IN THE SUPREME COURT OF FLORIDA

Filing # 25492816 E-Filed 03/30/2015 05:10:59 PM IN THE SUPREME COURT OF FLORIDA IN RE: AMENDMENTS TO THE FLORIDA RULES OF CRIMINAL PROCEDURE CASE NO.: SC15-177 COMMENTS FROM THE FLORIDA PUBLIC DEFENDER ASSOCIATION REGARDING PROPOSED AMENDMENT TO FLORIDA RULE OF CRIMINAL PROCEDURE 3.112 RECEIVED, 03/30/2015 05:13:38 PM, Clerk, Supreme Court The Florida Public Defender Association opposes the proposed amendment of Florida Rule of Criminal Procedure 3.112 that would allow prosecutors who have prior experience in serious or complex cases as lead counsel or co-counsel in at least two state or federal cases tried to completion in which the death penalty was sought to substitute that experience and participate as lead counsel. There are primarily two reasons for this opposition. First, there is no demonstrated need for such an amendment based on the foundation of the rule s original adoption and its evolution. Second, given the underpinning that supports the American Bar Association s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, such an amendment would be imprudent. History, Context, & Need In order to properly appreciate amending Fla. R. Crim. P. 3.112, one should first review its history. In 1997 the Florida Supreme Court established the Committee on Minimum Standards for Attorneys in Capital Cases to study and 1

recommend for the Court s review minimum standards to ensure the competency of court-appointed counsel in death penalty cases. 1 Proposals for standards were drafted, published, comments received by the Court, and an oral argument was held. 2 In 1998 the Court considered a proposed rule 3 but deferred consideration of the issue pending a legislative study. 4 In 1999, after receiving the unanimous recommendation, for the Court to address the issue from a legislative study commission the Court did adopt standards for lawyers in capital cases. 5 When adopting Rule 3.112 in 1999, this Court stated: Under our procedural and adversarial system of justice, the quality of lawyering is critical. For that reason, trial judges responsible for the appointment of counsel in cases where the very life of the defendant is at risk must take care to appoint well-qualified lawyers.. This Court has an inherent and fundamental obligation to ensure that lawyers are appointed to represent indigent capital defendants who possess the experience and training necessary to handle the complex and difficult issues inherent in death penalty cases. This Court, over the years, has reviewed countless ineffective assistance of counsel claims alleging incompetence of counsel at both the trial and appellate levels. 6 1 In re Amendment to Florida Rules of Criminal Procedure-Rule 3.112 Minimum Standards for Attorneys in Capital Cases, 820 So.2d 185 (Fla. 2002). 2 Id. at 185. 3 In re Amendment to Florida Rules of Criminal Procedure-Rule 3.112 Minimum Standards for Attorneys in Capital Cases, 759 So.2d 610, 611 (Mem) (Fla. 1999). 4 In re Amendment to Florida Rules of Judicial Administration-Minimum Standards for Appointed Counsel in Capital Cases, 711 So.2d 1148 (Mem) (Fla. 1998). 5 In re Amendment to Florida Rules of Criminal Procedure-Rule 3.112 Minimum Standards for Attorneys in Capital Cases, at 759 So.2d 611. 6 In re Amendment to Florida Rules of Criminal Procedure-Rule 3.112 Minimum Standards for Attorneys in Capital Cases, at 759 So.2d 613-14. 2

The Court has since adopted several amendments that dealt with extending coverage to private counsel, 7 expanding coverage to the five Offices of Criminal Conflict and Civil Regional Counsel, 8 and extending the rule s coverage to include postconviction counsel. 9 At the beginning of this process, Based on ongoing concerns as to the quality of the judicial process in capital cases, [the] Court in 1997 appointed a select committee of highly qualified and experienced judges and lawyers to study and recommend for review minimum standards to ensure the competency of courtappointed lawyers in capital cases. 10 The select committee considered the issue of allowing lawyers to substitute prosecutorial experience for defense experience as proposed in this amendment. Carey Haughwout, the elected Public Defender for the Fifteenth Judicial Circuit, recently recalled that during committee meetings (w)e specifically discussed if the experience (requirement) should be limited to defense attorneys. [And] (w)e all agreed that it should be limited to exclude the experience of prosecutors. 11 J. Marion Moorman, 12 another noted select committee member, 7 In re Amendment to Florida Rules of criminal Procedure-Rule 3.112 Minimum Standards for Attorneys in Capital Cases, 820 So.2d 185 (Mem) (Fla. 2002). 8 In re Amendments to Florida Rule of Criminal Procedure 3.112-Minimum standards for Attorneys in Capital Cases, 3 So.3d 1175 (Mem) (Fla. 2009); In re Amendments to Florida Rule of Criminal Procedure 3.112-Minimum Standards for Attorneys in Capital Cases, 993 So.2d 501 (Mem) (Fla. 2008). 9 In re: Amendments to the Florida Rules of Judicial Administration; the Florida Rules of Criminal Procedure; and the Florida Rules of Appellate Procedure Capital Postconviction Rules, 39 Fla. L. Weekly S467 (Fla. July 3, 2014). 10 In re Amendment to Florida Rules of Criminal Procedure-Rule 3.112 Minimum Standards for Attorneys in Capital Cases, at 759 So.2d 612. 11 Interview with the Hon. Carey Haughwout regarding the proposed amendment held on August 7, 2014, by Peter Mills, Assistant Public Defender. 3

