IN THE SUPREME COURT OF FLORIDA STATE OF FLORIDA, Plaintiff, v. Case No. SC06-2391 Lower Tribunal No. 1981-170CF IAN DECO LIGHTBOURNE, Defendant. / STATE S RESPONSE TO PETITIONER S SECOND, THIRD AND FOURTH EMERGENCY MOTIONS TO RELINQUISH JURISDICTION AND REQUEST FOR PROTECTIVE ORDER COMES NOW the State of Florida, by and through the undersigned attorney and files this consolidated response to Petitioner s various and sundry emergency motions to relinquish jurisdiction regarding: (1) Judge Angel s comments to the press (second emergency motion); (2) DOC memoranda (third emergency motion); and (3) the state records repository (fourth emergency motion). PRELIMINARY STATEMENT 1 On September 17, 2007, this office received three emergency motions to relinquish jurisdiction. As stated in the third emergency motion, page 8, paragraph 9, the issues raised in the motions are issues which Lightbourne intends to raise on 1 No factual averments contained in any of Lightbourne s motions are admitted. 1
appeal. By the defendant s own admission, the motions filed in this Court contain appeal issues and there is no reason for this Court to address them on an emergency basis. This process is particularly egregious because this Court has already denied Lightbourne s first emergency motion to relinquish jurisdiction, which was filed on September 11, 2007. These claims should have been raised in the first emergency motion, yet Lightbourne, under the specter of an exigency, has chosen to litigate his emergency motions in a piecemeal fashion, in an effort to deliberately delay processing his appeal before this Court. REQUEST FOR PROTECTIVE ORDER Due to the afore-mentioned concerns, the State respectfully requests the entry of a protective order precluding Petitioner from filing further emergency motions to relinquish jurisdiction. Including the motions filed on September 17, 2007, Lightbourne has filed at least seven emergency motions which sought to delay disposition of his case. This Court, and the State, should not be subjected to the apparently endless pattern of abusive motion practice that Lightbourne has chosen to pursue. Writing in a similar context, the Fifth Circuit noted that... counsel, particularly in capital cases, [] typically use every possible delaying tactic, secure in the belief that no judge will impose sanctions on them for exceeding the bounds of 2
acceptable behavior. Streetman v. Lynaugh, 812 F.2d 950, 965 n.4 (5th Cir. 1987). Lightbourne has demonstrated the validity of that observation. The Eleventh Circuit pointed out that [w]e do not have one set of rules for petitioners and their attorneys in capital cases and another set for everyone else. Jackson v. Crosby, 375 F.3d 1291 (11th Cir. 2004) (Carnes, J., concurring). That observation is equally applicable to the extreme circumstances of this case. Petitioner s Initial Brief is due Wednesday, September 12, 2007 -- that is the forum for litigation of these issues, not in the context of serially-filed dilatory motions. SECOND EMERGENCY MOTION: JUDGE ANGEL COMMENTS TO PRESS 1. Lightbourne s second emergency motion is based on statements appearing in the St. Petersburg Times which are attributed to Circuit Judge Angel. 2 These comments were apparently made during an interview following the issuance of the final order in this case on September 10, 2007. 2. None of the allegations contained in the second motion to relinquish are different in any way from the allegations set out in the first motion to relinquish jurisdiction to allow rehearing which was filed by Lightbourne on September 11, 2007, 2 The first 7 paragraphs of Lightbourne s motion are principally devoted to complaining about the schedule established by this Court for the conclusion of this case. It is not until paragraph 8 that discussion of the grounds for the emergency motion to relinquish begins. 3
and denied by this Court on September 14, 2007. 3. The only addition to the second emergency motion is Lightbourne s averment that Judge Angel violated the Code of Judicial Conduct by his comments. That averment, which is no more than abuse directed at a court with whom the defendant is dissatisfied, could and should have been pleaded in the first motion to relinquish. No justification for not doing so is offered, and the inference is that that claim was held back in the event the first motion failed. Such piecemeal litigation is improper. 4. Related to the claim of judicial impropriety is Lightbourne s suggestion that he has reason to believe that there may be [] sufficient basis to move to disqualify Judge Angel. Motion, at 6. No such motion has been offered. In any event, those grounds belonged in the September 11, 2007, motion -- the delayed presentation of that claim is an abuse of process, and is nothing more than yet another attempt to delay the conclusion of this case. 5. The relief requested by Lightbourne is relinquishment so he can get the facts regarding the basis of Judge Angel s comments. Motion, at 6. That is the same relief he asked for in his first emergency motion, even though he has given it a different name in his successive filing. This issue has already been ruled on, and Lightbourne s motion is an abusive motion 4
filed for no purpose other than harassment. It is improper, and should be denied. 6. Finally, Judge Angel s reported comment is in no way inconsistent with the September 10, 2007, order, which decided the issues that were before the Circuit Court. That order speaks for itself. None of the statements at issue are of such character that they might reasonably be expected to affect [the] outcome or impair [the] fairness of the litigation. Code of Judicial Conduct 3B(9). Lightbourne s motion is yet another attempt to delay a decision in this case. THIRD EMERGENCY MOTION: DOC MEMORANDA 1. The third emergency motion is primarily devoted to personal attacks on counsel for the State which have nothing to do with any issue. The State will not dignify Lightbourne s repeated attacks with further comment. 2. The bad faith underlying this motion is established by Lightbourne s own motion, in which he admits, on two separate occasions, that the trial court s upholding of the State s attorney-client privilege objection to two documents will be raised as an issue on appeal in this case. Motion, at 8, 13. 3. Because Lightbourne has stated his intent to litigate this claim in his appeal from the denial of relief, there is no rational basis for relinquishing jurisdiction to get the facts. The emergency motion is not filed in good faith, is an 5
