Friday, July 13, 2012

SUPREME SMACK DOWN

Take a look at  the Wadada Delhall opinion on the Florida Supreme Court website here.  It's a big opinion, but starting under this heading "Improper Prosecutorial Comment" on page 59 of the opinion, there are some disturbing issues. 


The death penalty was reversed because of the improper comments of the prosecutor. Some highlights include: calling all the mitigation evidence "an excuse" which is improper denigration of mitigation evidence. The Florida Supreme court has since 2000 put prosecutors on notice that they may not call mitigation evidence an excuse.  The prosecutor continually-  while ignoring the trial court's admonition to not do so- called the defendant "dangerous"  Since 1983 the Florida Supreme Court has consistently warned prosecutors that arguments of future dangerousness "are prosecutorial overkill." See, Teffeteller v. State, 439 So.2d 840, 845 (Fla. 1983).  Citing the prosecutor's conduct in both the guilt and penalty phase, the court wrote: "We have cautioned in the past that a prosecutor shall not exceed the bounds of proper conduct and professionalism by overzealous advocacy, which is especially egregious in a death case...The prosecutor in this case, by her overzealous and unfair advocacy, appeared to be committed to winning a death recommendation rather than simply seeking justice. On numerous occasions, as discussed earlier, her improper advocacy continued even after an objection was sustained. In one instance, the judge was forced to step in and specifically admonish her to stop it. Yet, she continued in spite of this admonition."


If you watch the video of the oral argument here, (nb. you need a flash player, so a Mac wont work) it is even worse. The justices were exasperated with the prosecutor's  conduct detailed in the transcript and they questioned the attorney general if the prosecutor was an experienced prosecutor, and if so, why did the conduct continue after the judge sustained repeated objections? 


Why indeed? And does the State Attorney have anything to say about it? This is a death case. If there is one place where such overzealous conduct cannot be permitted, it is in this type of case. 


893 IS CONSTITUTIONAL. 
Equally upsetting, but for different reasons, is the Florida Supreme Court's decision in  State v. Adkins, in which the court upheld the constitutionality of Florida's drug possession statute despite the absence of any requirement that the prosecution prove mens rea.  


Justice Pariente's concurrence starts:  "Forty-eight states, either by statute or judicial decision, require that knowledge of a controlled substance—mens rea (―guilty mind)—be an element of a criminal narcotics offense ..."


Justice Perry's dissent is even more powerful in its opening:

"I cannot overstate my opposition to the majority‘s opinion. In my view, it shatters bedrock constitutional principles and builds on a foundation of flawed common sense." 
And in its closing: "The majority opinion sets alarming precedent, both in the context of section 893.13 and beyond. It makes neither legal nor common sense to me, offends all notions of due process, and threatens core principles of the presumption of innocence and burden of proof. I would find section 893.13 facially unconstitutional and affirm the trial court order under review."


Rumpole says: Something tells us if Justice Canady (author of the majority opinion)  mistakenly picks up the wrong attaché' case containing 100 grams of heroin the next time he is traveling in an airport, he will not be prosecuted and sentenced to the 25 year minimum mandatory despite his approving citation to this reasoning: "Common‘ sense tells us that those who traffic in heroin will inevitably become aware that the product they deal in is smuggled, unless they practice a studied ignorance to which they are not entitled."


Although our job just got a little harder, see you in court. 

57 comments:

Anonymous said...

The vote was 8-4 for death. How many of those 8 votes were a result of Gail Levine's improper argument? If a case is a legitimate death penalty case, the facts of the case are enough to convince jurors to vote for death.It is hard to believe that Gail didn't know she was making improper arguments, especially after she was admonished by the judge and continued to make the same arguments. Her arrogance caused a man to be unlawfully sentenced to death, caused unneccesary pain to the family of the victim who will have to relive the nightmare of another penalty phase trial, and embarassed the State Attorney and the vast majority of ASA's who are honorable lawyers who do not resort to improper tactics to win cases.
What will be the consequence of this decision which trashes the prosecutor's behavior? If there are none, the message to other prosecutors is that KFR condones this behavior. I support KFR. I think that she does a good job as State Attorney. This situation is a test of her leadership. I hope that by her actions, she teaches other, less-experienced prosecutors that she will not tolerate this type of conduct.
Gail is lucky that this case was not heard in the 3DCA with Judge Schwartz on the panel, or she would have referred to the Florida Bar. That happened more than once in the 80's.
I also wonder what would have happened if the defense attorney had repeatedly disregarded the Court's ruling. Seems there is a bit of a double standard in play here.

