Justice Couriel praises Florida’s criminal bar, defends textualist approach
'We’re always applying the tools of construction, we’re always looking at context as a determinative to meaning, and we don’t turn to sources extraneous to text and context, we engage with the text, and context in history, to determine what the original public meaning of the statute was'
Justice John Couriel: 'I think the results on our court, at least in the five years that I’ve been on it, is that we seem to speak with a pretty clear voice.'
Florida’s criminal trial bar is among the best in the nation, its highly skilled assistant attorney generals and capital collateral review counsel are a taxpayer bargain, and some lawyers continue to resist the Supreme Court’s textualist mandate, says Justice John Couriel.
“The more I talk and listen to justices in the other states, candidly, the happier I am to be where we’re from,” he said. “We have a really tremendous dedicated criminal bar, especially in these capital cases, who are making the right arguments at the right time.”
Delivering a “Supreme Court Update” to the Criminal Law Section at the recent Annual Florida Bar Convention, the Miami native and former Southern District assistant U.S. attorney said his presentation was auspiciously timed.
“It’s fitting that I’ve been asked to speak about the last five years in criminal law on the Florida Supreme Court, because it happens that this month is my fifth anniversary on the court, so I’m essentially just talking about the court as I know it.”
Couriel defended the court’s decision, on its own motion, to amend the speedy trial rule, and in “a quick spin through the criminal court docket,” discussed a handful of high-profile rulings regarding circumstantial evidence, criminal malice, search and seizure, and the death penalty.
The Supreme Court hasn’t been overwhelmed by a record-breaking nine executions this year, Couriel assured, noting that the pace tends to ebb and flow, with no executions his first three years on the court, but 28 between 2011 and 2018.
“So, the comparisons that I think you are seeing somewhat breathlessly in the papers, I think belie the capacity of the court do its work,” he said. “I don’t feel pressed for time. I don’t think we feel pressed for time because of the capital docket.”
Florida’s criminal justice system, and the taxpayers, benefit from a highly collegial Supreme Court where individual members are “willing to kill our darlings,” — resist dissents or separate opinions — in service of a greater good, he said.
“I think the results on our court, at least in the five years that I’ve been on it, is that we seem to speak with a pretty clear voice,” he said. “Yes, there are dissents. Yes, there are concurrences, but by and large, and especially on matters of criminal, I think it’s fair to say that you have seen a court that speaks with clarity, and that is something that we have tried to do on purpose.”
One of a handful of cases Couriel highlighted was State v. Conage, a 2022 ruling authored by Chief Justice Carlos Muñiz that involved answering a certified question from the U.S. 11th Circuit Court of Appeals about the proper interpretation of a Florida criminal statute.
In finding, among other things, that a completed purchase of illegal drugs necessarily entails the defendant purchaser’s possession of those drugs, the court demonstrated “how to engage criminal statute, and the importance of context as in determining meaning,” Couriel said.
“The pre-Conage rule was that we looked for ambiguity, and when there was ambiguity, then we applied the cannons of statutory interpretation, or in prior years, looked to legislative intent,” Couriel said.
Conage underscores the textualist view that, “no, ambiguity is always with us,” Couriel said.
“We’re always applying the tools of construction, we’re always looking at context as a determinative to meaning, and we don’t turn to sources extraneous to text and context, we engage with the text, and context in history, to determine what the original public meaning of the statute was.”
Some lawyers are adapting to textualism better than others, he said.
“Some practitioners have gotten it, and some haven’t,” he said. “We still see folks in criminal cases citing to us about legislative intent being the pole star of what we do, and that’s just not the law anymore in Florida, and people are still in a little bit of denial about this, and that’s okay, it’s tough, change is hard, but it’s here.”
In a question-and-answer period, Couriel defended the Supreme Court’s decision to amend Florida’s speedy trial rule, over the objection of the Florida Association of Criminal Defense Lawyers and others.
Couriel acknowledged that justices normally prefer to wait for the “crucible of adversarial presentation.”
“For us, it was a matter of our constitutional oath,” he said. “What does the Sixth Amendment guarantee, and what have we read into it that is not there?”
Justices saw a clear need to revise the rule, Couriel said.
“We didn’t need adversarial challenge to diagnose a lot of the prior rule as alien to the Sixth Amendment, not guaranteed by the Sixth Amendment, a creature of tradition perhaps, but not called for by the text, and perhaps not necessarily in the service of justice,” he said. “That’s where I think it came from.”
However, Couriel said justices will be just as willing to revise it again should the court see any adverse consequences. He compared it to changes justices adopted to the civil rules of procedure to promote efficiency while maintaining just outcomes. Muñiz continues to refer to the changes as “a work in progress.”
“If we should see some sea change in the way the state uses the speedy trial rule, in terms of an abusive way, we would react pretty quickly to that,” he said. “I don’t know if it gives you any comfort to know that we are purposeful in doing this and that we are watching this, but we are purposeful and we are watching it.”
