The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court.

Thomas Anthony Wyatt v. State of Florida


THE CASES THAT WERE DECIDED UNDER THE PREDECESSOR STATUTE REGARDING THE PUBLIC DEFENDERS, THAT YOU AT LEAST KNEW WHO THE OTHER CLIENT WAS. THERE WAS SOMETHING ELSE IN THE RECORD TO KNOW. HERE, CCR HAS SAID NOTHING AT ALL, OTHER THAN THAT THERE IS -- OTHER THAN USING THE LANGUAGE, THE LEGAL LANGUAGE OF THE STATUTE. WHAT I AM ASKING IS, ARE YOU REPRESENTING THAT, IN THIS CASE, THAT THERE IS NOT ONE MORE FACT THAT YOU CAN ALLEGE, WITHOUT REVEALING ATTORNEY-CLIENT COMMUNICATION?

YES, YOUR HONOR.

AND BECAUSE, IS IT, OTHERWISE CCR'S POLICY TO GIVE MORE FACTS, IF THOSE FACTS CAN BE GIVEN, WITHOUT REVEALING CLIET PRIVILEGE?

THAT'S CORRECT.

CAN YOU GIVE ME A HYPOTHETICAL? I GUESS, WITH THAT, SINCE YOU CAN'T REVEAL THIS ONE UNDER THE CIRCUMSTANCE RIGHT NOW, WITH HOW -- YOU COULDN'T EVEN TELL THE BARE MINIMUM THAT IS IN OTHER CASES. THAT IS IT WOULD BE A CONFLICT, BECAUSE WE ARE REPRESENTING THIS OTHER DEFENDANT AT THIS POINT. IN OTHER WORDS, IS THERE, CAN YOU GIVE ME SOME HYPOTHETICAL TO EXPLAIN HOW IT COULD BE THAT YOU CAN'T EVEN GIVE THE INITIAL FACTUAL BASIS FOR REQUESTING RELIEF? A HEARING IN THIS MATTER. THERE WAS, FILED BY COUNSEL, THIS MOTION. HOW LONG HAD CCR REPRESENTED THIS INDIVIDUAL AT THIS POINT?

CCR WAS APPOINTED TO THE CASE I BELIEVE IN 1996, AND --

THERE IS NO ALLEGATION IN THE MOTION, AS TO WHEN CCR BECAME AWARE THAT IT HAD THIS CONFLICT OR WHEN THIS CONFLICT A ROSE, IS THERE?

WELL, -- AROSE, IS THERE?

WELL, I THINK IF A CONFLICT ARE A RISES, UNDER ETHICAL RULES YOU CAN'T ACT --

MY CONCERN IS THAT HERE WE HAVE GOT A SITUATION WITH A MURDER THAT OCCURRED 13 YEARS AGO, AND AN UNREVIEWABLE SITUATION THAT STOPS THIS PROCESS, BY CCR, UNDER THE PROCEDURE THAT HAS BEEN USED HERE. AND THERE HAS GOT TO BE SOMETHING FOR SOUND JUDICIAL ADMINISTRATION THAT WE CAN DO TO GET AROUND THAT KIND OF PROBLEM.

WELL, I THINK WE BROUGHT THE CONFLICT TO THE COURT'S ATTENTION IMMEDIATELY. THE CONFLICT AROSE --

IS THERE ANYTHING THAT SAYS THAT IN THE PLEADINGS?

WE TOLD THE COURT. I MEAN, WE INFORMED THE COURT, AS MUCH AS WE COULD, THAT OUR REPRESENTATION OF MR. WYATT WAS CONFLICTED. WE, IF REVEALING ANYTHING TO THE COURT WOULD CREATE PROBLEMS FOR MR. WYATT, AND OUR RELATIONSHIP WITH HIM WAS ADVERSE. OTHER CLIENTS' RELATIONSHIPS WITH HIM IN OUR OFFICE WERE ADVERSE. WE TOLD THE COURT AS MUCH AS WE COULD. WE WERE AS CANDID WITH THE COURT AS WE COULD BE, AND I THINK THE ETHICAL RULES --

IS THERE A CONCERN HERE, ABOUT THIS DISCLOSURE, THAT IT IS BEING DISCLOSED TO TE JUDGE THAT IS GOING TO MAKE THE DETERMINATION IN THE MOTION FOR POSTCONVICTION?

