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

Transcription

1 IN THE SUPREME COURT OF FLORIDA WILLIAM T. TURNER, Petitioner, vs. Case No. SC STATE OF FLORIDA, Respondent. / ON PETITION FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FLORIDA PETITION SEEKING REVIEW OF NONFINAL ORDER IN DEATH PENALTY PROCEEDING JAMES C. LOHMAN Florida Bar No East 39 th Street Austin, Texas (512) Fax (512) COUNSEL FOR PETITIONER

2 TABLE OF CONTENTS Table of Authorities ii Jurisdictional Statement Order Sought to Be Reviewed Court Below Procedural History Facts Relied Upon Standard of Review Argument Relief Sought Certificate of Service ii

3 TABLE OF AUTHORITIES CASES Federal Atkins v. Virginia, 536 U.S. 304, 122 S. Ct (2002) passim Carey v. Piphus, 435 U.S. 247, 98 S.Ct (1978) , 22 Easter v. Endell, 37 F. 3d 1343 (8th Cir. 1994) In re Murchison, 349 U.S. 133 (1955) , 23 Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624 (1951).. 21 Marshall v. Jerrico, Inc., 446 U.S. 238 (1980) Matthews v. Eldridge, 424 U.S. 319, 96 S.Ct. 89 (1976) Porter v. Singletary, 49 F.3d 1483 (11th Cir. 1995) Ring v. Arizona, 536 U.S. 584 (2002) Taylor v. Hayes, 418 U.S. 488 (1974) Turner v. Crosby, 339 F. 3d 1247 (11 th Cir. 2003) cert. denied 124 S. Ct (2004) Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841 (1964) State ATS Melbourne, Inc. v. Jackson, 473 So. 2d 280 (Fla. 5th DCA 1985) Bundy v. Rudd, 366 So. 2d 440 (Fla. 1978) iii

4 Chastine v. Broome, 629 So. 2d 293 (Fla. 4th DCA 1993) , 18, 21 Crosby v. State, 97 So.2d 181 (Fla. 1957) Davis v. Nutaro, 510 So. 2d 304 (Fla. 4th DCA 1986) Dickenson v. Parks, 104 Fla. 577, 140 So. 459 (1932) Digeronimo v. Reasbeck, 528 So. 2d 556 (Fla. 4th DCA 1988) Fruhe v. Reasbeck, 525 So. 2d 471 (Fla. 4th DCA 1988) Gieseke v. Moriarty, 471 So. 2d 80 (Fla. 4th DCA 1985) Hayslip v. Douglas, 400 So. 2d 553 (Fla. 4th DCA 1981) Holland v. State, 503 So. 2d 1250 (Fla. 1987) Lake v. Edwards, 501 So. 2d 759 (Fla. 5th DCA 1987) Livingston v. State, 441 So. 2d 1083 (Fla. 1983) , 19, 20, 21, 23 Mackenzie v. Super Kids Bargain Store, 565 So. 2d 1332, (Fla. 1990) Management Corp. v. Grossman, 396 So. 2d 1169 (Fla. 3rd DCA 1981) Ryon v. Reasbeck, 525 So. 2d 1025 (Fla. 4th DCA 1988) State v. Steele, 348 So. 2d 398 (Fla. 3d DCA 1977) State ex rel. Aguilar v. Chappell, 344 So.2d 925 (Fla. 3d DCA 1977) State ex rel. Brown v. Dewell, 131 Fla. 566, 179 So. 695 (1938) iv

5 State ex rel. Davis v. Parks, 141 Fla. 516, 194 So. 613 (1939) State ex rel. Mickle v. Rowe, 100 Fla. 1382, 131 So. 331 (1930) , 23 Suarez v. State, 527 So. 2d 190 (Fla. 1988) , 18, 19, 21, 23 Turner v. Dugger, 614 So. 2d 1075 (Fla. 1992) Turner v. State, 530 So. 2d 45 (Fla. 1988), cert. denied 489 U.S (1989)... 2 CONSTITUTIONAL PROVISIONS, STATUTES AND RULES Code of Judicial Conduct, Canon 3B(7) Code of Judicial Conduct, Canon 3E(1) , 19, 21 Fla. R. App. P (b) Fla. R. Crim. P. Rule passim Fla. R. Crim. P. Rule passim Fla. R. Jud. Admin , 12, 18, 19, 25 Fla. Statutes (1995) Rules of Professional Conduct, Rule 4-3.5(b) , 15 v