concurred with this position. 13 One of the reasons the select committee chose not to include the experience of a prosecutor as a substitute for the experience of a defense attorney was that functions of the two positions do not mirror each other. 14 The two jobs differ greatly. Ms. Haughwout explained that the differences are simply understood. The building of bonds with a client and a client s family (and) the development of mitigation that s all very different from tearing it down as a prosecutor. 15 Further, Ms. Haughwout noted that currently there is no demonstrated need for expanding the pool of lawyers defending people facing capital charges to include former prosecutors. 16 There s no shortage of defense attorneys willing to take these cases, she said. 17 The intended impact of the Florida Supreme Court s adoption of the rule and its amendment has surely been about quality and not quantity. By adopting amendments that extended coverage to additional classes of lawyers the Court did not increase the number of available lawyers, but decreased the number. 18 The initial 12 Then serving as the elected Public Defender of the Tenth Judicial Circuit 13 Interview with J. Marion Moorman regarding the proposed amendment held on August 4, 2014, by Peter Mills, Assistant Public Defender. 14 Interview with the Hon. Carey Haughwout continued. 15 Id. 16 Id. 17 Id. 18 In re: Amendments to the Florida Rules of Judicial Administration; the Florida Rules of Criminal Procedure; and the Florida Rules of Appellate Procedure Capital Postconviction Rules, 39 Fla. L. Weekly S467 (Fla. July 3, 2014).; In re Amendments to Florida Rule of Criminal Procedure 3.112-Minimum standards for Attorneys in Capital Cases, 3 4

adoption of the rule was considered an important step in ensuring the integrity of the judicial process in capital cases by adopting a rule of criminal procedure to help ensure that competent representation will be provided to indigent capital defendants in all cases. 19 There has been no reasonable claim or demonstration that adopting this amendment will promote or assist in ensuring the integrity of the judicial process. There are legitimate concerns that eliminating a requirement of experience as defense counsel in capital trials from the qualifications for lead capital defense counsel would similarly undercut the standards. In its mandatory review of evidentiary sufficiency and sentence proportionality under 921.141(4), Florida Statutes, and Florida Rule of Appellate Procedure 9.142(1)(5), this Court requires a vigorous trial and penalty phase presentation from both the prosecution and defense. Only then can the Court determine whether the penalty has been imposed for the most aggravated and least mitigated of murders. 20 The level of investigation, preparation, and advocacy necessary to adhere to this principle cannot be guaranteed if counsel has experience only as a prosecutor without first serving as defense cocounsel in at least two capital cases. So.3d 1175 (Mem) (Fla. 2009); In re Amendments to Florida Rule of Criminal Procedure 3.112-Minimum Standards for Attorneys in Capital Cases, 993 So.2d 501 (Mem) (Fla. 2008); In re Amendment to Florida Rules of criminal Procedure-Rule 3.112 Minimum Standards for Attorneys in Capital Cases, 820 So.2d 185 (Mem) (Fla. 2002). 19 In re Amendment to Florida Rules of Criminal Procedure-Rule 3.112 Minimum Standards for Attorneys in Capital Cases, at 759 So.2d 611. 20 Silvia v. State, 60 So. 3d 959, 973 (Fla. 2011). 5

