IN THE SUPREME COURT OF FLORIDA. vs. Case No. SC

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1 IN THE SUPREME COURT OF FLORIDA WILLIAM T. TURNER, Petitioner, vs. Case No. SC STATE OF FLORIDA, Respondent. / PETITIONER S REPLY TO STATE S RESPONSE TO PETITION SEEKING REVIEW OF NONFINAL ORDER IN DEATH PENALTY PROCEEDING Introduction. The fundamental issue in this action is whether Petitioner s motion to disqualify the trial judge from presiding over his Rule proceeding was legally sufficient. If the motion was legally sufficient, the only other substantive issue facing the Court is whether the trial judge erred in holding that the filing of Petitioner s motion for disqualification contemporaneously with his Rule motion was untimely. If and only if this Court should find that the motion for disqualification was (1) legally insufficient and (2) untimely, the Court must determine the tertiary issue of whether the failure of the trial court to act on the motion for disqualification for some 539 days required the automatic granting of

2 the motion, pursuant to this Court s case law and the Florida Rules of Judicial Administration, which require a ruling within 30 days. 1. Respondent acknowledges that disqualification and reassignment are warranted. It must be noted at the outset that Respondent/State admits in its Response to Petition for Review of a Nonfinal Order in a Death Penalty Postconviction Proceeding (hereinafter Response to Petition ) that even the State believes Petitioner s case should be assigned to a different judge. [T]he State filed an unopposed motion to reassign the case believing that to be the most prudent course. Response to Petition, p. 11. The parties are thus in agreement that disqualification is the most prudent course of action here. 2. Legal sufficiency of Petitioner s motion for disqualification. In his motion for disqualification and his Petition to this Court, Petitioner set forth the primary ground upon which he relies, to wit, an ex parte discussion between the trial judge and counsel for the Respondent State of Florida concerning issues in Petitioner s case. In addition to improperly discussing the case, during the ex parte conversation the trial judge expressed to counsel for the Respondent his displeasure with the fact that Petitioner s case was still pending, i.e., that Petitioner was still alive. The fact that this conversation occurred and the content of the conversation 2

3 have never been disputed by the judge or the Respondent/State. The dispute is thus not over the facts but over their significance. Respondent/State contends (a) that the ex parte discussion of Petitioner s ineffective assistance of counsel claim was permissible because the ineffectiveness was not pending before Judge Southwood at the time of the ex parte discussion; and (b) the judge s ex parte expression of dismay at the delay in carrying out Petitioner s execution was permissible because even Justices of this Court have routinely expressed dismay over the delays in capital cases. Response to Petition, p The conduct of the trial judge here can not be compared to generalized statements from justices and legislators expressing frustration regarding unnecessary delay in capital cases. Response to Petition, at 10. Petitioner would have no quarrel had the judge merely commented about the death penalty system in general and had the comment not been made privately to opposing counsel in Petitioner s case about Petitioner s case. Here, the judge s expression of frustration concerned Petitioner s case specifically and was communicated off-the- 1 The identity of trial counsel, and the fact that he became Bar president nearly two years after the ex parte conversation in question, obviously have nothing whatsoever to do with the merits of the instant Petition. Respondent s gratuitous insertion of those extraneous facts (Response to Petition, p. 9) is wholly improper. 3

4 record to counsel for one of the parties in the case. In addition, the judge expressed his mistaken belief that Petitioner s case was the oldest case on death row, which was not even close to being true. As noted previously, at the time of the judge s ex parte comments, some seventy-eight (78) death row cases were older than Petitioner s, including seven (7) from Duval County alone. In its Response, p. 11, the State aptly cites this Court s unambiguous admonition that a judge should not engage in any conversation about a pending case with only one of the parties participating in that conversation. Rose v. State, 601 So. 2d 1181, 1183 (Fla. 1992) (emphasis added). As the Court emphasized in Rose: We are not here concerned with whether an ex parte communication actually prejudices one party at the expense of the other. The most insidious result of ex parte communications is their effect on the appearance of impartiality of the tribunal. The impartiality of the tribunal must be beyond question. Id. (Emphasis in original.) Here, the judge s impartiality is clearly in question, given his unchecked willingness not only to discuss Petitioner s case privately with opposing counsel but to make comments that derogate Petitioner s right to pursue legal remedies. This Court s precedent is unequivocal and abundant. Petitioner s motion for disqualification was legally sufficient and Judge Southwood should have 4

