Supreme Court of Florida No. AOSC16-100 IN RE: MARY CATHERINE BONNER ADMINISTRATIVE ORDER Pursuant to the Court s authority to monitor the representation by counsel of capital defendants to ensure that the defendants receive quality representation, see art. V, 15, Fla. Const.; 27.711(12), Fla. Stat. (2015), I, Jorge Labarga, under authority vested in me as Chief Justice of the Supreme Court of Florida, do hereby appoint the Honorable Kevin Emas, Judge, Third District Court of Appeal, as a referee for the Court to conduct an investigation into the concerns raised about Mary Catherine Bonner by Martin J. McClain in the April 4, 2016, letter to the Court and the cases referenced therein, including Cave v. State, SC60-82333, and Scott v. State, SC16-210. Additionally, I appoint Belvin Perry, Jr., to serve as a special counsel for presenting this matter to the referee. The referee shall make findings of fact and recommend any necessary remedial action, including the removal of Mary Catherine Bonner from the registry for postconviction capital attorneys, if appropriate. This Court shall review the referee s recommendations
and take action as it deems appropriate. The referee s report shall be filed within 90 days of this order, unless there are substantial reasons requiring delay. DONE AND ORDERED at Tallahassee, Florida, on November 8, 2016. Chief Justice Jorge Labarga ATTEST: John A. Tomasino, Clerk of Court - 2 -
McClain & McDermott, f A April 4, 2016 l+l N.E.. ;:.o'h Street Wilton Manors, FL jjjj+ ""fel (;:.05)98+-Bj+t Fax (95+) 56+-5+12 martt;tmcdain@earthlink.net John Tomasino, Clerk Florida Supreme Court 500 South Duval Street Tallahassee, FL 32399 RE: Section 27.711(12), Fla. Stat. Dear Sir: During the course of recent litigation in a death warrant case I became aware of circumstances that have caused me concern as to: 1) whether the registry system is properly functioning in two capital cases that do not involve me, 2) what is my moral and legal responsibility to advise the appropriate entity of my concerns, and 3) who or what is the appropriate entity that I should advise if it is my moral or legal responsibility to do so. When the capital registry was created, the Commission on Capital Cases was also created to oversee the capital registry. However, the commission was shut down by the legislature a few years ago and not replaced. Section 27.711(12) now provides: The court shall monitor the performance of assigned counsel to ensure that the capital defendant is receiving quality representation. The court shall also receive and evaluate allegations that are made regarding the performance of assigned counsel. The Chief Financial Officer, the Department of Legal Affairs, the executive director, or any interested person may advise the court of any circumstance that could affect the quality of representation, including, but not limited to, false or fraudulent billing, misconduct, failure to meet continuing legal education requirements, solicitation to receive compensation from the capital defendant, or failure to file appropriate motions in a timely manner. (Emphasis added). This provision does not specifically identify what court is obligated to monitor the performance of court-appointed registry counsel; but, it does provide that "any interested person" may advise the court "of any circumstance that could affect the quality of representation." The phrase, "interested person," is not defined. I frankly do not know ifl fit within the meaning of"any interested person." As to the cases in Page 1 of 4
which my concerns have arisen, I believe that I am burdened by a conflict and may not act as capital collateral registry counsel. In one case, I previously represented the capital defendant, and in the other, I represented the capital defendant's co-defendant who has since been executed. Nevertheless, I am aware of circumstances in these two case affecting the quality of representation being provided by the court-appointed registry counsel, Mary Catherine Bonner. In the course of my under-warrant representation of Mark Asay, I had contact with Mary Catherine Bonner, who had previously represented Mr. Asay and William Greg Thomas, who is also a capital defendant who last year I was appointed to represent in federal court. Ms. Bonner's conduct in representing Mr. Asay and Mr. Thomas was the subject of an evidentiary hearing in federal district court. As to Ms. Bonner's representation of Mr. Thomas, the district court found: that Bonner had exhibited "bad faith," had made ''untrue" representations, had "rendered di_sloyal service to her client," and had suffered from a "mental impairment." He also held that her egregious misconduct was an extraordinary circumstance that merited tolling, citing two cases from this Court. Thomas v. Attorney General, 795 F.3d 1286, 1290 (l l 1 h Cir. 2015). In July of2015, the Eleventh Circuit remanded Mr. Thomas' case to the district court for reconsideration in light of recent United States Supreme Court decisions that had issued after the district court's ruling. In a pleading filed on remand by the State on January 19, 2016, the State acknowledged Ms. Bonner's misconduct when arguing that she should be sanctioned for her misconduct, but that her client, Mr. Thomas should not receive equitable tolling: While there certainly was dishonesty and bad faith towards the court on the part of habeas counsel, the sanction for such conduct should be attorney discipline, not the granting of equitable tolling. Thomas v. Attorney General, Case No. 3:03-cv-00237 (M.D. Fla.), Supplemental Brief Following Remand filed