abuse of process, and should be denied. 4. To the extent that further discussion of this motion is necessary, Lightbourne s assertions regarding the posture of the Pittman case are misleading, at best. Lightbourne has neglected to mention that a renewed motion for protective order was filed in that case on September 12, 2007. (Appendix A). 3 Lightbourne s reference to the Smith case, in note 8 on page 10 of the motion, makes no sense. The State objected in that case, as well. In any event, Lightbourne has overlooked the controlling caselaw, which is that even if there was an inadvertent disclosure (or inadvertent failure to object to the disclosure), that does not change the privileged character of the documents. State v. Buenoano, 707 So. 2d 714, 717 (Fla. 1998). 5. The Lightbourne trial court found the two memoranda at issue to be privileged attorney-client material, and ordered Lightbourne s attorneys not to disseminate those documents and to return all copies to the State. (Appendix B). Nevertheless, the memoranda at issue continue to appear in cases throughout 3 The trial court in Pittman stated, in its September 10, 2007, order, that it did not have sufficient information before it to justify a protective order. That information, in the form of the pertinent parts of the Lightbourne record, is now before that court. In Pittman, the Department of Corrections did not and has not waived the attorney-client privilege. Any filing by the Office of the Attorney General does not waive any privilege, since the privilege belongs to the Department of Corrections, which is the only entity which could waive the privilege. 6
the State, despite the explicit order of the Marion County Circuit Court. As of the filing of this motion, the State has identified the following cases in which the memoranda have been filed: 1. State v. Pittman, Polk County Circuit Case No. CF90-2242-A1-XX; 2. State v. Smith, Pinellas County Circuit Court Case No. 83-02653-CFANO-1; 3. State v. Johnson, Polk County Circuit Case No. 81-0112CF; 4. Griffin v. State, Florida Supreme Court Case No. SC06-1055; 5. State v. Siebert, Dade County Case No. F98-8943; 6. State v. Raleigh, Volusia County Case No. 1994-00723-CFAWS; 7. State v. Tompkins, Hillsborough County Case No. 84-01538. 6. Given the frequency with which the memoranda are being raised, and in light of the difficulty inherent in protecting those privileged documents (which continue to appear despite the court order to the contrary), the State respectfully requests this Court to enter its order directing that the memoranda in question shall remain under seal in each of the above cases, and in any other cases in which they have been or may be filed, until such time as this Court can consider the issue in Lightbourne s appeal. Such a pendente lite order will maintain the integrity of the privileged documents and will avoid the 7
piecemeal litigation of the matter. Unless this Court steps in, the concerted efforts of various defense counsel to circumvent the Circuit Court s order will result in further disclosure of documents which have been found privileged. FOURTH EMERGENCY MOTION: STATE RECORDS REPOSITORY 1. In Lightbourne s fourth emergency motion, he complains that relinquishment is necessary to get the facts regarding the State records repository because the memoranda at issue in the third emergency motion were placed under seal without notice and without a proper court order. Lightbourne ignores Florida Rule of Criminal Procedure 3.852(f), which deals with exempt or confidential records (such as these memoranda), and allows the submitting agency to place documents under seal. A notice and a proper court order is required to unseal the records under the plain language of the Rule. Lightbourne s motion turns the Rule on its head and seeks to delay this case for reasons that have no legal basis. 2. In addition, the records maintained by the repository are not Lightbourne s personal property any more than his records maintained by this Court are Lightbourne s personal property. The Department of Corrections was entirely within its rights, and acted properly under Rule 3.852 and the Circuit Court s Order, in sealing the memoranda. Lightbourne s complaints are unfounded and frivolous. 8
3. Moreover, Lightbourne s complaints about the actions of the Department of Corrections in sealing the memoranda are entirely inconsistent with his third emergency motion, where he claims that the Department has waived any privilege with respect to the memoranda. If the Department had not caused the memoranda to be sealed, Lightbourne undoubtedly would argue that fact in asserting a waiver of the attorney-client privilege. His complaints based upon the Department s proper and diligent actions is a gotcha maneuver that is brought in bad faith for no purpose other than delay. WHEREFORE, the State respectfully requests this Honorable Court (1) deny the second, third, and fourth emergency motions to relinquish jurisdiction; (2) enter a protective order precluding Petitioner from filing further motions to relinquish jurisdiction; and (3) enter an order directing that the DOC memoranda shall be placed under seal and not disclosed for any purpose in any case until the privilege issue is addressed in the Lightbourne litigation. Respectfully submitted, BILL McCOLLUM ATTORNEY GENERAL KENNETH S. NUNNELLEY Senior Assistant Attorney General Florida Bar #998818 444 Seabreeze Blvd., 5th Floor 9
Daytona Beach, FL 32118 (386) 238-4990 FAX (386) 226-0457 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above has been furnished by FAX and U.S. Mail to: Suzanne Myers Keefer, Assistant CCRC-South, 101 NE Third Ave., Suite 400, Ft. Lauderdale, Florida 33301, and Rock E. Hooker, Office of the State Attorney, 19 N.W. Pine Avenue, Ocala, FL 34475, and Judge Carven D. Angel, Circuit Court Judge, Marion County Justice Center, 110 N.W. First Ave., Room 3A, Ocala, Florida 34475 on this day of September, 2007. Of Counsel 10