6

7 JURISDICTIONAL STATEMENT Petitioner Turner seeks review of a nonfinal order of the Circuit Court of the Fourth Judicial Circuit in and for Duval County, Florida, in a Rule 3.850/3.203 proceeding in a capital case. Pursuant to Rule 9.142(b) of the Florida Rules of Appellate Procedure, this Court has jurisdiction over this original petition. ORDER SOUGHT TO BE REVIEWED The order sought to be reviewed is the circuit court s Order Denying Defendant s Motion for Disqualification, entered on May 23, 2006, wherein the trial judge denied Petitioner s motion for disqualification. COURT BELOW The Court below was the Circuit Court of the Fourth Judicial Circuit in and for Duval County, Florida, the Honorable John D. Southwood, presiding. 1

8 PROCEDURAL HISTORY On July 18, 1984, the Petitioner, William T. Turner, was indicted on two counts of first degree murder for the deaths of his estranged wife, Shirley Turner, and her roommate, Joyce Brown. Mr. Turner entered pleas of not guilty to both counts. Mr. Turner was convicted of first degree murder on both counts on August 16, Following a capital penalty phase proceeding, the jury recommended a life sentence for the death of Ms. Turner by a vote of seven-to-five, and a death sentence for the death of Ms. Brown by a vote of seven-to-five. On November 1, 1985, the trial court sentenced Mr. Turner to life in prison for the murder of his wife, and to death for the murder of Ms. Brown. On direct appeal, the case was remanded twice for evidentiary hearings concerning Mr. Turner s absence from critical stages of his trial. After the remands, Mr. Turner s convictions and sentences were affirmed by this Court on July 7, Rehearing was denied on September 22, Turner v. State, 530 So. 2d 45 (Fla. 1988). The United States Supreme Court denied certiorari on February 21, 1989, Turner v. Florida, 489 U.S (1989), making any motion pursuant to F. R. Crim. P. Rule due on February 21,

9 On March, 29, 1990, some eleven (11) months before Petitioner s Rule motion was due under the rule s two-year time limitation, Florida Governor Bob Martinez signed a death warrant scheduling Mr. Turner s execution for May 30, The Florida Office of Capital Collateral Representative moved for a stay of execution for Mr. Turner asserting that they were unable to represent Mr. Turner and that outside counsel had to be recruited to handle his case. On April 26, 1990, this Court granted a stay of execution until private counsel could be located for Mr. Turner. On May 25, 1990, the Tallahassee law firm of Ausley McMullen informed the Court that it would represent Mr. Turner pro bono, and the court ordered that Mr. Turner s Rule motion be filed by September 25, That date was extended by the court to October 15, 1990, and Mr. Turner s Rule motion to vacate was filed in the Circuit Court for Duval County on that date, less than five months after counsel had been appointed. Pro bono counsel filed a roughly 300- page motion supported by 78 Appendix exhibits that included affidavits from over forty-five (45) individuals who knew Mr. Turner (lawyers, medical professionals, jail personnel, friends, ministers, co-workers, neighbors, and hitherto undiscovered eyewitnesses to the crimes.) Twenty (20) days after these 3

10 voluminous materials were filed, the trial judge summarily denied the motion. The denial of relief was affirmed by this Court. Turner v. Dugger, 614 So. 2d 1075 (Fla. 1992). Petitioner filed his first and only petition for federal habeas corpus relief, on or about July 16, On June 26, 2002, in a 291-page Order, the United States District Court summarily denied the petition in its entirety but without prejudice to Petitioner s right to raise a claim pursuant to Atkins v. Virginia in a separate petition in this Court, after exhausting such a claim in the state courts... Order, at 291. See Atkins v. Virginia, 536 U.S. 584, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002) (Eighth and Fourteenth Amendments prohibit execution of persons with mental retardation.). Petitioner appealed the denial of habeas corpus relief to the United States Court of Appeals for the Eleventh Circuit. The court affirmed. Turner v. Crosby, 339 F. 3d 1247 (11 th Cir. 2003). Petitioner s petition for a writ of certiorari to the United States Supreme Court was denied on May 3, Turner v. Crosby, 124 S. Ct (2004). On approximately December 11, 2002, while his federal habeas corpus proceedings were pending, Petitioner filed in the circuit court a Rule motion asserting his entitlement to sentencing relief pursuant to Atkins v. Virginia, supra. 4