Anonymous said...

Vote for Rod and this type of misconduct will not happen again.

Anonymous said...

She is, and has for a long time been completely out of control. So much so that crticism like this and in the opinion only feeds her demented sense that what she does is for the greater good. She is capable of such good advocacy, but is also a loose cannon. When rod wins, he should send her to roc permanently.

Anonymous said...

KFR is such a great State Attorney! She allows psycopaths to make life and death decisions.

Anonymous said...

Gail is a good asa. Relax fools

DS said...

Since the Supremes regulate Attorney conduct, Should the court not of refereded her to the Bar for disipline or at least remedial ethics classes?

CAPTAIN said...

She will never change. She has made a career out of this.

Anonymous said...

Thank goodness there is someone like like Gail who has the courage to do the right thing. She is human and sometimes human emotions get in the way of good lawyering. This was not a travesty, the man was guilty and he was a danger to society. This wasnt his first brush with crime. A violent offender is like a sex offender, they rarely change. There are not many attorneys that have the kind of courage Gail has. You should all be ashamed of yourselves for the nasty things you say. not constructive. Try to remember all the good that she has done.

Anonymous said...

I agree. I have worked with and against her and she is a very ethical asa. Main fault is that she cares too much about putting killers away

Anonymous said...

I love how Poston and Canady dissented. Have these guys ever found any trial error not to be "harmless?" Thanks for nothing Jeb Bush.

FACDL list serve leaker said...

For those who enjoy slamming Uncle Milty, read Perry's dissent. Much of it is lifted straight out of the Washington decision that the 3DCA kicked out.

Fact is -- right is right and wrong is wrong. This statute is a nightmare, and the court has abdicated its responsibilities in not shooting it down. And what's next? What will legislature decide next is the crime of the week, so they can remove intent, flip the presumption and let you prove you are innocent?

Anonymous said...

10:26 - perhaps you would support her in a run for congress. that's great. but as a lawyer she is duty bound to follow the rules of professionalism and practice. if her emotion gets the better of her, to the point where we have to retry a case that should have been a slam dunk as you believe, then maybe she needs to get a new line of work.

Anonymous said...

4:25 said, "If a case is a legitimate death penalty case, the facts of the case are enough to convince jurors to vote for death." Right. The quality of the lawyer/presentation doesn't matter. LOL. Unbelievable that a lawyer would make such a statement.

As for Gail.......she is TOP NOTCH as anyone who has litigated against her or seen her in trial can verify. These cases are incredibly stressful and we're not robots. Sometimes people on both sides get carried away. Let's keep this in perspective.

BTDT

PS----I've always thought the SC's limitation on the word "excuse" is ridiculous.

Anonymous said...

Captain, I agree with you. I tried a murder case (non-death) against Gail a long time ago and her complete modus operandi is to push the envelope on every possible issue, as her misbehavior is usually chalked up to harmless error. She will never change and will never be sanctioned for her misconduct in any meaningful way.

Anonymous said...

Having been a prosecutor, i can tell you there ua nothing courageous in bwing a prosecutor...i have ageneral dislike foe leos, but at least thier jobs do include courage as for bdtd, gail is not top notch...she gets the cases with the ugliest facts, a law student could do her job. What she has done embarrass ed the office, is causing the victim's family unnessairy pain and is draining more money from tax payers...all around pretty bad. Is gl free to disregard a rule and court instructions because she disagrees?

Anonymous said...

Gail has always thought she can say and do anything without getting in trouble with her boss.

Kathy, get rid of Gail or teach her to shut the fuck up!

Anonymous said...

Gail did nothing wrong but succeed in getting a death penalty recommendation and the Fl SCT does not like that. Of course mitigation is an excuse. It is silly to keep lawyers from stating the obvious, but that's the Fl SCT for you. Of course people who are likely to be dangerous in the future are more deserving of the death penalty. Gail tells it like it is. She is an excellent prosecutor. Those who wish to talk trash about her aren't half the attorney that she is.

Anonymous said...

As a defense attorney who has known Gail for many years (and who has tried a murder case against her, who has been second chair on a death penalty case against her, and who has even tried a high profile case with her), Gail is as excellent and ethical and caring a prosecutor as there is. Yes, she is tough, but that is not grounds to condemn her for a closing argument.

