Wednesday, July 17, 2013


In Geter v, State, 38 FLW D1405 (3rd DCA June 26, 2013) a remarkable thing occurred: the 3rd DCA denied, en banc (legally: the whole bunch), Geter's request to apply retroactively the US Supreme Court's decision in Miller v. Alabama,  132 S.Ct. 2455 (2012) holding that life in prison for juveniles is unconstitutional.  Geter filed a pro se petition. There was an opinion and then a motion to reconsider en banc, which the majority denied in a paragraph. 

Then Judge Emas wrote a dissent. 

The dissent is worth reading in its entirety. Judge Emas makes a powerful argument why the opinion in Miller is retroactive. Such a result would bring a bit of humanity and dare we say justice to a criminal justice system content for over two hundred years to incarcerate juveniles for life with no hope of parole. To paraphrase the new testament, let he who is same at age fifty as he was at seventeen throw the first stone. 

There is more here, however. Sometimes when judges dissent they reach heights that they never were shooting for. Such is the dissent of Judge Emas:

Before condemning a juvenile to a sentence he can complete only upon his death, our society and our criminal justice system has a compelling interest in ensuring that the defendant have the opportunity to present, and the trial judge the discretion to consider, individual circumstances that might warrant some lesser sentence. In doing so, we provide an accurate and reliable sentencing process that gives substance to the Eighth Amendment's concept of proportionate punishment. By applying such a rule to all juvenile defendants, including those whose conviction and sentence are already final, we surely enhance society's confidence in a system that is not merely efficient or uniform, but is also fair, accurate and reliable.
The ideals of fairness, accuracy and reliability often defy measurement, but no one can reasonably question the significance of both actual fairness and society's perception of fairness in the effective administration of justice and the accuracy, reliability and integrity of the criminal sentencing process.

There is more to Emas's penultimate paragraphs than the retroactive application of Miller. There is a subtle judicial strike at the heart of minimum mandatory sentences. Re-read the portion we highlighted in red. 

In Miller, the United States joined the enlightened nations of the 20th century by refusing to incarcerate juveniles for life without chance of parole. Perhaps in the second decade of the 21st century Florida can return sentencing to judges and take life crushing minimum mandatory sentences out of the hands of prosecutors half the age of judges who sit powerless. 

Until then, Florida's citizens continue to live under the tyranny of justice meted out by prosecutors who have unfettered discretion to file charges that invoke minimum mandatories. Judges and defense attorneys remain relegated by the legislature to powerless bystanders, the fate of the defendant entirely out of their hands. One could imagine a such a situation in the Soviet gulag- a conveyor belt of humanity shipped off to Siberia, justice a distant, laughable concept, mocked by the all powerful state prosecutors. 

See you in court, derailing the conveyor belt just a bit. 


CAPTAIN said...



I hope the readers of this blog take the time to read Judge Emas' opinion.


Cap Out .....

CAPTAIN said...



There has been some discussion on this Blog recently about the issue of 6 v 12 person juries.

Did you know that Florida is only one of two States that permit six person juries in serious felony cases?

Why is that?

Probably the same people that passed the law that permits the Death Penalty on a 7-5 vote. Every other State in the Union that has the death penalty, requires a Unanimous jury.

There is a good read on the 12 person jury in an Op Ed in the Herald written by Law Professor Shari Seidman.

It starts out like this:

Small juries, like all small samples, carry big costs. Doesn’t a jury in a serious criminal case have 12 members? Not in Florida.

Florida is one of only two states where a jury as small as six can decide a serious felony case. It is the only state where a murder case goes to a six-member jury. And second-degree murder in Florida is serious indeed, carrying a sentence of 25 years to life. The circumstances of the shooting that killed an unarmed teenager, moreover, are sharply disputed, implicating the use of guns, the limits of self-defense and race relations. As we often do, we have given the jury in this case a challenging task.

Why should we care if the jury has six or 12 members? The Sixth Amendment guarantees the right to trial by jury, but it does not specify jury size. When the Sixth Amendment was written, was the number simply assumed? James Madison thought it was: He thought the number was 12.

For almost 200 years, the U.S. Supreme Court consistently accepted this view, defining “jury” to mean the 12-member jury. For instance, in 1930, the court said that “it is not open to question” whether juries may consist of fewer than 12.

In 1970, however, the court reversed its position in Williams v. Florida and found no constitutional objection to Florida’s six-member jury. The court labeled the general use of 12 throughout history as an “historical accident.” The court’s characterization of the historical record has been widely disputed, but even more egregiously, the court joined its new historical assessment with a strikingly inaccurate behavioral claim.

It proclaimed that the behavior of six- and 12-member juries were “functionally” equivalent, and therefore the six-member jury was unobjectionable. In fact, the overwhelming weight of empirical evidence shows that juries of six do not perform as well as juries of 12.

Read more here:


CAP OUT ....

CAPTAIN said...


JUROR B37 .....

Following up on Rumpole's post about juror B37, there is a fascinating article on Slate.com and a link to Gawker that provides the video of jury selection and the Voir Dire of that juror.

The question Slate raises: What the F was the State thinking when they agreed to that juror?

Why Did They Let Her on the Zimmerman Jury?

The strange, strange case of juror B37.

Less than two days after a Florida jury found George Zimmerman not guilty in the death of Trayvon Martin, juror B37, one of the six members of the anonymous panel, signed with a literary agent to shop her book about the trial.