11 A telephonic hearing was held on April 16, 2003, and on May 2, 2003, the motion was dismissed without prejudice, due to the pendency of Petitioner s habeas corpus petition in the United States Court of Appeals. 1 On approximately November 30, 2004, the Petitioner refiled his Rule motion pursuant to Atkins, contemporaneous with the filing of a Motion for Disqualification and Memorandum of Law in Support Thereof (see Appendix 1), and a Motion for Appointment of Counsel. On February 21, 2006, an Order was entered appointing the undersigned, James C. Lohman, as counsel for Petitioner Turner. On May 19, 2006, counsel for the state of Florida, Assistant Attorney General Charmaine Millsaps, after consultation with undersigned counsel for Mr. Turner, filed an Unopposed Motion for Order Reassigning Case. (Appendix 2) On May 23, 2006, an Order Denying Defendant s Motion for Disqualification was filed by the circuit court. (Appendix 3) On June 1, 2006, an Order Denying The Unopposed Motion For Order Reassigning Case was filed by the circuit court. (Appendix 4) On June 2, 2006, after consultation with counsel for the state of Florida, Petitioner filed an Unopposed Motion for Reconsideration of Order 1 The Atkins/Rule motion was filed at that time to comply with the time limitation provisions in Florida s post conviction rules. 5

12 Denying Defendant s Motion for Disqualification. (Appendix 5) On June 16, 2006, the circuit court filed an Order Denying Unopposed Motion for Reconsideration. (Appendix 6) 2 FACTS RELIED UPON In moving for disqualification, Petitioner asserted a well-grounded fear that the trial judge would not consider his post conviction motion fairly, in particular, because the trial judge demonstrated manifest bias during an ex parte conversation with counsel for the Respondent state of Florida. The subject communication occurred immediately after a status hearing on Petitioner s Rule motion that took place on April 16, The post conviction motion, Petitioner s second, was filed after the United States Supreme Court ruled that mental retardation poses an absolute bar to the death penalty. Atkins v. Virginia, 536 U.S. 304, 122 S. Ct (2002). At the status hearing, the Court was informed that Mr. Turner s first petition for writ of habeas corpus was then-pending in the United States Court of Appeals for the Eleventh Circuit, and that oral argument was scheduled for June 2 By agreement of the parties, Petitioner s Rule motion pursuant to Atkins v. Virginia will be amended and refiled by the Petitioner as a Rule motion. 6

13 16, Accordingly, the Court denied the Rule motion without prejudice on May 2, 2003, to allow for the conclusion of federal habeas proceedings. Undersigned counsel appeared at the conference via telephone from his office in Austin, Texas. He was informed at some point previous to the status conference that opposing counsel would likewise be appearing by telephone. The trial judge, who was retired, utilized the chambers of the chief judge of the Fourth Circuit for the status conference. At the conclusion of the conference, Judge Southwood thanked undersigned counsel and undersigned counsel thanked the court. Counsel did not immediately hang up the telephone, however, but waited for opposing counsel to sign off. Counsel overheard the muted voices of the judge and unidentified court personnel, and then undersigned counsel heard the judge and opposing counsel engage in a several-minute conversation about the Petitioner s case that counsel would characterize, respectfully, as an ex parte communication. The communication consisted of approximately the following: Judge Southwood expressed surprise to have learned during the status conference that Mr. Turner s first round of post conviction proceedings was still pending in federal court. Counsel for the state informed the judge that the case had been in front of United States District Judge Schlesinger for eight or nine years, and that 7