Development and presentation of mitigation are particularly imperiled by the committee s proposal. Rule 3.112(f)(6) requires that lead capital defense counsel have demonstrated the necessary proficiency and commitment which exemplify the quality of representation appropriate to capital cases, including but not limited to the investigation and presentation of evidence in mitigation of the defense penalty. 21 An attorney whose only capital experience is as a prosecutor cannot demonstrate proficiency in investigating and presenting capital mitigation. This experience is crucial in learning to develop the skill in cultivating relationships with defendants and their families that lead to disclosure of underlying dysfunction, addiction, mental illness, and abuse at the heart of capital mitigation. The Court considered but did not adopt methods to enlarge the pool of available attorneys. In 2002 the Florida Supreme Court rejected the idea of a grandfather clause, which would have granted exemptions to many lawyers, because of a fear that such an exception would totally undercut the new standards. 22 At that time, the Court also noted that it might consider a suggestion that a subdivision be added to allow for the substitution of judicial law clerk or staff attorney experience for one or more of the requirements of the standards 23 but never permitted any such substitution. 21 Fl. R. Crim. P. 3.112(f)(6). (Emphasis supplied). 22 Id. at 193. 23 In re Amendment to Florida Rules of Criminal Procedure-Rule 3.112 Minimum Standards for Attorneys in Capital Cases, at 820 So.2d 194. 6

Adopting the proposed amendment would not assist in enhancing the quality of representation of capital defendants or the integrity of the judicial process. ABA Guidelines The ABA promulgated guidelines to remedy the systemic problem of subpar representation in capital cases. 24 The United States Supreme Court has repeatedly referred to the ABA guidelines as guides to determining what is reasonable with regard to the performance of counsel. 25 The proposed amendment to Fla. R. Crim. P. 3.112(f)(3) conflicts with numerous mandates contained within the Guidelines and should cause this Committee oppose the adoption of the proposed amendment. Death penalty cases are unique. They have become so complex and specialized that defense counsel have duties and functions definably different from those of counsel in ordinary criminal cases. 26 As such, they call for the only the most experienced, competent, and dedicated of defense attorneys. The ABA requires that a capital defense attorney demonstrate a commitment to providing zealous advocacy and high quality legal representation in the defense of capital cases. 27 This required commitment to capital defense is usually demonstrated by the 24 See 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 ). 25 Rompilla v. Beard, 545 U.S. 374, 387 (2005); Wiggins v. Smith, 539 U.S. 510, 524 (2003). 26 ABA Guidelines at 923. 27 ABA Guidelines, 5.1(B)(1)(b), at 961. 7

arc of an attorney s career. Typically, in Public Defender offices, a position on a capital defense team is only open to the most seasoned defense attorneys. This investment of years in capital defense is the commitment contemplated by the Guidelines. One would be hard pressed to imagine how an attorney could demonstrate that commitment to providing zealous advocacy and high quality legal representation in the defense of capital cases through years of death penalty prosecution. Prosecuting a death penalty case does not prepare an attorney for death penalty defense. The ABA requires that a qualified capital defender possess ample skill in the investigation, preparation, and presentation of mitigating evidence. 28 The gathering, development, and presentation of mitigation may well be the most important tasks of the defense team in a capital case. That discovery, development, and presentation of mitigation evidence often create the only barrier to the imposition of a sentence of death. A prosecutor has no training or experience whatsoever in the gathering, development, and presentation of mitigation. The prosecutor may be well-versed in challenging, minimizing, and picking apart such evidence. That does not translate into an understanding of how to effectively package the mitigation case as a cohesive whole for the jury. The effective presentation of mitigation requires delving into 28 ABA Guidelines, 5.1(B)(2)(g), at 962 (emphasis added); accord Fla. R. Crim. P. 3.112(f)(6). 8

layers and layers of the client s life and environment. As noted in Wiggins and Rompilla, the investigation and selection of mitigation requires a high level of experience. Any defense at the trial phase has to be in harmony with the mitigation case. Because of this, a defense attorney tasked with preparing for the first phase of a death penalty trial case cannot ignore mitigation and must be engaged in penalty phase issues. The Guidelines recognize that a mitigation presentation can only be persuasive if it is consistent with [the arguments and themes] made by the defense at the guilt phase. 29 Simply put, the presentation of mitigation is not a skill that the lead counsel in a death penalty case should learn on the job. Under the current rules, a former capital prosecutor could eventually become lead defense counsel after second chairing two capital defense cases. This status quo should be preserved. Attorney-Client Trust The proposed amendment raises serious concerns regarding the attorney-client relationship. In any criminal case, the defense attorney has an obligation to establish a relationship of trust and confidence with the client. 30 The importance of this obligation is heightened in death penalty cases. Recognizing the importance 29 ABA Guidelines at 927. 30 ABA Standards for Criminal Justice 4 3.1 (3d ed. 1993). 9

