room 252, St. Augustine, Florida 32095, by United States Mail, this 29 th day of November, ATTORNEY 9

17 CERTIFICATE OF COMPLIANCE Undersigned counsel certifies that the size and style of type used in this brief is 14-point Times Roman. ATTORNEY lh