Anonymous said...

Whether we like it or not, the body of law is clear that mens rea is not required in a drug case. The decision is correct and in accord with prevailing precedent.

If you don't like it, elect legislators who will put scienter back in the statute. That would be upheld, because it is the right of the legislature to make a defendant strictly liable for prohibited conduct which does not infringe on a constitutionally protected right. The issue as to whether the congreess or the state legislatures have the right to restrict and control the possession, sale and/or distribution of certain chemicals or "drugs" has been long decided.

I think most of you have not even read the decision. Perry is just wrong. So was Milt.

Speaking of his ego-ness, did you hear me, Milt? You were just wrong. Wrong, wrong, wrong. And did I say Milt you were incorrect, mistaken, and just wrong? Milt can you say "I was wrong"? Of course not. I think it may be a good thing you will be a one term wonder.

Anonymous said...

These cases only further highlight the fact that the most Important thing in the presidential election will be who picks our future Supreme Court justices: Obama or Romney? While everything else (employment, health care, taxes) are important, ultimately the only real, long lasting decision that will affect futu generations that will be made by our next president is, "which direction our Supreme Court will go in?"

Anonymous said...

Gail Levine is NOT an ethical ASA. I know for a fact she has lied in court and and tried to get others to lie as well. She has many bar complaints against her. She should either retire or be fired from the State Attorney's Office.

Anonymous said...

Time to post the important news. On last night's Burn Notice, the police officer was played by a local criminal defense attorney, Anthony Peyton.

Anonymous said...

When there is existing precedent saying a particular argument is improper DON'T make that argument. When objections to your argument are repeatedly sustained and the judge warns you not to do it again DON'T make that argument. Appellate attorneys OFTEN raise claims about closing arguments and they rarely get mentioned let alone warrant reversal, so this transcript must have looked really bad. Can't wait to watch the argument and see Sandy Jaggard try and defend this one.

Anonymous said...

I didn't realize I could disregard the rules of court if I was telling it like it was

Anonymous said...

Let's get real Mr./Mrs. 2: 36 pm. If the higher courts tell us not to make an argument, then, follow the law or deliver pizza for a living.

Hey, we're talking about death here. Should we not be super fair?

Gail was told over and over not to make those arguments and she did it anyway. We as taxpayers pay for that crap. I am not impressed.

Gail, follow the law!

Anonymous said...

12:55.....Of course you can't ignore rules you disagree with. As I said, in the heat of battle sometimes things are said that shouldn't be. We've ALL done it, so don't get all sanctimonious on me.

How long were you a prosecutor? Have you handled any homicide cases? You telling us that you've never done anything objectionable? The reality is that most judges are looking for every excuse to avoid giving the death penalty or upholding the death penalty. I wish they'd be a little more honest about it and stop simply creating silly rules and hammering public servants like Gail.

BTDT

PS---who would you want handling the case if one of your family members were killed? I'd want Gail.

Anonymous said...

BTDT is starting to sound like George Bush #1 beating up on Michael Dukakis. Hard to believe that BTDT is a defense attorney and pretty clear that his heart is not in it.

Anonymous said...

Who would I want prosecuting the death of a family member? The prosecutor who can do it right the first time. The one who won't have me guessing for years if the verdict will stick. The one who won't make me relive the horror again.

For sure I know I want BTDT defending the guy.

DS said...

What happens when the Prosecutor breaks the rules and uses their spassion to convict an innocent person?

If you hit it out of the ball-park it aint a Home Run ,if it is a Foul Ball.

DS

Anonymous said...

Give me a break all the handwringing over this. This wasnt someone who was innocent. THis guys brother was held on murder charges after an Arthur Hearing and this defendant went out and killed a witness in cold blood. Nice work gail on getting the conviction, good luck in the penalty phase. may you once again prevail and get the death penalty on this violent sociopath

Fake Kenny W said...

The Pour:

Drank a 1998 Chateau La Gomerie. This merlot keeps getting better with age. Drank a bottle in 09 and one last night and it was seriously better last night.
Opulent, plush, a rich texture, a scent of black raspberry, coffee coconut and chocolate make this merlot (yes a merlot!) a great great wine. This wine reaches its potential by 2020.

And as always, do not- under any circumstances- share a sip of wine wit any employee. They have their beer and vodka and tequila, and we have our pleasures and never the twain shall meet (and they can't come close to affording it.)

