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Most capital cases on hold for now

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Florida prisonConsidered too high-impact for remote hearings, capital cases have mostly ground to a halt during the COVID-19 pandemic, according to a Criminal Law Section report.

The section’s Executive Council accepted the Capital Cases Committee report without comment at an October 9 virtual meeting.

“Capital trials are not proceeding at this time, nor are they likely to proceed in the near future unless and until jury selections with large panels can be conducted safely and in accordance with all health guidelines,” the report states.

The October 2 report reflects the result of an informal, 20-circuit survey and is signed by Fourth Judicial Circuit Judge Tatiana Salvador, the committee chair.

It notes that “some evidentiary hearings in capital cases are commencing in person in some jurisdictions,” but “other than motions involving speedy trial/demands filed in some criminal cases, there have been no other reported motions or pleadings unique to capital cases being currently introduced or litigated.”

In addition to the survey, the authors also consulted the Florida Association of Criminal Defense Lawyers, the Florida Public Defender Association, and the Florida Prosecuting Attorneys Association.

“The committee members concluded that based on the information from their respective jurisdictions and from these groups that it did not appear that neither the state, defense, nor judiciary was pushing capital case matters, instead proceeding with caution and proceeding only in person, as opposed to a virtual platform (in order to avoid any challenges or objections to the right to confrontation).”

In an interview, FPAA President and 18th Judicial State Attorney Phil Archer stressed that there is less pressure to move capital cases because the speedy trial rule has been suspended until 90 days after courts transition to Phase 3, the least restrictive.

Most circuits are in Phase 2 and just beginning to ramp up less complex jury trials Archer said, adding that in the 18th Circuit, Seminole County began jury trials two weeks ago and Brevard County plans to resume them next week.

“I think the key is getting that operation going,” he said. “As long as we can get jury trials running safe and efficiently, we’ll be okay.”

Capital cases require much larger jury pools and most courthouses can’t accommodate them under Phase 2 restrictions.

But capital cases can’t be put on hold too much longer, Archer said.

“Delays hurt the prosecution most, you always worry about delays,” he said. “Are the witnesses going to disappear or forget, or will it allow more time for possible witness intimidation?”

Florida Association of Criminal Defense Lawyers President Mitchell Stone said speedy trial isn’t an issue in most capital cases because they require months of preparation.

One of the biggest frustrations for defense attorneys has been lack of access, or limited access, to jailed clients, he said.

“Most of the clients are actually locked up in pre-trial detention, so you have an issue of just being able to communicate with your clients effectively in a safe environment,” he said.

Unfortunately, Stone said, the pandemic has left the judiciary with very few choices.

“Judges and administrators and stakeholders in the system realize that pausing everything until we can do it safely, was a smart move,” he said. “It’s very unfortunate because obviously we’re in a position where capital cases and complex cases are not able to be litigated.”

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