14 Judge Schlesinger eventually ordered further briefing, due to the fact that the case had sat for so long, before denying the habeas petition. This comment was followed by laughter, after which Judge Southwood stated that his clerk had told him Mr. Turner s case was about the oldest case on Florida s death row. 3 The conversation continued, but inaudibly. Then, undersigned counsel overheard Judge Southwood and counsel for Respondent discuss the nature of the issues that were then-pending in Petitioner s case in the U.S. Court of Appeals for the Eleventh Circuit. Counsel for Respondent informed the judge that the primary issues were ineffective assistance of counsel and a claim predicated on Ring v. Arizona [536 U.S. 584 (2002)]. There was then a barely audible conversation about the strength of the ineffective assistance of counsel claim. Counsel for Respondent stated something to the effect that she had heard that trial counsel was known as a good lawyer. Judge Southwood expressed that he was not familiar with Ring or the issues involved. Counsel for Respondent stated that Ring had to 3 It is worth noting, as was presented below in the Motion for Disqualification, that according to the Florida Department of Corrections website, as of June 10, 2004, there were seventy-eight (78) Florida death row inmates who have been on death row longer than Mr. Turner, including seven (7) Duval County cases. See /activeinmates/deathrowroster.asp 8

15 do with juries and Judge Southwood tried to recollect what the jury vote had been in Mr. Turner s penalty phase. At that point, telephone contact was abruptly terminated. Undersigned counsel attempted to call back to the chief judge s chambers for three or four minutes, but the line was busy. Finally, the undersigned was able to reach the chief judge s chambers and make contact again with Judge Southwood. Counsel asked the judge whether counsel for the state was still on the line, to which the judge responded that counsel was right outside his office which is when the undersigned became aware for the first time that opposing counsel had appeared in person rather than by telephone. Undersigned counsel requested that the judge ask her to join us. Judge Southwood stated that he would check whether counsel for the state was still there. Judge Southwood informed the undersigned that the court reporter had already departed. Undersigned counsel then informed Judge Southwood and opposing counsel that he had overheard what he considered, respectfully, to be an improper ex parte communication between them after the status conference had formally and officially concluded. Judge Southwood commented, I guess we didn t hang up. Undersigned counsel does not know what else was discussed between Judge 9

16 Southwood and counsel for the state in addition to the matters described above. Portions of the conversation were inaudible, and undersigned counsel s telephone contact was cut off during the ex parte discussion between the judge and the Assistant Attorney General. Counsel did overhear improper ex parte comments about trial counsel s purported reputation as a good lawyer and comments bemoaning the length of time the case has been pending. Counsel has no way to know whether other improper communication occurred during the portions of the conversation that were either inaudible or that occurred after telephone contact was abruptly terminated. Mr. Turner thus had a reasonable basis for questioning the judge s impartiality. Judge Southwood was overheard expressing his displeasure that Mr. Turner s case is about the oldest case on death row. Irrespective of the inaccuracy of the judge s disparaging comment, the sentiment expressed led Mr. Turner reasonably to believe that the judge is unhappy that Mr. Turner s case is still in litigation and that Mr. Turner has not been executed. Mr. Turner thus had a reasonable basis for believing he will not receive fair and impartial consideration from Judge Southwood on his Rule motion seeking the sentencing relief required by the United States Supreme Court in Atkins. Accordingly, Mr. Turner 10

17 moved for disqualification contemporaneously with his refiled Rule Motion on November 30, On May 23, 2006, nearly eighteen months after his disqualification motion was filed, the trial judge filed an Order Denying Defendant s Motion for Judicial Disqualification. (Appendix 3) The order denying disqualification was filed four days after counsel for the state of Florida submitted and served its Unopposed Motion for Order Reassigning Case, invoking the provision of Rule of Judicial Administration 2.160(j) that a motion for disqualification shall be deemed granted if not ruled on within 30 days of service. (Appendix 2) The unopposed motion for reassignment was denied. (Appendix 4) 4 In his motion for disqualification, Mr.Turner recited many examples of the trial court s refusal to acknowledge the undeniable presence of mental health issues in this case, at trial and in post conviction, despite an enormous amount of unrebutted documentation and evidence (e.g., Baker Act records, eyewitnesses accounts of serious mental illness by a litany of disinterested professionals, IQ of 72, severe totally disabling and fatal genetic brain damage in two siblings, to mention but a few items.) The judge s refusal to consider such evidence and his significant misstatements concerning it are discussed in the Motion for Judicial Disqualification, Appendix 1, pp Petitioner does not contend that the judge s previous pattern of disregard for Petitioner s mental illness necessarily renders the judge incapable of fairly considering his subsequent Atkins-based motion. He suggests, however, that this history tends to exacerbate his reasonable and legally sufficient apprehension deriving from the judge s ex parte expression of hostility to the longevity of Petitioner s post conviction proceedings. 11

