Category Archives: 14th Amendment – Due Process

A Look at the Ramifications of Florida’s Death Penalty Issues

The procedure for Florida’s Death Penalty was found to be unconstitutional, despite efforts to rework it, until March of last year, when a procedure that meets Constitutional muster was approved and signed into law. But what to do with the cases that had been sentenced under the old procedure. Florida’s Supreme Court ended up splitting the baby, basing their decision on when the US Supreme Court issued their controlling decision in Ring v. Arizona back in 2002. The Florida Court decided that the rule would be applied retroactively to cases decided after the Ring decision, but that individuals sentenced before then are out of luck: even though the Court had already decided the procedure used to sentence them was unconstitutional.

The decision is based on the rule that decisions based on procedure will not be retroactive. In the last several weeks, the Court has been busy issuing ruling after ruling that declines to apply the rule announced in the Hurst case to pre-2002 convictions. This column from the Tampa Bay Times takes a look at the spate of opinions that have recently been released, and the sometimes incongruous results. It’s definitely worth a read.

Via: Tampabay.com

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If You Think You Have a Secret, You’re Probably Wrong

Thanks to the omnipresence of electronic devices in our lives today, somebody probably knows everything you do. You have a cell phone in your pocket, which is essentially a listening device, your computer might have a camera on it that is potentially watching your every move, HAL 9000 style, and you might even be wearing a smart watch that is literally following you every step. All of those are able to collect data, store it, and potentially share it with others… perhaps even authorities. It’s potentially an avenue for the government to get in your homes and bedrooms.

Much of this technology is new, and the courts are still trying to determine what the limitations are on privacy, and what the government can access and use. The latest test case is actually in Germany, where prosecutors are using data compiled by Apple iPhone’s Health App: an app that is standard and pre-installed on the last several versions of iPhone. The Defendant refused to give up his passcode, by a cyber-forensics firm was able to crack it and give the data to prosecutors.

There are a lot of issues related to this, particularly here in the United States where different Constitutional rights come in to play. Obviously, the rights to privacy, unreasonable search and seizure, and due process are involved, but a major case last year even involved First Amendment aspects. In Arkansas, James Bates was accused of killing his friend Victor Collins, who was found drowned in Bates’ hot tub. In order to strengthen their case, prosecutors sought info from his iPhone to track his phone calls, and even his smart utility meter to demonstrate his water use (they planned to argue that he had hosed down his deck).

The prosecution also went after Alexa- the digital assistant program that works with his Amazon Echo device. Alexa listens and potentially records everything within the range of its microphone, so there’s a major question whether people would have an expectation of privacy around one. The prosecutors sought to obtain the data, when Amazon itself entered the fray with another claim: that they should not have to turn over the data because it would violate the First Amendment… that it could have a chilling effect on protected expression.

Ultimately, the Bates case did not decide the matters. Kathleen Zellner, the attorney who is handling Making a Murderer’s Steven Avery’s post-conviction claims, took over the case and since her defense was not dependent on the Amazon data, waived any objection and it was turned over. Ultimately, it probably did not play a role, as additional medical and forensic reviews apparently convinced the prosecutors that there was not a murder, at least not one that could be proven, and the charges were dropped without the case having to go to trial.

In the meantime, be aware that there is the potential that the government can find out a lot about you, from your computer, your social media, your phone, your watch, your car, your video game, your pacemaker, and in this case, they didn’t just go after Alexa, they used Bates’ hot water heater to charge him with a murder.

Donald Trump does not Respect the Judicial System

Screenshot_20171101-135912Donald Trump, currently President of the United States, made comments today that make clear he does not respect our constitutionally based justice system. Discussing the process for prosecuting the New York City terrorist, Trump stated at a cabinet meeting, “We need quick justice and we need strong justice — much quicker and much stronger than we have right now. Because what we have right now is a joke and it’s a laughing stock. And no wonder so much of this stuff takes place.” Fox News, in their online story about the piece, edited the quote to make it sound like he was talking about the immigration system. This quote was not about immigration. This line was about the United States criminal justice system, which Trump has insulted.

This should come as no surprise, as his imperiousness as president has frequently stepped on Constitutional protections. Famously, Trump took out full page ads in NY City papers in 1989 during the prosecution of the “Central Park Five”: 5 young men who were wrongly accused of a brutal beating and rape of a jogger in Central Park. “Muggers and murderers,” he wrote, “should be forced to suffer and, when they kill, they should be executed for their crimes.” “Though he didn’t refer to the teenagers by name, it was clear to anyone in the city that he was referring to them,” said the New York Times. The botched prosecution led to the wrong men being locked up for years, and the actual criminal, serial rapist Matias Reyes, continued to roam the streets attacking women. Even after DNA proved their innocence, and the exonerations are now an exemplar of poor police procedures and wrongful prosecution: a fact the Trump still has not acknowledged. “Quick”, by necessity, has to take a back seat to the more important principle of “justice”.

It’s ironic that he would call the criminal justice system a laughingstock the same week his former campaign chair and other advisers had charges brought against them in Federal court. They are probably happy to be out on bond as their cases are pending, and glad to avail all possible defenses under the Constitution. It’s easy to point at an evil person like the man who drove into a crowd of innocent bikers in New York… but, the Constitution protects us all. The justice system is not one size fits all, and most of the Constitutional protections are to prevent Government overreach, they are to prevent the violations of those rightly and wrongly accused. Our justice system has developed over that last two centuries as a model replicated around the world.

