I was actually kind of surprised they had to litigate this issue, what with the right to remain silent being a Constitutionally protected right. Last week, the Florida Supreme Court unanimously agreed with the 4th Circuit Court of Appeal that it is improper for the state to comment on the the pre-Miranda silence of a Defendant who does not take the stand. Basically, if someone exercises their right to remain silent… it cannot be used against them. I suspect the Florida Supreme Court was suprised the issue needed to be litigated, the 4th DCA opinion that they upheld was just issued on February 18. The appellate court certified the question as one of great public importance, but that is still an impressive turnaround at the highest court in the state.
Donna Horwitz, via FL DOC
The Court sent back the conviction of Donna Horwitz, convicted of first degree murder in the death of her husband. When police responded to the shooting, they asked Ms. Horwitz several questions, and she stood mute. The prosecutor successfully argued at trial that her silence was indicative of a consciousness of guilt, and she was convicted and sentenced to life in prison. The Court ruled, consistent with longstanding precedent around the country, that his is unfair comment on the right to remain silent. It would essentially force a defendant to testify to rebut the assertion, which is improper.
Further, the court observed that the evidence of silence would not be relevant and is inadmissible under basic rules of evidence. While silence potentially could indicate consciousness of guilt, the meaning is ambiguous. It could be shock, or a concern that officers would not believe the story, or many other things. Due to the ambiguity, it is not relevant to the elements of the crime, and would also be inadmissible for this reason.
You have a right to remain silent… use it. The State cannot use it against you if you do.
Posted in 5th Amendment - Miranda Rights, 6th Amendment - Fair Trial, Criminal Law, Florida, Gray Menace, Uncategorized
Tagged 5th ammendment, donna horwitz, florida, jupiter, miranda, murder, silence, supreme court
Florida’s Death Penalty laws are once again in disarray.
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, 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.
Posted in 14th Amendment - Due Process, 6th Amendment - Fair Trial, Criminal Law, Death Penalty, Florida, Supreme Court, Uncategorized
Tagged death penalty, Jury, murder, procedure, ring, sentencing, supreme court, timothy hurst, trial
“…there currently exists no death penalty in the state of Florida…”
Since the Supreme Court struck down the procedure Florida used to impose the death penalty in the Hurst case, there is currently no legal method to proceed on a death penalty case at this time. A Pinellas judge said as much this week, merely stating the obvious, as he rejected a prosecutor’s notice of intent to seek the death penalty. The legislature has already indicated they are going to address the death penalty procedure. The bigger question will be whether the courts apply the Hurst ruling retroactively, which would effectively preclude imposing the death sentence to the current death row inmates.
Background on Crimcourts.
The Supreme Court has found that Florida’s unique death penalty sentencing procedure is unconstitutional. The court found years ago that a jury must find the aggravating factors necessary and to makes the ultimate selection of a sentence of death. Florida’s procedure requires the jury to find the factors and to make a recommendation of death, but then allows the judge to make the final decision. The court was not satisfied with this advisory function of the jury. The death penalty sentencing procedure was found to be insufficient and the cases that previously supported it have been overturned by this week’s 8-1 decision.
Some news sites have said that the Court found Florida’s death penalty Unconstitutional. This is incorrect… it was the procedure by which Florida imposes the death sentence that has been found lacking. Currently there are about 365 inmates on Florida’s death row, and probably all a product of this sentencing scheme. Undoubtedly, they will all be raising this issue. The legislature is already considering bills to adjust the sentencing scheme to comport with the court’s ruling.
Convicted Killer Timothy Hurst via FL DOC
However, this decision may not provide relief for many of the inmates already sentenced to death. Generally, a decision won’t be retroactive if it deals with a procedural issue, and this is very much a procedural ruling. It would seem shocking that courts in the future might allow dozens or hundreds of death sentences to stand based on sentences that did not include the Constitutionally required fact finding by juries… but that remains to be seen. We’ll be watching closely.
