3rd DCA ROUNDUP-WOOPS HE DID IT AGAIN EDITION

You know him, you love him, you can't live without another reversal of a trial he presided over. We are speaking of course of the embattled Judge Peter Adrien and yet another reversal, this time in the trial Judge Adrien presided over in Foster v. State.

Foster was charged with first degree murder, attempted second degree murder, and a host of other accompanying charges. His attorney properly filed a notice of alibi with the names of witnesses, a year and a half prior to the start of the trial. The normal parade of Assistant State Attorneys came and went, and lo and behold once the trial began, the current ASA decided to read his/her file and was shocked to find a notice of alibi with the names and addresses of witnesses. This being the courtroom that it was, the best defense was a good offense and the prosecutor demanded the defense attorney produce the witnesses for trial the next day. The defense attorney couldn't do it, and Judge Adrien struck the notice, and prevented the defense from calling alibi witnesses, including at least one witness who was prominently mentioned in the police reports. What's the big deal about actually getting to the truth of a case when faced with the ability to use procedural rules to deprive the defendant of a fair trial? "We who labor here seek only truth- unless we can figure out a way to convict you without getting to the truth."

Well thank goodness for Attorney Rafael Rodriguez for the defense on appeal, as well as 3rd DCA Judges Gersten, Shepherd, and Lagoa, who held that exclusion of the witnesses was an improper sanction.

Here's the rule in the unlikely event you ever find yourself in a similar situation with the same players: The Florida Supreme Court has established a two-step analysis to determine whether a trial court properly excluded defense witnesses pursuant to Rule 3.200: (1) whether there was in fact a violation of the rule, and (2) if so, whether good cause exists to waive the noncompliance. Small v. State, 630 So. 2d 1087, 1089 (Fla. 1994).

Reversed for a new trial.

We'd really like to leave it at that except for a disturbing decision that has repercussions for those of us who kinda like the 4th amendment.

In State v. Carreno Judge Ward catches a reversal in a case where she granted a motion to suppress after another Judge issued a search warrant for a suspected Marijuana grow house.

A Judge that reviews a search warrant issued by another judge must pretty well deny the motion unless Martians land at the courthouse and tell her otherwise:

It was the reviewing court that failed to apply the proper standard, one of “great deference,” to the original judge’s determination. See Spinelli v. United States, 393 U.S. 410, 419 (1969).

For the Judge that issues the warrant the standard is rather low: To reiterate, “it is the ‘probability, and not a prima facie showing, of criminal activity [that] is the standard of probable cause.’” Doorbal v. State, 837 So. 2d 940, 952-53 (Fla. 2003)

For the Judge that reviews the warrant, the standard is shockingly low:

However, in reviewing a prior determination of probable cause and the issuance of the search warrant, the reviewing court must “accord[] ‘great deference’ to a magistrate’s determination,” even in a marginal or doubtful case. United States v. Leon, 468 U.S. 897, 914 (1984) (citing Spinelli, 393 U.S. at 419); see United States v. Lockett, 674 F.2d 843, 845 (11th Cir. 1982). In fact, “once a Magistrate has found probable cause and has issued a warrant, his judgment is conclusive unless arbitrarily exercised . . . .” United States v. Giacalone, 541 F.2d5508, 513 (6th Cir. 1976). Therefore, “the trial court should not disturb an issuing magistrate’s determination absent a clear determination that the magistrate abused his discretion in relying on the information in the affidavit supporting the warrant application to find probable cause.” Woldridge, 958 So. 2d at 458 (citing State v. Price, 564 So. 2d 1239, 1241 (Fla. 5th DCA 1990)). To that end, the trial court, when reviewing the issuance of a warrant based on a probable cause affidavit, “does not conduct a de novo determination of whether there was probable cause to issue the warrant. Instead, the trial court determines only whether substantial evidence supported the magistrate’s determination that probable cause existed.” Woldridge, 958 So. 2d at 458 (citing Bonilla v. State, 579 So. 2d 802, 805 (Fla. 5th DCA 1991)).

Rumpole says: Ouch.