Keep pouring.

Anonymous said...

Btdt

I did handle homicide cases...that took about two years...i have had a conviction reversed, but i was young and made a mistake. I did not intentionally disregard a rule i knew. God forbid, i would want abe laser handling such a case...damn you for even makking the suggestion. You must have hooked up with gl? No?

In any event take solice in knowing that your tiny penis is not public knowledge on thus blog.

Anonymous said...

LOL 823. You been hanging out with AM? Gotta make this about the size of my manhood? Seriously? LOL

Gail has won many, many cases that have been affirmed. You all seem to be missing the point............she doesn't go from being a great prosecutor to being a loser because of one case. My point is not to excuse her errors so much as to say that some of you are losing perspective. Gail doesn't deserve the beating she's getting here.

For those of you commenting on the cost to tax payers........do we hammer defense attorneys like this every time a judge grants a rule 3? Would we want to do so? I think not.

Regardless, the personal attacks on this are ridiculous.

BTDT

PS---Abe left the office a couple of years ago.

Anonymous said...

I wouldn't want Gail prosecuting someone who killed my family member. I'd take Abbe Rifkin over Gail any day. At least I'd know that the conviction would stick.

Anonymous said...

who is gail and who gives shit?

state court

really...

Anonymous said...

Great comment, 8:23.

You managed to combine unbelievably bad spelling, bad grammar, ad hominem argument, and just plain rudeness into one comment.

Are you taking lessons from AM?

Anonymous said...

What constitutes "tiny"as opposed to small ?

Anonymous said...

I wouldnt want Gail anywhere near my family for any reason. Ive tried death cases against her and had dealings with her many other times. She's horrible. She comes across as vindictive and acts mentally unstable.
Never a good style..

Anonymous said...

As someone who did death penalty post conviction work, I can tell you there is way more over zealousness in capital cases than anywhere else. Once a case gets stamped DEATH, a lot of prosecutorial reason is lost.

Kissimmee Kid said...

Bunch of whiners. You live in a fascist police state. Get over it.

J.J. Gittes said...

What is the difference between the State of Florida and Wadada Delhall? None. They are both vicious murderous. Your precious little system kills people. Killing to buy crack, killing to avenge a murder. Killing is killing. Defense attorneys no better than prosecutors. Your all defend a rotten shitsystem.

On the criminal side of the house, the legal system condones and support murder. It is not legitimate. On the civil side, all it does is give monied might the ability to exhaust wearied right. Justice is for sale. It is pretty disgusting to see one group of whores complain about the conduct of another gang of prostitutes. You are all vermin. A system that kills people is not a justice system; it is a death machine and it is should be torn up root and branch.

However, my mantra does keep me sane. “Give it up Jake, it’s Chinatown.”

DS said...

Is it me or are these statements by FLA's LT. Gov. a little off? I know I cannt spell and I like creative writing, but what is
"character deformation "

DS

From the Herald on Sat.

The statements came as several emails poured into Carroll’s inbox, according to a review of the Sunburst system, which releases emails from staff in Gov. Rick Scott’s office. All of the emails to Carroll so far have been supportive, with some also taking aim at Carletha Cole — the former employee who accused the lieutenant governor.

"Unfortunately, as an elected official character deformation that is totally fabricated can occur like this and there is not much I can do,"Carroll wrote to Mary Jane and George Duryea of Lake Mary. "The media loves to put out sensational stories without doing due diligence to verify the authenticity."

"I just read the email from Cindy Graves and I am sorry you had to experience such hardship and ugliness from a Obama supporter,’’ Sandler wrote.

"We need women who are smart, driven, respected, brave (moms) who deeply care about our future in our state to run our offices ...not CC who is only in it to destroy the truth about our good leaders," wrote Maggie Melson.

Pretty confused said...

I need some help. Law school grad- about to take the bar. Needed to work this summer so continued a paid internship with a big firm although I'm stopping next week. I really wanted to avoid this but I ended up sleeping with a partner. I am from California- a former NCAA athlete and model and I know I look good. I actually went to law school because I wanted to support myself and not be a kept person. So I really tried. But she was a very attractive woman, less than 20 years older than me, and I am a guy after all, so one late Friday night something started. Not much, but then the next week an emergency occurred in NYC and she had me fly there with her and although two hotel rooms were reserved, we only used one. So now I'm about to take off for the bar and she has made it clear. The relationship continues and I have a job. A real nice job-great six figures. And don't get me wrong, she is hot. But I can get a hottie any night I want, and I often do and she is cramping my style, but to have style I need $$ and the job is a great job. So any real, productive thoughts would be appreciated. I will not reveal her and I will not sue her or the firm. Beyond that I am not sure what to do.