18 Petitioner moved for reconsideration of the circuit court s order denying disqualification, and on June 16, 2006, the court filed its Order Denying The Unopposed Motion for Reconsideration of Order Denying Defendant s Motion for Disqualification. (Appendix 6) STANDARD OF REVIEW An order denying a motion to disqualify is reviewable de novo, as the determination whether the motion was legally sufficient under Rule 2.160(f) is a pure question of law. Mackenzie v. Super Kids Bargain Store, 565 So. 2d 1332, 1335 (Fla. 1990). 12

19 ARGUMENT I. IMPROPER EX PARTE COMMUNICATIONS. With specific limited exceptions: A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding... Canon 3B(7), Code of Judicial Conduct. The Commentary to Canon 3 makes clear that the only exceptions to the prohibition against ex parte communications are contacts that concern purely administrative matters or that occur in the case of emergencies : Certain ex parte communication is approved by Section 3B(7)(b) to facilitate scheduling and other administrative purposes and to accommodate emergencies. In general, however, a judge must discourage ex parte communication and allow it only if all the criteria stated in 3B(7) are clearly met. Commentary to Canon 3, Code of Judicial Conduct. (Italics added.) Here, it is patently beyond dispute that none of the criteria are met. 5 5 The limited enumerated permissible purposes of ex parte communications are: (a) for scheduling, administrative purposes or emergencies; (b) to obtain the advice of a disinterested expert with notice to the parties and opportunity to respond; (c) to consult with other judges or court personnel whose function is to aid the judge in carrying out the judge s adjudicative responsibilities; (d) to confer, with the 13

20 Similarly, the Rules of Professional Conduct that govern the behavior of attorneys prohibit ex parte communications unless four specific conditions are met: Communication with judge or official. In an adversary proceeding a lawyer shall not communicate or cause another to communicate as to the merits of the cause with a judge or an official before whom the proceeding is pending except: (1) in the course of the official proceeding in the cause; (2) in writing if the lawyer promptly delivers a copy of the writing to opposing counsel... ; (3) orally upon notice to opposing counsel... ; or (4) as otherwise authorized by law. Rule 4-3.5(b), Rules of Professional Conduct. The discussion between Judge Southwood and counsel for the state of Florida violated the provisions of both the Code of Judicial Conduct and the Rules of Professional Conduct. The communications were distinctly not about administrative or scheduling matters and were conducted without any notice to counsel for Mr. Turner. It was only a matter of happenstance that Mr. Turner s counsel overheard the improper communications. As the judge noted, the consent of the parties, in an effort to mediate or settle a pending matter; (e) when expressly authorized by law. 14

21 court inadvertently didn t hang up at the conclusion of the status conference and the discussion between the judge and counsel for the state ensued. The ex parte communications in question here included substantive discussion between Judge Southwood and counsel for the state of Florida concerning legal issues in Mr. Turner s case. Mr. Turner s state and federal post conviction challenges consisted largely of allegations of ineffective legal representation by his trial counsel. Therefore, state counsel s statement to Judge Southwood that she heard trial counsel was known as a good lawyer, related directly to the merits of a central legal issue in Mr. Turner s case. 6 Ex parte, offthe-record assertions addressed to the tribunal by counsel for one party are not an appropriate or legally acceptable method for communicating with a judicial decision-maker. The advocate s function is to present evidence and argument so that the cause may be decided according to law. Comment to Rule 4-3.5, Rules of Professional Conduct. 6 The motion for disqualification noted a further apprehension on the part of Petitioner due to trial counsel s contribution of $ to Judge Southwood s reelection campaign in 1990, shortly before claims of counsel s ineffectiveness were filed and summarily denied by Judge Southwood. 15

