The Florida Bar

Florida Bar News

October 15, 2009 Letters



Death Penalty

As a former homicide prosecutor, I read coverage of the forum held at the Florida State College of Law — sponsored by the ABA Death Penalty Moratorium Implementation Project and the FSU Center for the Advancement of Human Rights — with great interest, which turned to frustration and ultimately consternation.

The system is not now, and never was, broken. Americans have a penchant for blaming institutions for the failures of the people who operate within those institutions. If a judge appoints an inexperienced, known to be mediocre at best, town drunk to represent a defendant in a capital case and then watches that lawyer sleep through a portion of the trial, it was the judge who was broken and needs fixing, not the system. That the prosecutor was complicit in such a failure, despite an unequivocal set of legal and ethical rules which imposed upon him in every criminal trial a duty to seek truth and do justice, not win a conviction, is a human failing, not a systemic one.

That 22 people in Florida have been “released or exonerated from a death sentence since the death penalty was reimposed in 1972” does not by itself suggest all 22 were, in fact, innocent. In a number of those cases, the passage of time, the deterioration of the case, and the reversal of a conviction placed the current prosecutor in the position of having to make an ethical choice: Was it appropriate to retry the defendant if the likelihood of success at trial was not significant?

I have always found that a major argument against the death penalty is the potential for the execution of an innocent person. The irony here is not that I would disagree that even one mistake is one too many, but rather that anti-death penalty advocates seem to have no concern over the fact that a single citizen, armed with a reasonable belief that under the circumstances as they appear, the use of deadly force to protect their lives is necessary, can, without benefit of a police investigation, grand jury indictment, trial, sentencing hearing at which mitigating factors are considered, and without the benefit of years of appeal, mistakenly kill an innocent person in self-defense and not have committed a crime.

One wonders what argument can be made for reversing a conviction and sentence of death for a defendant when the DNA evidence is uncontraverted and unequivocal. One can anticipate there will be a day when the highest court in this land may opine that under those circumstances, even the most egregious of trial errors should not result in the setting aside of the verdict and sentence because it was harmless error. What was once good for the goose may well be the death of the gander.

Lee Wm. Atkinson

Gay Adoption

Burton Young is a respected colleague who recently traced opposition to gay adoption 35 years past to Anita Bryant and quotes Charles Dickens’ finding disfavored law “an ass.” My response traces this law back even further. In reading Burton’s recent letter questioning those who oppose gay adoption, I recall that he and I share friends and colleagues who are — homosexual. David is his openly gay son, judge, and respected colleague who I have held in high regard for 27 years since law school. It is common to approve of a person, without approving of that same person’s practices. Still, sometimes we must choose between following God’s will and the will of man.

In creation and throughout at least a 5,000-year history, God has kept children and homosexual adults separated. The practice of homosexuality is a biblical “abomination,” as stated in Leviticus 18:22, where God is directly quoted in the Torah, which is also the Old Testament. Moreover, Leviticus 18 closes at verses 29 and 30 stating:

“For whoever shall do any of these abominations, the persons that do them shall be cut off from among their people. So keep my charge never to practice any of these abominable customs which were practiced before you, and never to defile yourselves by them: I am the Lord your God.”

Thus, it is clear that God, the giver of law, hates the practice of homosexuality and His law and His will are to keep children and those practicing homosexuality apart.

Children are blessings of a good and loving God. Children, their innocence and training, remain valued and protected. Young children must not be thrust into living and defending adult sexual choices. Children are less able to thrive when exposed to gender disorientation pathology which leads to drugs abuse, partner violence, health problems, and decreased life expectancy.

Many gay rights activists have turned from God altogether and argue that lawyers and judges should wholly disregard all contrary Judeo-Christian precepts. Well-worn Bibles still adorn judicial chambers. Judicial investitures convene upon family Bibles and Torahs. And still, great leaders routinely seek godly wisdom in their work.

George L. Metcalfe


The recent letters debating the merits of gay adoption raise a more compelling question: Why in the world is The Florida Bar, or any of its officially sanctioned sections, taking any position whatsoever?

