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Court has the last word on who gets the final closing

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Court has the last word on who gets the final closing


Jan Pudlow
Senior Editor

The defense has it. The prosecution wants it. And now the Florida Supreme Court has the opportunity to decide which side deserves it, after hearing from both sides in oral arguments February 15.

It’s all about who gets the last say in closing arguments in noncapital criminal trials.

For more than 150 years in Florida, having the last word before juries begin deliberating has been a tactical advantage afforded the defense, if the only witness called is the defendant. The historical argument has been the defendant is up against the tremendous power of the state to take away liberty.

But last year the Florida Legislature repealed Florida Rule of Criminal Procedure 3.250, giving the advantage to the state to rebut the defense closing (as it now has when the defense calls additional witnesses), because it has the burden of proof. Federal courts and 47 other states comply with that common law rule. After questions were raised whether the rule is substantive or procedural, the bill was amended late in the legislative process to recognize the Supreme Court has the authority to decide the issue.

With no rule in effect as of October 1, 2006, the Criminal Procedure Rules Committee of The Florida Bar “hastened to get a rule proposal to you as quickly as we could,” William C. Vose, chair and chief assistant state attorney in the Ninth Circuit, told the justices in case SC06-2065.

The 37-member committee — 14 defense lawyers, 11 prosecutors, 10 judges, and two law professors — voted 23-7 (with six absences and Vose abstaining) to give the last-say advantage to prosecutors.

But The Florida Bar Board of Governors voted 30-5 to withhold its support for proposed rules 3.250 and 3.381, instead adopting the committee’s minority report as its own.

“I can quote one member of the Board of Governors: ‘We’re not going to allow the legislature to tell us how we’re going to practice law.’ I was unable to persuade them away from that position that that’s not what was happening. The proposal to change this was well before the legislature did it,” said Vose, who added the Board of Governors currently has no prosecutors but several defense attorneys.

For three decades, Vose said, the rule had been argued in the Criminal Law Section, with prosecutors especially wanting to change it.

“The theory languished and never really came to fruition until the appellate courts of this state started writing opinions about problems in the prosecution of cases because of 3.850’s (motions alleging ineffective assistance of counsel).. . where in certain cases defense counsel were trying to take a tactical advantage by not proposing witnesses so that they can get the closing argument. Now, some of the largest proponents of this rule are members of the judiciary,” Vose said.

That sparked a torrent of questions from the justices about whether there was evidence to back up the accusation that defense attorneys are falling down on the job by not calling witnesses they should, just to get the tactical advantage.

“I want to know if there is really any true evidence to support that,” Justice Peggy Quince said. “I have seen over the years a few cases where people talk about, ‘They should have called somebody and didn’t.’ But I’m not sure that I have seen any evidence that this is a pervasive kind of practice going on.”

Vose responded: “I can’t argue to you evidence, either. I can tell you that it’s the perception of most of the judiciary, of trial judges and district court of appeal judges who have to handle and deal with the 3.850’s.”

When Buddy Jacobs, representing the Florida Prosecuting Attorneys Association, took his turn at the podium to support the proposed rule change, he said: “We find as prosecutors that now we have a new cottage industry with 3.850’s.”

Justice Harry Lee Anstead asked: “Tell me what statistical evidence has been submitted that demonstrates to us that this rule has been abused and therefore you’ve got lawyers out there committing malpractice.”

Jacobs answered his main reason for wanting to change the rule — or not adopt the rule and let the common law prevail — is “a matter of fairness. We have the most liberal and open discovery system there is.”

Chief Justice Fred Lewis again brought up the 3.850’s, trying to get a gauge on whether it is a big reason to change the rule or just “an aside.”

“We believe it’s the reason that should be considered, yes, sir,” Jacobs replied.

“Before we start changing something that has been in existence for this period of time, should we factually study the 3.850’s and see?” Lewis asked. “Would that not be a better approach than to, well, let’s just assume?”

“We think enough studies have been done,” replied Jacobs, listing support for changing the rule from the court’s steering committee, the criminal rules committee, and Senate and House committees.

Lewis continued: “But I am still not getting an answer to just the fundamental question: ‘Do we really know?’”

Jacobs eventually conceded: “I don’t think that the data is there.”

Scott Fingerhut seized upon that lack of data in arguing the committee’s minority position.

“There is no empirical evidence, there are no statistical analyses, there is no case precedent to compel the court to reverse course on 150 years,” Fingerhut said.

Justice Raoul Cantero said: “Let’s just say we agree that this is purely procedural. We can do whatever we want regardless of what the legislature did. The legislature, as it has a right to do, has repealed our rule. So now we are left with nothing and.. . we’re starting from scratch, essentially. So why not conform to the 47 other states that have the common law rule?”

Fingerhut responded: “I say, why can’t Florida be bold and brave and sensitive and soulful and open-hearted and let the defendants have the last shot? The crime rate is down, certainly the index of violent crime rate. Conviction rates are up. Our prisons and jails are teeming with inmates. And substantive law is becoming increasingly more strict. So what’s broken?”

Fingerhut argued that the defense deserved this advantage, because the state usually enjoys the stronger case, has more resources, and calls more witnesses, who are often law-enforcement witnesses. On the other hand, Florida “has never been easy on criminal defendants. Before we had penitentiaries, there was a time we contracted prisoners for indentured servitude. Florida has allowed this procedural grace: ‘Before we give you 99 years, we’re going to let you have the last say. We are going to let you opt to have the last say in a case where you have nothing better to present than your own word and maybe try and prove a negative. We understand how impossible that is.’”

If the rule is changed to give prosecutors the last say, Fingerhut predicted trials will become longer because it would remove the defense lawyers’ incentive not to call witnesses.

“The real argument why we’re here,” Fingerhut said, “is not because the state bears the burden of proof. It is not because of this perceived tug-of-war between the court and the legislature over substance and procedure. And it is certainly not, as has been conceded, about alleged ineffective representation and gamesmanship.

“It is here because the state wants the last word. The accused has it. The state wants it. Now, I don’t blame them. We all want the last word in arguments. We’re lawyers.”

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