22 It is likewise inappropriate and improper for a judge and counsel for one party in a law suit to engage in jocular conversation about their mutual displeasure over the length of time a matter has been pending in particular where the defendant s very life is at stake as occurred here in the ex parte communication between Judge Southwood and counsel for the state. For purposes of the instant motion, the issue is not whether the ex parte communication between Judge Southwood and counsel for the state of Florida violated the law and/or professional ethics or whether sanctions are called for. The issue, for purposes of Petitioner s motion for disqualification, was whether Judge Southwood s evident willingness to participate in a one-sided discussion of substantive issues in Mr. Turner s case with counsel for the state, without requisite notice to Mr. Turner s counsel, and the judge s expression of displeasure that Mr. Turner is, in effect, still alive, raises a reasonable question in Mr. Turner s mind as to Judge Southwood s impartiality in this case. II. LEGAL STANDARDS FOR JUDICIAL DISQUALIFICATION Mr. Turner has a reasonable fear that he will not receive fair proceedings before Judge Southwood because of the aforementioned circumstances. The facts alleged in this motion are "sufficient to warrant fear on [Mr. Turner s] part that he 16

23 would not receive a fair hearing by the assigned judge." Suarez v. State, 527 So. 2d 190, 192 (Fla. 1988). Because of Judge Southwood s ex parte communications with counsel for the state, "a shadow is cast upon judicial neutrality so that disqualification is required." Chastine v. Broome, 629 So. 2d 293, 295 (Fla. 4th DCA 1993). The disqualification rules mandate that a judge avoid even the appearance of impropriety: It is the established law of this State that every litigant, including the State in criminal cases, is entitled to nothing less than the cold neutrality of an impartial judge. It is the duty of the court to scrupulously guard this right of the litigant and to refrain from attempting to exercise jurisdiction in any manner where his qualification to do so is seriously brought into question. The exercise of any other policy tends to discredit and place the judiciary in a compromising attitude which is bad for the administration of justice. Crosby v. State, 97 So.2d 181 (Fla. 1957); State ex rel. Davis v. Parks, 141 Fla. 516, 194 So. 613 (1939); Dickenson v. Parks, 104 Fla. 577, 140 So. 459 (1932); State ex rel. Mickle v. Rowe, 100 Fla. 1382, 131 So. 331 (1930). * * * The prejudice of a judge is a delicate question for a litigant to raise but when raised as a bar to the trial of a cause, if predicated on grounds with a modicum of reason, the judge in question should be prompt to recuse himself. No judge under any circumstances is warranted in sitting in the trial of a cause who neutrality is shadowed or even questioned. Dickenson v. Parks, 104 Fla. 577, 140 So. 459 (1932); State ex rel. Aguilar v. Chappell, 344 So.2d 925 (Fla. 3d DCA 1977). (Emphasis added.) 17

24 State v. Steele, 348 So. 2d 398 (Fla. 3d DCA 1977). Mr. Turner is entitled to full and fair Rule proceedings, including the fair determination of the issues by a neutral, detached judge. Holland v. State, 503 So. 2d 1250 (Fla. 1987); Easter v. Endell, 37 F. 3d 1343 (8th Cir. 1994) The aforementioned circumstances of this case are of such a nature that they are "sufficient to warrant fear on [Mr. Turner s] part that he would not receive a fair hearing by the assigned judge." Suarez v. Dugger, 527 So. 2d 191, 192 (Fla. 1988). The proper focus of this inquiry is on "matters from which a litigant may reasonably question a judge's impartiality rather than the judge's perception of his [or her] ability to act fairly and impartially." Livingston v. State, 441 So. 2d 1083, 1086 (Fla. 1983); Chastine v. Broome, 629 So. 2d 293, 294 (Fla. 4th DCA 1993). In capital cases, the trial judge "should be especially sensitive to the basis for the fear, as the defendant's life is literally at stake, and the judge's sentencing decision is in fact a life or death matter." Livingston, 441 So. 2d at Canon 3E of the Florida Code of Judicial Conduct and Rule of the Florida Rules of Judicial Administration mandate that a judge disqualify him or herself in any proceeding "in which the judge's impartiality might reasonably be questioned," including but not limited to instances where the judge has a personal 18