Gay adoption is a matter involving public policy judgments and should be determined on its merits through the democratic process by our elected representatives. This is not an issue which involves either the regulation of the legal profession, the “administration of justice,” or “advances the science of jurisprudence,” as defines The Florida Bar’s mission.

We lawyers have no special expertise on this topic beyond that which is possessed by our fellow citizens in other walks of life.

The mere fact that the gay adoption issue may result in the passage of a law is too tenuous a connection to the Bar. If not, then should the International Law Section take a stand on U.S. trade policy? Should the Health Law Section formulate a health care reform proposal? Should the Environmental Law Section opine on whether the theory of man-made global warming is really valid or nothing more than politicized junk science?

We lawyers are free to espouse any side of any public policy issue that moves us, whether as individuals or through advocacy groups. I simply do not want the imprimatur of The Florida Bar to be used to further any political agenda.

John B. DiChiara
Port St. Lucie

Top-Shelf Journalist

Martin A. Dyckman’s recent debate with attorneys who had represented members of the 1970s-era Florida Supreme Court, as reported in the August 1 News, certainly caught my attention. As former assistant general counsel to Gov. Reubin Askew in those days, our office had a particularly close relationship with Mr. Dyckman, who then worked as an investigative reporter for the St. Petersburg Times. He was the type of investigative reporter who would frequently share notes with those in govenment charged with investigating official misconduct, knowing that we would respect his role and treat the information accordingly.

He also rewarded our trust by not going public with his story until the investigation had been completed. Unfortunately, my former boss, then General Counsel Edgar M. Dunn, passed away years ago and is not able to present a lawyer’s case for the state. However, I can assure you that while some of those cases may not have risen to the level of criminal charges, there were solid cases of official misconduct which fully warranted their removal and/or resignation from public office.

I believe there is a higher standard for anyone who presumes to hold such high public office and that their professional and personal behavior must be beyond reproach. The real question, as in the case of Clarence Thomas’s later elevation to the Supreme Court of the United States, was not whether the allegations were established “beyond a reasonable doubt,” as Sen. Arlen Specter would have had it, but whether the facts established by a preponderance of the evidence fairly raised questions about the individual’s fitness for high office.

With reporters like Martin Dyckman, it was no accident that the St. Petersburg Times was a Pulitzer Prize-winning newspaper and among the best of the “Fourth Estate.” With lawyers like Ed Dunn, you can be sure that there also were very good lawyers on the side of the people.

Robert T. Mounts
Seoul, Korea

It’s More Than Rules

In an October 1 letter, a young lawyer wrote “.. . the only fundamental skills necessary for good lawyering is: how to find the rules, read them and apply them, regardless of practice area.”

This unfortunately sounds like the mindset of numerous young lawyers in my community who come out of lower-tier law schools and hang out their shingle instead of finding jobs where they could be mentored and get experience.

There is much more to “practicing” law than being able to find and apply statutes, cases, and rules. Many decisions that have to be made in a law practice involve issues that cannot be answered just by picking up a rule book. Bad decisions by lawyers affect people’s lives and cost everyone time and money.

There is a reason that judges and experienced lawyers speak so highly of the value of mentoring. When your practice is about picking up a rule book on the fly and doing something “because you can,” you frequently miss the whole question of “should you?” and you will always miss the nuances of why you should or shouldn’t.

Respected lawyers understand this, and they are respected because they get good cost- effective results, not because they know how to find the answers in statute or rule books. It is easy to spot a lawyer who has missed out on proper mentoring. It is not about your knowledge of the substantive law; it is about the decisions you make with that knowledge. If you are a young lawyer and don’t believe this, go ask a judge or a senior lawyer in your community if they believe mentoring is important, and why.

I agree with the writer that law school is about learning how to find answers. Mentoring is about learning how to make good decisions with those answers. As a lawyer, you are responsible for your own development. Mentoring is part of that development, and your clients, their adversaries, and the court should not have to bear the expense and burden of you learning “as you go along.”

It is wrong to encourage lawyers to skip that part of their training.

Jeffrey J. Sneed
Atlantic Beach

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