of attorney-client trust in capital cases, the ABA mandates that counsel should make every appropriate effort to establish a relationship of trust with the client. 31 Earning a client s trust is especially difficult in a capital case. There is a natural resistance to disclosing often personal and painful facts necessary to present an effective penalty phase defense. 32 To fully and effectively prepare for the penalty phase, defense counsel needs to intimately know the most personal facets of the client s life. Conversations about prior sexual abuse, physical abuse, family dysfunction, drug addiction, and mental deficits are staples of preparing for a death penalty case. These conversations will only be fruitful if the defense team has carefully cultivated a relationship of trust with the client. Furthermore, defendants facing the death penalty are differently situated than those accused of lesser crimes. Many of those facing capital punishment are severely impaired in ways that make effective communication difficult: they may have mental illnesses or personality disorders that make them highly distrustful. 33 The ABA has gone as far to note that, given the prevalence of mental illness and cognitive impairment in capital cases, it must be assumed that the client is emotionally and intellectually impaired. 34 31 ABA Guidelines, 10.5(A), at 1005. 32 ABA Guidelines at 1008. 33 ABA Guidelines at 1007. 34 Id. (quoting Rick Kammen & Lee Norton, Plea Agreements: Working with Capital Defendants, THE ADVOCATE, Mar. 2000, at 31). 10

Finally, plea negotiations are very different in the capital context. There are times when the best advice is to pursue plea agreement that results in a sentence of life in prison without parole. Giving such advice to a client is difficult. For a client who believes there is a chance of a conviction on a lesser or outright acquittal in the guilt phase, such advice can seem simply intolerable. There is no hope of a defendant engaging with such advice without an abiding relationship of trust. The proposed amendment to Rule 3.112 would exacerbate these trust issues. For a prosecutor to be qualified under the proposed rule, he or she would necessarily have tried at least two capital cases to completion. Given the infrequency with which capital cases go to trial, only a career prosecutor with involvement in numerous capital cases would ever satisfy the rule. This is asking a defendant to entrust his life into the hands of an attorney who has previously pursued at least two sentences of death. Understanding why a capital defendant would view such representation with skepticism is easy. To be clear, a former capital prosecutor might be deserving of a client s trust. And while a prosecutor-turned-defender may be as zealous and dedicated as any other defense attorney, the problem is how the client will perceive the situation. Death penalty litigation is time-sensitive with no room for error. A former capital prosecutor would be starting off in a hole, so to speak, relative to any other capital defense attorney. In a life or death situation, it would be unwise to allow for 11

such hobbled attorney-client relationships. Conclusion The Florida Public Defender Association opposes the proposed amendment of Fla. R. Crim. P. 3.112 that would allow prosecutors to substitute prior capital trial prosecution experience for experience as defense counsel so that they may participate as lead counsel. The Court s adoption of the rule was to promote the quality of representation in capital cases. There is no demonstrated need for such an amendment based on the foundation of the rule s original adoption and its evolution. Second, given the rationale of the American Bar Association s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, such an amendment would be imprudent. A former prosecutor s participation as defense co-counsel under at least the minimum qualification under our rule is indispensable to the continuing quest to ensure that the ultimate penalty is administered with a high degree of certainty in procedural fairness as well as substantive proportionality. 35 The Florida Supreme Court has an inherent and fundamental obligation to ensure that lawyers are appointed to represent indigent capital defendants who possess the experience and training necessary to handle the complex and difficult issues inherent in death 35 Fitzpatrick v. State, 527 So. 2d 809, 811(Fla. 1988). 12

penalty cases. 36 Adopting this proposed amendment will not assist in meeting that obligation. To the contrary, it will circumvent and undermine it. CERTIFICATES Respectfully submitted, /s/ Julianne M. Holt President, Florida Public Defender Association, Inc. Public Defender, 13 th Judicial Circuit Florida Bar No. 323195 700 E. Twiggs Street Tampa, FL 33602 Jholt@pd13.state.fl.us I HEREBY CERTIFY that a copy of the foregoing was furnished by e-mail, on March 30, 2015, to Honorable Samantha L. Ward, Chair, Criminal Procedure Rules Committee at wardsl@fljud13.org; Heather S. Telfer, Staff Liaison Criminal Procedure Rules Committee at htelfer@flabar.org; and Abraham Laeser at abe@laeser.us. I HEREBY CERTIFY that these comments were formatted in 14-point Times New Roman. /s/ Julianne M. Holt President, Florida Public Defender Association, Inc. Public Defender, 13 th Judicial Circuit Florida Bar No. 323195 700 E. Twiggs Street Tampa, FL 33602 Jholt@pd13.state.fl.us 36 In re Amendment to Florida Rules of Criminal Procedure-Rule 3.112 Minimum Standards for Attorneys in Capital Cases, at 759 So.2d 613. 13