25 bias or prejudice concerning a party or a party's lawyer, personal knowledge of disputed evidentiary facts concerning the proceeding, or where the judge has been a material witness concerning the matter in controversy. Fla. Code Jud. Conduct, Canon 3E(1)(a) & (b); Fla. R. Jud. Admin (d)(1) & (2). The situation in this case mandates recusal. Because Petitioner s motion was legally sufficient, the judge should not have considered the facts of the motion; he should have taken no action other than reassigning the case. Fla. R. Jud. Admin (f)("[i]f the motion is legally sufficient, the judge shall immediately enter an order granting disqualification and proceed no further in the action."); Sec , Fla. Stat. (1995) (if the motion is legally sufficient the judge shall proceed no further ); see also Lake v. Edwards, 501 So. 2d 759, 760 (Fla. 5th DCA 1987) (holding that ruling on a motion for new trial is an action "further" to the filing of a motion to and therefore improper). Florida courts have repeatedly held that where a movant meets these requirements and demonstrates, on the face of the motion, a basis for relief, a judge who is presented with a motion for disqualification "shall not pass on the truth of the facts alleged nor adjudicate the question of disqualification." Suarez v. Dugger, 527 So. 2d 191 (Fla. 1988). Livingston v. State, 441 So. 2d 1083 (Fla. 1983); Bundy v. 19

26 Rudd, 366 So. 2d 440 (Fla. 1978); Digeronimo v. Reasbeck, 528 So. 2d 556 (Fla. 4th DCA 1988); Ryon v. Reasbeck, 525 So. 2d 1025 (Fla. 4th DCA 1988); Fruhe v. Reasbeck, 525 So. 2d 471 (Fla. 4th DCA 1988); Lake v. Edwards, 501 So. 2d 759 (Fla. 5th DCA 1987); Davis v. Nutaro, 510 So. 2d 304 (Fla. 4th DCA 1986); ATS Melbourne, Inc. v. Jackson, 473 So. 2d 280 (Fla. 5th DCA 1985); Gieseke v. Moriarty, 471 So. 2d 80 (Fla. 4th DCA 1985); Management Corp. v. Grossman, 396 So. 2d 1169 (Fla. 3rd DCA 1981). See also Chastine v. Broome, 629 So. 2d 293 (Fla. 4th DCA 1993). To establish a basis for relief a movant: need only show "a well grounded fear that he will not receive a fair trial at the hands of the judge. It is not a question of how the judge feels; it is a question of what feeling resides in the affiant's mind and the basis for such feeling." State ex rel. Brown v. Dewell, 131 Fla. 566, 573, 179 So. 695, (1938). See also Hayslip v. Douglas, 400 So. 2d 553 (Fla. 4th DCA 1981). The question of disqualification focuses on those matters from which a litigant may reasonably question a judge's impartiality rather than the judge's perception of his ability to act fairly and impartially. Livingston, 441 So. 2d at 1086 (emphasis added). The Fourth District Court of Appeals also emphasized that in a capital case like Mr. Turner s, judges "should be especially sensitive to the basis for the fear, as the defendant's life is literally at stake, and the judge's sentencing decision is in fact a life or death matter." 20

27 Chastine v. Broome, 629 So. 2d 293, 294 (Fla. 4th DCA 1993)(quoting Livingston, 441 So. 2d at 1087). The United States Supreme Court has also recognized the basic constitutional precept of a neutral, detached judiciary: The Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases. This requirement of neutrality in adjudicative proceedings safeguards the two central concerns of procedural due process, the prevention of unjustified or mistaken deprivations and the promotion of participation and dialogue by affected individuals in the decision making process. See Carey v. Piphus, 435 U.S. 247, , , 98 S.Ct. 1042, 1043, , 1053, 1054, 55 L.Ed.2d 252, (1978). The neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law. See Matthews v. Eldridge, 424 U.S. 319, 344, 96 S.Ct. 893, 907, 47 L.Ed.2d 18 (1976). At the same time, it preserves both the appearance and reality of fairness, "generating the feeling, so important to a popular government, that justice has been done," Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123, 172, 71 S.Ct. 624, 649, 95 L.Ed. 817 (1951)(Frankfurter, J., concurring), by ensuring that no person will be deprived of his interests in the absence of a proceeding in which he may present his case with assurance that the arbiter is not predisposed to find against him. Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980). The Eleventh Circuit Court of Appeals explained recently: The Commentary to Canon 3E(1) [Code of Judicial Conduct] provides that a judge should disclose on the record information which the judge believes the parties or their lawyers might consider relevant to the question of disqualification. We conclude that both litigants and attorneys should be able to rely upon judges to comply with their own Canons of Ethics. A 21

