SUPREME COURT OF FLORIDA

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1 Filing # E-Filed 04/01/ :27:12 PM IN THE SUPREME COURT OF FLORIDA IN RE: AMENDMENTS TO THE FLORIDA RULES OF CRIMINAL PROCEDURE. Case No. SC RECEIVED, 04/01/ :28:47 PM, Clerk, Supreme Court COMMENTS OF THE FLORIDA ASSOCIATION OF CRIMINAL DEFENSE LAWYERS The Florida Association of Criminal Defense Lawyers ( FACDL ) submits the following comments relating to the proposed amendment to Rule FACDL opposes the proposed amendment to Rule that would allow prosecutors to substitute their experience prosecuting cases for the required experience defending cases. FACDL maintains that an attorney s experience as a prosecutor simply cannot substitute for actually defending capital cases and would be in conflict with the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (rev. ed. Feb. 2003), 31 Hofstra L. Rev. 913 (2003) (hereinafter ABA Guidelines). The objective of the ABA Guidelines was to set forth a national standard of practice for the defense of capital cases in order to ensure high quality legal representation for all persons facing the possible imposition or execution of a death

2 sentence by any jurisdiction. ABA Guidelines at 919. Indeed, the Supreme Court of the United States has repeatedly acknowledged the ABA Guidelines as authoritative in matters concerning representation of persons facing the death penalty. Wiggins v. Smith, 539 U.S. 510 (2003); Rompilla v. Beard, 545 U.S. 374 (2005). The ABA Guidelines specifically address the qualifications of defense counsel in capital cases. ABA Guideline 5.1 at 961. Two of the requirements stand out when considering the amendment to Rule These requirements are that the capital defense attorney should have a demonstrated commitment to providing zealous advocacy and high quality legal representation in the defense of capital cases, and, that the capital defense attorney should have demonstrated their skill in the investigation, preparation, and presentation of mitigating evidence. ABA Guidelines at The American Bar Association in its report entitled, Evaluating Fairness and Accuracy in State Death Penalty Systems: The Florida Death Penalty Assessment Report, reviewed Rule and stated: The qualification standards contained in rule differ for trial attorneys and appellate attorneys and for lead trial counsel and co-counsel, but apply to all attorneys handling death penalty cases at trial and on appeal, including public defenders and private court appointed attorneys. Private court-appointed attorneys must personally certify that they meet the qualification requirements and the public defender must certify on 2

3 behalf of the designated assistant public defenders that each attorney meets the qualification requirements. As required by Guideline 5.1, rule relies not only on quantitative measures of experience to determine whether an attorney is qualified to serve as lead trial counsel or co-counsel, or appellate counsel, but it also requires these attorneys to have demonstrated the necessary proficiency and commitment which exemplify the quality of representation appropriate to capital cases. Rule requires all attorneys handling death penalty cases at trial and on appeal to perform at the level of an attorney reasonably skilled in the specialized practice of capital representation, zealously committed to the capital case. Rule also contains specific qualification requirements for lead trial counsel and co-counsel and appellate counsel. The qualification requirements for lead trial counsel are more expansive than the requirements for co-counsel at trial and lead counsel on appeal, but still only include some of the requirements contained in Guideline 5.1. For example, in addition to requiring a certain number of years of experience and a demonstrative proficiency level, rule requires lead trial attorneys to be members of The Florida Bar, be familiar with the practice and procedure of the criminal courts of the jurisdiction, and be familiar with and experienced in the utilization of expert witnesses and evidence, including but not limited to psychiatric and forensic evidence. However, rule does not require lead trial attorneys to have demonstrated skills in all of the areas contained in Guideline 5.1, such as legal research, analysis and writing. The training required by rule also falls short of the requirements of Guideline 5.1 (which will be discussed in detail under Recommendation #5). Given that the qualification 3

4 requirements are more expansive for lead trial counsel than for co-counsel at trial and lead appellate counsel, rule also does not require these attorneys to have demonstrated skills in all of the areas contained in Guideline 5.1. Id. at (footnotes omitted). FACDL agrees with the ABA that Rule 3.112, as currently constituted, addresses the ABA Guidelines at only their most basic level. Rule 3.112(f)(3) details the experience required of lead counsel and Rule 3.112(g)(2) details the experience required of co-counsel to handle the second phase of the death penalty trial. FACDL believes these bare minimum requirements should not be amended. Experience as a prosecutor should not count towards satisfying these requirements as such experience clearly does not demonstrate a zealous commitment to the defense of capital cases, nor does prosecution experience develop/demonstrate skill in the investigation, preparation, or presentation of mitigating evidence. To even identify mitigating evidence requires significant training and experience. Much of this experience involves the interplay between the art of interviewing a client and the knowledge of the cues to look for to identify mitigation such as brain damage, retardation, mental illness and the like. The prosecution function simply does not provide that kind of experience. Furthermore, former prosecutors also need to have demonstrated an ability 4

5 to build the types of relationships with clients that allow that client to share the most intimate details of their life with them; but well beyond that, the capital defense attorney then must convince that client to allow those details to be presented in the most public of forums and be subject to the ridicule of the prosecution, the press, and the general public. This relationship is difficult at best for even the most seasoned capital defense attorney and even more highly unlikely for the prosecutor who does not have the requisite experience as a criminal defense attorney, much less a capital defense attorney. Prosecutors have been trained to diminish, downplay, and criticize mitigating evidence as a series of lame or contrived excuses presented during a capital case. As capital defense counsel, training and experience have been completely the opposite. FACDL surely does not take the position that former prosecutors cannot eventually qualify as capital defense counsel. Many FACDL members and colleagues have become excellent capital defense attorneys. FACDL simply takes the position that the proposed amendment would not require former prosecutors to demonstrate their commitment to zealous criminal defense advocacy or acquiring the requisite skills necessary to identify, investigate, prepare, and present mitigating evidence. 5

6 CERTIFICATE OF SERVICE I HEREBY CERTIFY a true and correct copy of the foregoing has been furnished by delivery this first (1st) day of April, 2015, to: Hon. Samantha Ward wardsl@fljud13.org Heather Telfer htelfer@flbar.org Abraham Laeser abe@laeser.us Respectfully submitted, /s/luke Newman Luke Newman, PA Fla. Bar No Thomasville Road Tallahassee, Florida ph: (850) fax: (850) luke@lukenewmanlaw.com /s/william R. Ponall Snure & Ponall P.A. Fla. Bar No W. New England Avenue, Ste 200 Winter Park, Florida ph: (407) fax: (407) ponallb@criminaldefenselaw.com Attorneys for FACDL 6