UNDER -- WE ARE PROHIBITED FROM REVEALING THE ATTORNEY-CLIENT PRIVILEGE INFORMATION TO ANYONE, WHETHER OR NOT IT IS TO THE JUDGE OR, YOU KNOW, IN CAMERA OR --

WHAT I AM LOOKING FOR IS IF THERE IS A WAY THAT, PERHAPS, THE MATTER CAN BE PRESENTED TO ANOTHER JUDGE THAT IS NOT GOING TO SIT IN THIS CASE. I MEAN, IT JUST SEEMS TO ME, THAT TO INSTILL ARBITRARY POWER IN THE OFFICE OF CAPITAL COLLATERAL, TO GET, HAVE THIS PROCESS STOPPED, IS A VERY ADVERSE PRCEDURE. I MEAN DEMONSTRATED BY THIS CASE WHERE THERE HAS BEEN REPRESENTATION BY THIS OFFICE, FOR FOUR YEARS.

IT SEEMS, YOUR HONOR, THAT TEN THERE IS A PRESUMPTION THAT THE CAPITAL COLLATERAL COUNSEL IS ACTING UNETHICALLY, AND IN ONLY STOPPING A CASE WHEN THERE REALLY ISN'T A CONFLICT, AND I THINK THAT CAPITAL COLLATERAL COUNSEL'S HISTORY, AND CERTAINLY I DON'T THINK THIS CASE, NOTHING IN THIS CASE ILLUSTRATES THAT THERE IS ANYTHING UNETHICAL GOING ON. THERE IS NO CONSPIRACY TO DELAY CASES. I MEAN, WE CERTAINLY GO FORWARD WHEN WE ARE NOT CONFLICTED, ON CASE AFTER CASE AFTER CASE, AND SO THE STAT'S ARGMENT, AND I THINK YOUR POINT THAT WE CAN JUST STOP THESE THINGS, WHEN WE DON'T WANT TO PURSUE, YOU KNOW, RELIEF, IS, REALLY, IT IS NOT FOUNDED IN THIS CASE AND IT IS NOT WELL-FOUNDED IN OUR HISTORY.

MY ACTUAL POINT, AND I AM NOT TRYING TO MAKE AN ACCUSATION ABOUT ANYBODY. I AM JUST TRYING TO FIGURE OUT HOW THIS PROCESS CAN WORK, BECAUSE THERE IS HARDLY ANYTHING IN THE LAW THAT IS TOTALLY UNREVIEWABLE BY A COURT. AND, NOW, THERE ARE SOME MATTERS THAT THE PROSECUTION CAN BRING, THAT ARE HARD TO REVIEW, BUT IT SEEMS TO ME THAT WE ARE RIGHT HERE, IN A SITUATION THAT IS BASICALLY UNREVIEWABLE.

TELL US HOW THE COURTS HAVE TREATED THE PUBLIC DEFENDER IN THE CONFLICT STATUTE, BOTH BEFORE AND AFTER ITS AMENDMENT IN 1999. IS THAT THE ANALOGY THAT YOU RELY ON?

THAT'S CORRECT, YOUR HONOR.

TELL US.

IN THE BAD CASE, WHICH THIS COURT INTERPRETED, IT REGARDED 1363, WHICH REGARDED PUBLIC DEFENDERS AND TRIAL COUNSEL, AND IN THAT CASE, THE STATUTE IS SUBSTANTIALLY SIMILAR TO THE STATUTE GOVERNING THE CAPITAL COLLATERAL COUNSEL TODAY, THE CONFLICT ISSUE IN THE PUBLIC DEFENDER'S DISCRETION IS LEFT, AND IF CONFLICT AROSE, THE PUBLIC DEFENDER WAS REQUIRED, UNDER ETHICAL RULES, TO BRING THAT CONFLICT TO THE COURT, INFORM THE COURT THAT THEY WERE CONFLICTED, AND REQUEST THAT A NONCONFLICT ATTORNEY BE APPOINTED FOR THEIR CLIENT, AND SOME THINGS HAPPENED AND DEVELOPED, I THINK, IN THE CASE LAW, WHERE PUBLIC DEFENDERS WERE USING THAT STATUTE, TO REMOVE THEMSELVES FROM CASES, BASED ON FUNDING ISSUES AND STAFFING ISSUES, AND THAT BECAME A PROBLEM, BECAUSE THERE WAS NO DISCRETION FOR THE TRIAL COURT TO INQUIRE ANY FURTHER OR TO REWEIGH FACTORS. IT WAS JUST AUTOMATIC. AND SO IN 1999, THE LEGISLATURE AMENDED THAT STATUTE AND INCLUDED A PROVISION THAT DID ALLOW DISCRETION FOR TRIAL COURTS TO REVIEW THE CONFLICT ISSUE. HOWEVER, EVEN IN DOING THAT, THEY INCLUDED LANGUAGE THAT SAID THE COURT SHALL REVIEW AND MAY INQUIRE OR CONDUCT A HEARING INTO THE ADEQUACY OF THE PUBLIC DEFENDER'S REPRESENTATION, REGARDING A CONFLICT OF INTEREST WITHOUT REQUIRING THE DISCLOSURE OF ANY CONFIDENTIAL COMMUNICATION.