28 contrary rule would presume that litigants and counsel cannot rely upon an unbiased judiciary, and that counsel, in discharging their Sixth Amendment obligation to provide their clients effective professional assistance, must investigate the impartiality of the judges before whom they appear. Such investigations, of course, would undermine public confidence in the judiciary and hinder, if not disrupt, the judicial process -- all to the detriment of the fair administration of justice. Porter v. Singletary, 49 F.3d 1483, 1489 (11th Cir. 1995). Due process guarantees the right to a neutral, detached judiciary in order "to convey to the individual a feeling that the government has dealt with him fairly, as well as to minimize the risk of mistaken deprivations of protected interests." Carey v. Piphus, 435 U.S. 247, 262 (1978). The United States Supreme Court has explained that in deciding whether a particular judge cannot preside over a litigant's trial: the inquiry must be not only whether there was actual bias on respondent's part, but also whether there was "such a likelihood of bias or an appearance of bias that the judge was unable to hold the balance between vindicating the interests of the court and the interests of the accused." Ungar v. Sarafite, 376 U.S. 575, 588, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964). "Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties," but due process of law requires no less. In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955). Taylor v. Hayes, 418 U.S. 488, 501 (1974). 22

29 The appearance of impropriety violates state and federal constitutional rights to due process. A fair hearing before an impartial tribunal is a basic requirement of due process. In re Murchison, 349 U.S. 133 (1955). "Every litigant[] is entitled to nothing less than the cold neutrality of an impartial judge." State ex rel. Mickle v. Rowe, 131 So. 331, 332 (Fla. 1930). Absent a fair tribunal there is no full and fair hearing. Suarez teaches that even the appearance of impartiality is sufficient to warrant reversal. In capital cases, judicial scrutiny must be more stringent than it is in noncapital cases. The impartiality of the judiciary is particularly important in "this first-degree murder case in which [Mr. Turner s] life is at stake and in which the circuit judge's sentencing decision is so important." Livingston v. State 441 So. 2d 1083, 1087 (1983). III. THE LOWER COURT S ERRONEOUS RULING THAT PETITIONER S MOTION FOR JUDICIAL DISQUALIFICATION WAS UNTIMELY FILED In denying Petitioner s motion for disqualification, the lower court erroneously found the motion to be untimely because it was not filed within ten days of discovery of the facts constituting the grounds for the motion. Ten days from the discovery of the facts (i.e., the court s ex parte comments to counsel 23

30 for the state of Florida during the status conference on April 16, 2003), there was no action pending. There was no case before the court. The court had already ruled orally on April 16, 2003, that Petitioner s Rule 3.850/Atkins motion was dismissed without prejudice because of Petitioner s then-pending habeas corpus proceedings in federal court. It was not until Petitioner s Rule 3.850/3.203 motion was refiled on November 30, 2004, that any action in the lower court commenced. Petitioner diligently filed his Motion for Judicial Disqualification on that very same date, contemporaneous with the filing of his post conviction Rule 3.850/3.203 Atkins motion contemporaneous with the commencement of the legal cause in question. Petitioner could not have filed for disqualification any earlier than that. Petitioner acted with the utmost diligence in filing for disqualification the very day that his post conviction litigation commenced. To require Petitioner to have moved for disqualification prior to the filing of the post conviction motion that initiated the proceedings below would be entirely unreasonable and inefficient, since there would have been no case for the judge to disqualify himself from. Reversal by this Court is necessary to correct the lower court s error. 24

31 IV. THE LOWER COURT S VIOLATION OF THE 30-DAY PROVISION OF RULE 2.160(j), FLA. R. JUD. ADMIN. Petitioner s Motion for Judicial Disqualification was filed on or about November 30, Nearly eighteen months later, counsel for the Respondent state of Florida, after consultation with undersigned counsel for Petitioner, filed an Unopposed Motion for Order Reassigning Case, citing Rule (j), Fla. R. Jud. Admin. Within days of the filing of the Unopposed Motion, the trial judge denied the motion for disqualification. Rule 2.160(j) provides that a motion for judicial disqualification must be ruled on within 30 days or the motion shall be deemed granted. Because the lower court failed to comply with the 30-day provision, the motion should have been deemed granted. RELIEF SOUGHT 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 3.850/Atkins. 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. 25

32 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) Fax (512) COUNSEL FOR PETITIONER 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 14 day of July, Attorney 26