The news comes with a bonus video: juror B37’s entire voir dire captured on film and promoted Monday by Gawker. The process by which counsel on each side of the case interviews prospective jurors is revealing in all kinds of ways and a useful lesson in the strengths and weaknesses of the jury system. In the case of B37, it is also a master class on how to not know anything about something everyone else knows about.

Start with the general observations already raised in Gawker: B37 consumes no media beyond the Today show—no radio, no Internet news, and no newspapers used for anything but lining her parrot's cage. Perhaps because she does not consume any media, she was under the false belief that there were “riots” after the Martin shooting. She also described the Martin killing as "an unfortunate incident that happened."

Here is the link:


CAP OUT .....

Anonymous said...

Emas at his finest. Wish he spoke up more.

Anonymous said...

GeeEus kittens captain. Get a life.

Anonymous said...


here here

Anonymous said...

Hey Cap, 7:54 is not interested in those two articles as the last time he filed a Motion For a 12 person jury in a homicide case and the last time he picked a jury was likely never.

Rumpole. Amazing that this guy Geter managed to wake up at least some of those third dca judges and he did it all by himself. No appointed counsel to assist him in trying to save his own life. Sad.

Does Geter have any recourse at this point? Can he go the Federal route? Somehow this issue has to get back to the Supreme Court on the retroactive issue. Sounds like a job for Steve Harper.

Thanks rump for bringing this case to our attention.

Anonymous said...

Karen Gottlieb & Elliot Scherker--who get my vote as the best appellate attorneys in Florida--wrote the motion for rehearing for Geter and, to the best of my knowledge, will be filing the Supreme Court briefs in the case.

Anonymous said...

Emas dissents again this week (with Rothenberg authoring the majority opinion). And Bronwyn Miller gets spanked by Judge Schwartz!

Anonymous said...

Judge Emas continues to shine in the 3rd DCA and this comes as no surprise. He had always been a stellar trial judge and continues to strive to make a difference. I wish there were more like him at the trial level - bright, hardworking, no nonsense, and always had time for teaching moments for young lawyers, defendants, and anyone watching. Although I miss him in the trial courts presiding over my cases, I am proud of what he has already accomplished on the appellate bench and I am excited to see what is yet to come ...

Anonymous said...

The opinion reversing Miller is really something - did the court really order him to be sentenced to the max though? Very interesting.

Anonymous said...

Before you get all misty eyed with Kevin Emas, read some of his other recent teachings.

He recently insulted a circuit judge by saying her order was a "gross" abuse but, the dissent says she was right. Circuit judges don't like being personally insulted by DCA judges over an honest disagreement.

He also authored an opinion completely screwing DUI defendants at DHSMV and if you read it carefully, he really fudged to help the State win with good old Leslie by his side.

Kevin can be great and awful. It all depends on his mood.

Anonymous said...

Paul Morris is the best appeals lawyer in this state and probably the country. Much better than Elliott and wife, Karen. Paul supervised them when Paul was chief of appeals at the PD office in the 70s and 80s.

Anonymous said...

They are all great but I still would take Richard Strafer on a criminal appeal first.

Anonymous said...

Which DHSMV appeal did Emas screw us on?

Anonymous said...

To 6:19: I don't practice much criminal law but I do a lot of civil litigation. "Gross abuse of discretion" is an appellate standard of review where the trial court, for example, denies a motion to set aside a default judgment. I imagine the opinion you're referring to is merely applying the "gross abuse" standard to the lower court's decision. I seriously doubt the appellate court was referring to the trial court's decision as gross. But why don't you give us the citation for the case you're referring to so we can read it for ourselves?

Anonymous said...

I do lots of appeals and I read them too:
Insult case: Motors, Pumps v. Miami Medley, 38 Fla. L.W. D1170 (3D12-197) I too wondered about the word "gross" before the words "abuse of discretion." Rather insulting to Judge Cardonne if you ask me.

State DHSMV v. Edgell, 3D12-2313. It looks like Emas and Rothenberg really hate DUI's.

Anonymous said...

To Wed. 9:32 (who I assume is also Wed. 6:19): Well since as you say you read lots of opinions, then you probably noticed Emas' opinion states: "We review the denial of a motion to vacate default judgment for a gross abuse of discretion. Cellular Warehouse, Inc. v. GH Cellular, LLC, 957 So.2d 662 (Fla. 3d DCA 2007)." He wasn't insulting the trial judge he was merely acknowledging a long-established standard of review.

And since as you say you "do lots of appeals" you probably have researched Westlaw and found that there are over 270 opinions in Florida (including 68 from the 3rd DCA) referring generally to the "gross abuse of discretion" standard dating back to 1879 (McNealy v. State, 17 Fla. 198). In the context of the issue raised in Emas' opinion (i.e., reviewing the denial of a motion to vacate a default) the cases establishing the gross abuse of discretion standard date back a mere 50 years (Jensen v. Hoofe, 155 So. 2d 847(Fla. 3rd DCA 1963), so it's easy to see how you might have missed that (and the other 36 3rd DCA opinions applying that same standard of review to an order denying a motion to vacate).

As to the Edgell case you referred to, i read the opinion but I don't see how Emas and Rothenberg "screwed" DUI defendants as you say. I don't do DUI cases, but it seems to me they got it right. Is there something I'm missing? Is it possible that you are Michael Catalano, the attorney representing Edgell in that case?

Irma said...