NOW, HAS THE CCR CONFLICT STATUTE BEEN SIMILARLY AMENDED?

NO, YOUR HONOR. IT HASN'T BEEN AMENDED, AND I THINK PERHAPS THE REASONING IS BECAUSE CCR HASN'T ABUSED THE STATUTE, AND IN MY APPENDIX TO THE REPLY BRIEF, I DISCUSSEDED -- I INCLUDED EVERY CASE WITHIN OUR CURRENT TENURE, WHERE WE HAVE DECLARED CONFLICTS, AND IN FACT THERE ARE CASES IN THERE WHERE WE DID REVEAL, WHERE IT WASN'T A PROBLEM TO REVEAL THE CONFLICT, WE DID SO.

AND YOUR ANALOGY IS THAT, UNDER THE PREVIOUS STATUTE FOR THE PUBLIC DEFENDERS, THAT THIS COURT INTERPRETED THAT, THAT IT WAS THE PUBLIC DEFENDER'S DECISION THAT WE WERE RELYING ON THE GOOD FAITH OF THE PUBLIC DEFENDERS WITH THE LANGUAGE.

THAT'S CORRECT.

AND THAT THAT IS SIMILARLY, HERE, THE INTERP TAING -- THE INTERPRETATION YOU ADVOCATE, WOULD BE TO RELY ON THE INTEGRITY OF CCR TO LIMIT THE USE OF THAT. IS THAT SPECIFICALLY --

EXACTLY. AND I WOULD JUST POINT OUT --

JUSTICE SHAW HAD A QUESTION.

I THINK YOU ARE BORDERING ON THE QUESTION THAT I HAD. YOU MAKE THE STATEMENT THAT, IN YOUR BRIEF, THAT YOU HAVE LESS PROTECTION THAN THE PUBLIC DEFENDERS HAVE STATUTORY. ARE YOU ADD -- ARE YOU ADVOCATING THAT YOU WANT THE SAME PROTECTION THAT THE PUBLIC DEFENDERS HAVE, OR DO YOU WANT SOMETHING MORE THAN THE PUBLIC DEFENDERS HAVE?

ACTUALLY I THINK RIGHT NOW CURRENTLY WE HAVE MORE PROTECTION THAN THE PUBLIC DEFENDER, BECAUSE OF THE CHANGE IN THE STATUTE FOR THEM, THAT NOW THE COURT IS ACTUALLY REQUIRED TO WEIGH THE ISSUES AND IN THEIR CONFLICT, UNLESS IT INVOLVES THE ATTORNEY-CLIENT PRIVILEGE, AND THEN THEY ARE NOT ALLOWED TO REQUEST THAT INFORMATION OR TO INQUIRE INTO THAT. SO ALL WE ARE ASKING IS THAT THE STATUTE BE INTERPRETED THE WAY THE STATUTE SHOULD BE INTERPRETED, UNDER THE CLEAR LANGUAGE, AND IT IS CLEAR AND UNAMBIGUOUS, THAT THE CCR SHALL DETERMINE IF THERE IS A STATUTE, AND IF THEY BRING THAT TO THE COURT, THE COURT SHALL APPOINT ANOTHER ATTORNEY, AND I THINK TO JUST ADDRESS SOMETHING THE STATE SAID IN THEIR BRIEFS, THAT THIS COULD GO ON AD INFINITUM, THERE IS A SYSTEM IN PLACE NOW, WHERE THERE IS THREE REGIONAL COUNSELS AND THERE IS A REGISTRY COUNSEL, AND WHEN WE HAVE A CONFLICT, IT IS OUR OBLIGATION TO TELL THE COURT WE HAVE A CONFLICT, AND WE CANNOT EFFECTIVELY REPRESENT THIS CLIENT, AND IT IS, ALSO, AFFECTING OTHER CLIENTS, AND AT THAT POINT, UNDER THE FLORIDA RULE OF PROFESSIONAL CONDUCT, 4-116, ON WITHDRAW FROM CASES, THE COMMENTS OF THAT RULE SAYS THAT THE LAWYER'S STATEMENT THAT PROFESSIONAL CONSIDERATIONS REQUIRE DETERMINATION -- REQUIRE TERMINATION OF THE ORIGINAL REPRESENTATION ORDINARILY SHOULD BE SUFFICIENT, AND I THINK THAT, ALSO, HAS A ROLE IN THIS. WE ARE FOLLOWING OUR ETHICAL OBLIGATIONS TO MR. WYATT. WE HAVE BROUGHT THE CONFLICT FORWARD. WE ARE NOT PERMITTED TO REVEAL THE CONFLICT, BECAUSE IT IS BASED ON ATTORNEY-CLIENT PRIVILEGE. WE HAVE REVEALED AS MUCH AS WE POSSIBLY CAN. IN OUR PASS THE, WE HAVE REVEALED -- IN OUR PAST, WE HAVE REVEALED MORE THAN WE CAN.