We all want to see justice brought to the New York City terrorist, and all those who would commit crimes against our people. But the system is not a joke. As an attorney, both prosecutor and defense attorney, respect for the Constitution and respect for our individual rights are the starting point for justice, and it is disappointing, albeit not surprising, for Donald Trump to disparage that. This is not a partisan issue… like many Republicans, I believe in our Constitution and our justice system. It’s flawed, and those of us who work in it are always working to better it, but it is not a joke. And I hope that the leaders in this country, on both sides of the aisle, stand up to speak up for it.

-UPDATE-

The White House later tried to walk back Trump’s comments about the justice system. At a briefing later in the day, spokesperson Sarah Sanders denied that Trump said our justice system was a laughingstock, and tried to claim that he was saying the process has people calling us a joke. Video LINK. But that’s not what he said… very clearly he was the one calling it a joke. Here’s his full quote:

“They’ll go through court for years,” he said. “And at the end, they’ll be — who knows what happens. We need quick justice, and we need strong justice, much quicker and much stronger than we have right now. Because what we have right now is a joke, and it’s a laughingstock. And no wonder so much of this stuff takes place.”

The fact that they are trying to reframe the president’s comments shows that they know they are inappropriate. The fact that the White House spokesperson is straight up lying to us about what the president said is embarrassing. I’ll leave it to you to decide who is the joke, here. Sadly, it’s no laughing matter.

Florida will soon have a Death Penalty Procedure, Once Again

death chamber

Florida’s “Death Chamber”

The Florida Legislature fast-tracked a fix-it bill for the death penalty, which was found to use an unconstitutional procedure because it did not require a unanimous jury finding for a recommendation of the death sentence. That law was an imperfect fix for the previous procedure, and the Florida Supreme Court subsequently made it clear that a unanimous recommendation would be required to meet constitutional muster. Yesterday the Florida Senate approved a new bill that does require unanimity, and today the  Florida House voted for it as well. The bill will head to the Governor’s desk, and he is expected to sign it in short order, effectively re-instituting the death penalty in Florida.

Those sentences to death after 2002 will have to have a new sentencing hearing if the State still wishes to seek the death penalty.

Michael Lambrix

Michael Lambrix

For those death row inmates whose cases were finalized before 2002, it appears the death sentences will not have to be revisited, pursuant to a Florida Supreme Court Decision that came out yesterday. The Court ruled that the legal issue is procedural, which means that it is not retroactive from prior to 2002. The court found that the state can move forward wit the execution of Michael Lambrix, who killed 2 people in Glades County some 30-plus years ago. He will surely seek a federal appeal before his execution goes forward.

Florida’s New Death Penalty Declared Unconstitutional

Florida’s Death Penalty laws are once again in disarray.

SCOTUSbuilding_1st_Street_SE

The Supreme Court

Last year, the Supreme Court struck down the procedure Florida was using to determine when the death penalty should be imposed, in the Hurst case. That meant that there was functionally no death penalty in the state of Florida. The legislature moved quickly to amend the law to establish a new procedure to prosecute the death penalty in Florida, and a new version was signed into law in March. Now, all that work is out the window…

Judge Milton Hirsch, a circuit judge in Miami-Dade, has ruled that the new procedure is also unconstitutionally inadequate. The Florida procedure does not require a unanimous jury verdict before the death penalty can be imposed. Florida and Alabama are the only states that did not require unanimity, and that specific issue was not discussed by the Supreme Court in the Hurst case. Ultimately, the issue is likely to be appealed to the Florida Supreme court, and potentially the U.S. Supreme Court again, but Judge Hirsch’s opinion is the first to address the issue since the new procedure was passed.

Hirsch was critical of the law, finding that the changes were not enough. He wrote, “Arithmetically the difference between twelve and ten is slight, but the question before me is not a question of arithmetic. It is a question of constitutional law. It is a question of justice.”

Timothy Hurst

Timothy Hurst, currently on Death Row

Meanwhile, the other issue up in the air is whether the Hurst decision is retroactive. That is, are all of the Floridians on death row entitled to new sentencing hearings?- 390 of them are currently on death row. While they would still be subject to a new death sentence, a ruling finding that Hurst is retroactive would likely spare a great number of inmates that the state would not wish to retry their sentencing hearings.

While it seems to be a no-brainer that if the procedure used to impose death was unconstitutional that the sentences could not stand, the courts have often held that these types of rulings are procedural, and do not apply retroactively. It will be interesting to see what the Florida Supreme Court does on the issue. Until then, Florida executions will have to be on hold. The Florida Supreme Court recently heard arguments regarding whether Hurst will mandate that he, and many other similarly situated cases will be reduced to life without parole.

You have a right to an Attorney if you can’t afford one, but you still have to pay

John Oliver takes on the overworked, underpaid challenges of the public defenders in our criminal justice system. I know some very good attorneys who are public defenders… or were until they found a job that paid a living wage. Fittingly, several of the examples he uses for this article are from Florida… most disturbing is the guy, on Hospice, who gets arrested for not having a valid driver’s license, and spends too months in jail… and then they spend thousands of dollars trying to recoup the fees and assessments. It’s symptomatic of bigger problems with the system.

Cash Feenz Killers Resentenced to Life in Prison

Ashley Toye and Roderick Washington, who were under 18 at the time they took part in the torture and murder of Alexis and Jeffrey Sosa, were back in court yesterday for resentencing. The Supreme court ruled in 2012 in Miller v. Alabama, that mandatory life sentences for juveniles were not proper under the Constitution. Florida passed a new law providing for new sentences for such criminals, and Toye and Washington are among the first to be sentenced under the new law. The judge could have sentenced them to less time, but declined to do so based on the facts of the case that included false imprisonment and torture before the victims were shot. They will have a chance to have their sentences reviewed after 25 years, another provision of the new law that has yet to be tested.

via News-press.com