January 19, 2016 (Doc. 181 at 8). As to Mr. Asay's habeas petition, the district court also granted equitable tolling. The district court explained: The terms "bad faith" or "dishonesty'' capture Ms. Bonner's conduct and are the type of egregious conduct that rises well above professional negligence or even gross negligence. Combining this with Ms. Bonner's already noted mental impairments during this time and giving some credence to the state's view that Ms. Bonner deliberately chose to miss the limitation deadline (even against her client's expressed wishes), thereby creating "divided loyalty'' between Mr. Asay and Ms. Bonner, and even the high bar set by Holland is met. Recognizing that equitable tolling applies "only in truly extraordinary circumstances" and "is typically applied sparingly," [citation omitted] the circumstances that this Page 2 of 4
Petitioner has proven, which will hopefully be rare, meet this test. Moreover, it is hard to imagine how a Petitioner could be more diligent in the pursuit of a timely federal habeas filing. Asay v. McNeil, Case No. 3:05-cv-00147 (M.D. Fla), Order dated February 10, 2009 (Doc. 112 at 37-38). 1 I have also become aware of the fact that Ms. Bonner's work representing capital defendants has been the subject of a national news article casting Florida in an unflattering light. See Armstrong, K. (Nov. 16, 2014),When Lawyers Stumble, Only Their Clients Fall, The Washington Post, http://www.washingtonpost.com/sf/national/2014/11/16/when-lawyers-stumble-only-their-clients -fall. After I was appointed to represent Mr. Asay on January 13, 2016, and was trying to obtain Mr. Asay's files and records, my office contacted Ms. Bonner to learn what, if any, files and records she had retained in Mr. Asay's case. Despite the exigencies created by Mr. Asay's pending death warrant, she repeatedly delayed ascertaining and advising what files she had. About a week into the warrant, she had four mold and insect infested boxes delivered to my office. One of the boxes was largely empty. All of the material in the boxes had been exposed to water and was ruined. The prevalence of mold made the boxes a health hazard. A week later, Ms. Bonner announced that she had found more boxes. She delivered these boxes late on January 27, 2016, after they had been left outside in a driving rain storm. Because they were completely water logged, the boxes were literally disintegrating as they were carried to my office. I could not look through the contents because trying to go through paper documents that were soaking wet would both cause the paper to fall apart and the writing to run more than it already had. After weeks of air drying, I was able to ascertain that the boxes delivered to me included many case files concerning what appeared to be banking litigation from the early and mid 1990's. There were also tax records included seemingly unrelated to Mr. Asay. And, there were also files on other capital defendants, including Alphonso Cave. In February of2016, I was frequently checking this Court's online docket to keep track of pleadings and orders filed with this Court regarding a recent United States Supreme Court decision. On February 12, 2016, I happen to see that the State had filed a motion to dismiss an 1 At one point in the district court's order, it stated: "The Court was incredulous that a member of the Bar could deliberately let a statute of limitations expire, hoping later to convince the Court to apply equitable tolling." Order of February 10, 2009 (Doc. 112 at 15). At another point, it wrote: " the Court conducted another motion hearing at which Ms. Bonner in part blamed the mental and physical health of her husband and herself as reasons for her actions. Out of respect for Ms. Bonner's privacy, the Court will not repeat what she said on the record that day, but instead incorporates pages 79-82 of the transcript of the December 17, 2007 hearing." (Doc. 112 at 15-16). Page 3 of 4
appeal filed by Paul Scott in Case No. SCl 6-210. Because I had represented Mr. Scott in the 1990's, I opened the motion out of curiosity and discovered that Mr. Scott had appealed the circuit court's refusal to discharge Ms. Bonner as his counsel. And according to this Court's docket, the State's motion to dismiss is still pending at this time. Later on March 23, 2016, I saw an entry in this Court's online docket showing that an order had been entered regarding a letter written by Alphonso Cave which was filed in Case No. SC60-82333. I had represented one of Mr. Cave's co-defendants, John Bush, back in the late 1980's and early 1990's. This Court's March 23rd order indicated that Mr. Cave's letter was being treated as a motion requesting the appointment of new counsel to replace Ms. Bonner who is currently Mr. Cave's court-appointed registry counsel. The State and Ms. Bonner were ordered to respond. Learning that there are two cases pending before this Court in which Ms. Bonner is currently serving as the court-appointed registry counsel greatly troubles me. But, it is unclear to me what is the appropriate thing to do with my concerns. So in reliance upon 27.711(12), I am writing this letter to you. If you find the letter to be inappropriate, don't provide it to the Court. If there is some other entity that I should provide this letter to instead, let me know. However if under 27.711(12) this letter is an appropriate matter for the Court to consider, please forward it to the Court. Ifl should be serving it on the parties in Case Nos. SC16-210, and SC60-82333, please advise and I will do so. Sincerely Martin J. McClain Page 4 of 4