Here’s the slip opinion in Hurst v. Florida.
Posted in 6th Amendment - Fair Trial, Criminal Law, Death Penalty, Florida, Supreme Court, Uncategorized
Tagged death penalty, Jury, prodecure, ring, sentencing, supreme court, timothy hurst, trial
The Supreme Court has decided to hear two cases involving Refusal to Submit to breathalyzers, known as implied consent laws. Many states make it a requirement for drivers to submit to controlled tests of their breath (or blood or urine) to determine alcohol content… and have penalties for the failure to do so. Many states, including Florida, make it a crime to refuse in certain circumstances. In Florida, a second refusal constitutes a first degree misdemeanor.
These laws have been upheld in Florida, and other places, on the theory that driving is a privilege, not a right. That is, if you accept the privilege to drive, the state can require you to submit to a lawful test. Florida prints it right on the front of drivers’ licenses (take a look along the bottom of your FL DL).
Just 2 years ago, the Court ruled that states cannot routinely take blood draws without getting a warrant. Many states, including Florida, had passed provisions for the immediacy of blood draws in certain circumstances: Florida had allowed them when there was an accident with serious bodily injury. The Court said that with modern technology, in most circumstances, it is possible to get a warrant rapidly, and therefore the state should get a warrant before doing a blood draw. It will be interesting to see how they come down on the refusal issue.
Posted in 4th Amendment - Search & Seizure, Criminal Law, DUI, Florida, Supreme Court, Uncategorized
Tagged breathalyzer, dui, mcneely, refusal, supreme court, warrant
The Supreme Court
Yesterday the Supreme Court heard oral argument on a case involving juror discrimination. The argument is that the government deliberately discriminates jurors by race; generally striking black jurors from the trials of black defendants. The case before the court is exemplar of the pattern: Georgia v. Timothy Foster. At his murder trial, every black juror was dismissed by the prosecutors. There were 5 potential black jurors on the panel from which his jury was selected, and all were struck with peremptory challenges by the prosecutor. He was convicted and sentenced to death.
However, the Foster case is unique, because over the court of the case winding its way through the appellate system, the prosecutor’s notes were obtained and included in the record. The notes offer substantial evidence that race was the determining factor in striking those jurors, though race neutral reasons were provided to satisfy the minimal legal threshold.
The notes makes this the perfect case to challenge the current procedure, which only requires the prosecutor to state a legally sufficient race-neutral reason when requested by the opposing party, known as a Batson challenge. In practice, the vast majority of Batson challenges are initiated by defense attorneys, almost always after prosecutors strike minority jurors. It remains to be seen what the court will do with the case, but some watchers noted that several justices seemed unhappy with the apparently discriminatory result of the peremptory challenges in the Foster case. Whether the overturn the Batson case and the longstanding peremptory procedure remains to be seen.
If you’re curious, I’d recommend the long article on the subject that the Daily Beast ran a few weeks ago…
Law Enforcement Agencies have started buying new, portable radar devices that allow them to detect movement through walls. Essentially, they can tell how many people are in a house without going inside. They were initially developed for the military, but are spreading through law enforcement agencies across the country.
Radar by L3
This is inherently problematic, because there is an expectation of privacy in one’s home. The Supreme Court has previously made it clear that such an invasion of the sanctity of one’s home requires a warrant, or is otherwise unreasonable. USA Today correctly covers the law on this: while the radars are new, the Court has previously and unequivocally declared that similar means of looking inside homes is not Constitutional without a warrant. The court issued a ruling several years ago about using infared scanners on homes, and more recently prohibiting dog sniffs of homes without warrant.
This can be an effective tool for law enforcement, provided they do it right. They need to get a warrant before utilizing radars and other devices that provide information from inside the home, and they need to make explicit in their application that they wish to use the device, and why there is probable cause to support it: otherwise any evidence obtained from such as search will be inadmissible.
via USA Today