The Florida Bar

Florida Bar News

May 15, 2017 Letters



Death Penalty
This letter is in response to the letter asking if The Florida Bar is willing to accept that our process will still execute some innocent people. This is a valid concern. However, in the spirit of the Socratic method, I wish to answer that question with a question: What if an innocent person charged or convicted of murder is more likely to have his or her innocence discovered when the death penalty is involved, leading to an exoneration?

People charged and convicted of capital crimes get the most experienced prosecutors, defense attorneys, judges, and attorney generals working their cases. They get the most attention, publicity, and scrutiny. On appeal, those sentenced to death get their cases sent straight to the seven-justice Supreme Court of Florida rather than a three-judge DCA panel. On appeal they are also expected to argue as many issues as possible as opposed to other appeals where litigants are usually encouraged to limit their cases to the best one, two, or three arguments. See Jones v. Barnes, 463 U.S. 745, 752 (1983), quoting Justice Robert Jackson.

It seems that we have two options: Keep the death penalty and the surrounding safeguards, resulting in more innocents being exonerated but still a risk of a wrongful execution, or abolish the death penalty in which many of the aforementioned safeguards vanish, resulting in more wrongful convictions and life sentences but no wrongful executions.

The risk of any wrongful conviction is a great concern. If an innocent person dies in prison, is it any less an injustice than an innocent person being executed? I fully support additional safeguards to prevent wrongful convictions. A proposal I have seen for capital cases is to raise the burden of proof from beyond reasonable doubt to beyond any doubt before the death penalty may be imposed. One reform, inspired by the Bible, I would propose for all cases, not just capital cases, is the prohibition of convictions when there is only one witness. It is troublesome that in our system a jury is allowed to convict a defendant if there is only one witness just because it finds the witness credible. The most honest, accurate witness still occasionally lies or makes a mistake. A rule should be adopted requiring the state to present evidence of: 1. The word of two witnesses to the crime (the U.S. Constitution requires this for treason trials), 2. Strong physical evidence implicating guilt (forensics, paper trail, etc.), or 3. One witness corroborated by other evidence such as physical evidence or the defendant’s confession, before a conviction is permitted. Another reform could be to enhance the penalties for knowingly making a false allegation or presenting false evidence to the court, such as by making the penalty for presenting false testimony comparable to the penalty the falsely accused faced.

As lawyers, we should strive to ensure that wrongful convictions do not happen no matter what the penalty.

Sean Gravel
Daytona Beach

Pay Models
In the “sauce for the goose, sauce for the gander” department, I propose a budget-neutral performance pay model for state legislators (see “Bill would cut some judges’ pay,” the April 15 News).

Legislators’ pay would be adjusted based on their performance in the following areas.

Criteria for evaluation of a legislator’s performance:

• Number of bills a member introduces that are not related to the financial interests of that member’s campaign contributors;

• Number of bills introduced by member that become law in one session;

• Number of glitch bills required to fix defects in a member’s originally enacted bill.

Ratings by constituents on member’s accessibility to constituents; responsiveness to constituents’ requests, needs, and interests; demeanor; fairness:

• Percentage of assigned committee meetings attended;

• Percentage of member and state-paid staff time spent on campaign fundraising, with multiplier applied to such time while Legislature is in session;

• Percentage of bills member introduces, sponsors, or votes for that are later judicially invalidated (multiplier applied if similar legislation previously voided by U.S. Supreme Court);

• Number of bills member introduces, sponsors, or votes for that impose restrictions upon executive or judicial branches but exempt legislative branch;

• Number of bills a member introduces, sponsors, or votes for, which proclaim an “official state” anything.

With application of these few objective standards to legislators’ performance, and adjustment of their pay and benefits accordingly, we can assure ourselves that the best are rewarded and the worst are encouraged to move on to work more suited to their abilities.

Bill Manikas
Boynton Beach

Deposition Help?
Maybe The Florida Bar should create a help line for attorneys who are attending depositions.