5 disqualified himself. Mackenzie v. Super Kids Bargain Store, 565 So. 2d 1332, (Fla. 1990); Suarez v. State, 527 So. 2d 190 (Fla. 1988); Livingston v. State, 441 So. 2d 1083 (Fla. 1983). 3. Timeliness. Petitioner s motion for judicial disqualification was filed on November 30, 2004, contemporaneously with the filing of his motion for relief pursuant to Fla. R. Crim. P. Rule and Atkins v. Virginia, 536 U.S. 304, 122 S. Ct (2002). The filing of Petitioner s Rule motion commenced his action in the circuit court. Conversely, prior to the filing of the 3.203, there was no action in the circuit court. Despite the filing of Petitioner s motion for judicial disqualification with his Rule motion on the same day that the action was initiated, the trial judge ruled 539 days later that the disqualification motion was untimely because it was not filed within ten days of discovery of the facts constituting the grounds for the motion, i.e., within ten days of the court s ex parte comments to counsel for the state of Florida following a status conference on April 16, At that time, however, there was no action pending. The court had ruled orally on April 16, 2003, that Petitioner s Rule 3.203/Atkins motion was dismissed without prejudice because of Petitioner s then-pending habeas corpus proceedings in federal court. It was not until the unsuccessful conclusion of federal habeas corpus proceedings and 5

6 the filing of Petitioner s Rule motion on November 30, 2004, that any action in the lower court existed. Petitioner diligently filed his Motion for Judicial Disqualification on that very same date, contemporaneous with the filing of his Rule motion contemporaneous with the commencement of the legal cause in question. Petitioner acted with the utmost diligence in filing for disqualification the very day that his Rule litigation commenced. To require Petitioner to have moved for disqualification prior to the filing of the motion that initiated the proceedings below would be entirely unreasonable and inefficient: there was no case for the judge to disqualify himself from until the Rule motion was filed. It is noteworthy that the Respondent/State does not assert anywhere in its Response that the trial judge was correct in holding that the disqualification motion was untimely. Petitioner s motion for disqualification was indeed timely and the trial judge erred in finding otherwise. 4. The 30-day requirement of Fla. R. Jud. Admin (j). Petitioner s motion for judicial disqualification was filed on November 30, Thirty-two days later, a new provision of Fla. R. Jud. Admin (j) went into effect, requiring that motions for disqualification are deemed granted if not ruled upon within 30 days of service. The new provision codified this Court s holding in Tableau Fine Art Group, Inc. v. Jacobini, 853 So. 2d 299 (Fla. 2003). Should this 6

7 Court determine that Petitioner s motion for disqualification was legally sufficient and timely and, therefore, should have been granted by the trial judge, the applicability of Rule 2.160(j) is not a factor herein. If, however, this Court finds that the disqualification motion was legally insufficient or untimely, Petitioner respectfully submits that his motion for disqualification should have been granted automatically, pursuant to the rule and to this Court s ruling in Tableau, supra. Conclusion. The circuit court s denial of Petitioner s motion for disqualification was erroneous for several reasons. The motion was clearly legally sufficient and was timely filed, contemporaneous with the filing of Petitioner s Rule motion. The circuit court erred in holding that the motion was not timely and in failing to rule on the motion until nearly eighteen months after the motion was filed. Accordingly, this Court should reverse the court below and grant disqualification. Respectfully submitted, JAMES C. LOHMAN Florida Bar No East 39 th Street Austin, Texas (512) COUNSEL FOR PETITIONER 7

8 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was mailed by U.S. mail to Charmaine Millsaps, Office of the Attorney General, The Capitol, Tallahassee, Florida ; John Guy, Assistant State Attorney, Duval County Courthouse, 220 East Bay Street - Suite 1000, Jacksonville, Florida 32202; and Honorable John D. Southwood, Circuit Judge Duval County Courthouse, 330 East Bay Street, Jacksonville, Florida 32202; this 23 day of August, Attorney 8