Anonymous said...

dear pretty confused: with this economy, if you're working at a BigLaw firm (i.e., AmLaw top 50), take the job and the six figured salary and get 2 years on your resume. if you have to break things off with her within the 2 years and she attempts to retaliate, get yourself a plaintiff-side employment lawyer and complain to the firm's HR dept. document everything. dates, times, places (the 5 Ws). they will either transfer you to another dept. (possibly a more exotic city if it's biglaw?) and if harassment continues there will be a nice settlement/separation agreement with a no disparagement and confidentiality clause to keep your mouth shut and a fat payment as consideration. the big firms pay a lot to keep harassment allegations out of the public domain.

Anonymous said...

12:34, just get a side job writing b.s. fantasy fiction. You seem to have some aptitude for it.

Fake Angry Gurl said...

Hey, 7:16 a.m., "tiny" is less than 6 inches. "Small" is between 6 and 9 inches.

Anonymous said...

I saw Gail in Whole Foods wearing a T-Shirt that says "I see guilty people". She is completely off her rockers.

Anonymous said...

Dear Pretty Confused: For what it's worth here is my experience: I will not say nor imply if I am male or female, a federal or state judge or if state, appeals, circuit or county, and indeed what area of Florida I am in.

When I was a 2L I was interning at an agency that had many contacts with politicians. I caught the eye of a very very powerful politician. The chief of staff offered me an internship. I took it knowing full well what was in store for me. The politician and I began an affair. I was asked what I wanted to do when I graduated law school. I said the firm I wanted to work for and then the time frame in which I wanted to be a Judge. The politician made it clear- as long as I voluntarily wanted the relationship (meaning I was not forced) and could accept in on the politician's terms- a secret non-public affair to be ended when the politician wanted- I would get my job and become a judge.
The affair lasted three years and the politician ended it. Very simply I was told "no more". It was clear- a younger me had come along.

Several years later I wanted to become a Judge. I called the politician. Was told exactly what to do. And I became a judge. As simple as that.

So my advice is to not do anything you don't want to do. But to do what you want and to get what you deserve and to make sure all the rules are spelled out clearly prior to beginning.

Best of luck.

Angry Girl said...

Being a slut and a whore is a matter of actions and ethics and not your sex. You sir, are a slut and a whore. Live with it.

Anonymous said...

12:34 The style of writing and relatively staid content calls for submission to the Playboy Advisor rather than Hustler. To get more traction at the PA, you might think about weaving in some questions and obervatons about overpriced, high end name brand clothing selections.

Anonymous said...

Why is this blog attracted to those who
are confused when it comes to matters of the heart?

Anonymous said...

So that's how Brown got to be Chief Judge.

Anonymous said...

And more importantly, you can view .flv (Flash) videos on a Mac, but not on an iDevice.

eyeonQ said...

By tradition the Q gives a presentation at the National War College within a month of the summer solstice. Today he spoke on "Napoleon at Waterloo- 4 mistakes that would not occur today and A lasting legacy of strategy."

Beyond claiming that Napoleon was a victim of an unforeseen series of events that destined his defeat, the Q- as he oft does- looked closely at the events of the prior year and concluded that the strategies of the French stingily influenced Douglas MacArthur in the Pacific in WWII. It was a riveting speech and will be on iTunes shortly as a QPod-cast.

Anonymous said...

That should read "strongly influenced"

Anonymous said...

BTDT - Gail Levine deserves every bit of the "beating" she is receiving on this blog. She is bringing down the State Attorney's Office by her antics in the courtroom. She is a nasty, unethical prosecutor and should be fired from the State Attorney's Office. She has lied in the courtroom on many occasions and just gets away with it. Are these the types of prosecutors we should have? – that we want in our courtrooms? She is an embarrassment to the judicial system.

Anonymous said...

It took numerous cases and numerous acts of misconduct before the supreme court of another state disbarred a prosecutor. Defense lawyers don't have to wait that long to get sanctioned. There is a double standard and it's unfortunate.