The purpose of the hotline would be to help attorneys who are unsure if there has been a proper objection made during a deposition. Attorneys could call and bounce the objection off the Bar to see if it is appropriate. The job would be easy to staff. The phone call would go something like this:

BAR: Florida Bar Deposition hotline, how can I help?

ATTY: I am in a deposition and want to see if this is a proper objection.

BAR: Sure. What was the objection, exactly as it was spoken?

ATTY: “Objection, calls for spec—”

BAR: Improper speaking objection.

ATTY: There was another objection. It was, “Objection, relevance—”

BAR: Improper speaking objection.

ATTY: How about “Objection, lack of foundation—”?

BAR: Improper speaking objection.

As you can see, the position would be easy to staff. Out in the trenches, litigators are in need of reinforcements against exasperating attorneys who have no idea how to handle depositions.

Christian W. Waugh
The Villages

Judicial Term Limits
All this talk about how judicial term limits would affect the independence of the judiciary is sheer nonsense and misses the mark.

We have a tri-partite government at both the federal and state levels. The imposition of term limits at both the federal and state levels upon the executive branch hasn’t impinged upon its independence. In Florida, the imposition of term limits upon the Legislature hasn’t impinged upon its independence. The imposition of term limits upon the judicial branch at the state level here would similarly not impinge upon its independence.

What the judges fear is the elimination of both individual and familial dynasties. For some unexplained reason, hardly anyone runs against a sitting judge regardless of how that judge is perceived by his or her judicial peers or by the public. Judges generally retire, die in office, or are removed for some indiscretion by the Supreme Court. Hardly anyone is ever “un-elected.”

I am in favor of judicial term limits. I am also in favor of preventing a gubernatorial appointment should a judge retire close to his or her end of term just so that there would not be an “open” election for the vacant position, and the gubernatorial replacement would run as the incumbent, again, usually without opposition.

There are just too many judges who have been appointed instead of having been elected when they assume the bench for the first time. If that doesn’t politicize the bench, I don’t know what would. I am hopeful that the Legislature would address this issue when drafting the appropriate constitutional amendment.

Paul S. Cherry

Parental Leave
The proposed Rule 2.570, for a minimum of a three-month parental leave, is a “coddle- the-attorney” rule and suggests that trial court judges and opposing counsel are unsympathetic to a pregnancy situation as a basis for a continuance and need a new rule to dictate their decisions.

Trial courts control their own calendars and, in the ordinary course, will grant reasonable requests for a continuance for good cause. Moreover, most attorneys are professionals and will accommodate the other side in a case when a reasonable request for a continuance is requested, including a pregnancy. A new rule should not impinge on the discretion and judgment of courts and opposing counsel.

The female attorney who is pregnant or the male attorney who will be the father generally know about eight months ahead of time of the birth date. Accordingly, the attorneys involved in the birth should be able to arrange their calendars to avoid the conflict between their clients’ interests and their personal interest.

After all, the courts and attorneys do not exist for the benefit of judges and attorneys. Rather, they exist to resolve disputes between litigants in the speediest and most cost- effective manner.

Richard N. Friedman
Beverly Hills, California

Taxes, Sea Rise, and Economics
Another News and another article where thinly veiled political views are dressed up in unsupported and risible economic arguments.

Leaving aside the probability of rising seas, caused by either global warming or climate change, due to human activity or geological forces depending upon the advocate, there is absolutely no evidence to support the claims of Messrs. Lane and Jacobs that rising seas will adversely impact local property and sales tax revenues.

These gentlemen lament a reduction in property taxes from real estate lost to rising seas, but they ignore the resulting increase in property tax values for new ocean-front property and from inevitable price increases for remaining properties facing augmented demand. They look past increased property tax values for raw or under-utilized land that would have to be improved for replacement development and infrastructure. They are blind to the impact of improvements made in advance of heightened sea levels, as with Miami Beach’s $400 million investment in its streets. They omit the fact that increased sales taxes would result from all this economic activity in anticipation of and reaction to their feared future.

Businesses won’t disappear like a sandbar at high tide; they’ll move and generate plenty of sales taxes both in doing so and in their new location.

James Lovely

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