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.