BUT IN THE PAST YOU HAVE AN UNREVIEWABLE SITUATION THAT THE CHIEF JUSTICE WAS REFERRING TO, AND THAT IS UNIQUE IN THE LAW.

IT IS UNIQUE. I THINK THAT THE ATTORNEY-CLIENT PRIVILEGE, AS WE SEE IN THE AMENDMENT TO SECTION 2753, EVEN WITH THE PUBLIC DEFENDER, WHO NOW COMES FORWARD AND SAYS I HAVE A CONFLICT. I CANNOT REVEAL IT, IT IS BASED ON ATTORNEY-CLIENT PRIVILEGE, EVEN THAT STATUTE WOULDN'T ALLOW FOR THE COURT TO INQUIRE ANY FURTHER, SO I DO THINK THAT THERE IS A SCENARIO, WHERE, WHEN THE ATTORNEY-CLIENT PRIVILEGE IS INVOLVED AND IT COULD HARM THE CLIENT TO REVEAL THAT INFORMATION, THERE IS NO ABILITY TO REVIEW THOSE SITUATIONS, AND I THINK, AS OFFICERS OF THE COURT, CERTAINLY THERE HAS TO BE THAT TRUST THAT THE ATTORNEYS ARE ONLY GOING TO MAKE THOSE REPRESENTATIONS, WHEN THEY ARE, IN FACT, ACCURATE AND TRUE, AND I WOULD, IF POSSIBLE, I WOULD LIKE TO RESERVE THE REST OF MY TIME FOR REBUTTAL. MR. CHIEF JUSTICE

THANK YOU VERY MUCH.

GOOD MORNING. MAY IT PLEASE THE COURT. CELIA TERENZIO, ON BEHALF THE PEOPLE OF FLORIDA. THE TRIAL COURT DENIED THIS MOTION, BASED ON THE FACT THAT IT WAS LEGALLY INSUFFICIENT, AS PLED. WE ARE NOT UP HERE, ASKING FOR ANYTHING NEW, ANYTHING EXTRAORDINARY. THIS HAS NOTHING TO DO WITH 27.703. IT HAS NOTHING TO DO WITH THE PUBLIC DEFENDER'S STATUTE ON THIS ISSUE THAT WAS AMENDED.

WHY DOESN'T IT HAVE SOMETHING TO DO WITH THAT, IF WE, IF I UNDERSTAND IT CORRECTLY. IF, PREVIOUSLY, BEFORE THE 1999 AMENDMENT, WE, IN ESSENCE, SAID THE PUBLIC DEFENDER CAN GO INTO COURT AND CLAIM A CONFLICT, AND THAT IS UNREVIEWABLE. THAT IS THAT, AND THAT IS THE WAY THAT WE INTERPRETED THAT, AND IF THE LANGUAGE HERE, WITH REFERENCE TO CCR, CLAIMING CONFLICT, IS EXACTLY THE SAME, AS IN THAT STATUTE, WHY SHOULDN'T WE INTERPRET THIS STATUTE THE SAME WAY WE HAVE ALREADY INTERPRETED THE CONFLICT STATUTE OF THE PUBLIC DEFENDERS? AS I SAY, REALIZING THAT, IN 19999, THAT THE STATUTE -- THAT IN 1999, THAT THE STATUTE CHANGED FOR THE PUBLIC DEFENDERS ALTHOUGH IT HAS THE QUALIFICATION, BUT IT DID NOT CHANGE FOR CCR, SO WHY SHOULDN'T, IF THE LANGUAGE IS THE SAME AND BASICALLY WE ARE TALKING ABOUT THE SAME KIND OF ISSUE, WHY SHOULDN'T WE INTERPRET THE CCR STATUTE, THE SAME WAY WE PREVIOUSLY INTERPRETED THE PUBLIC DEFENDER STATUTE?

BECAUSE THE OLD STATUTE AND THE NEW STATUTE, UNDER GUZMAN AND BACK, SAID THAT -- AND BABB, SAYS TAKE, WHEN A FACTUAL REPRESENTATION IS MADE BY CCR, YOU TAKE THOSE FACTS TO BE TRUE. THE PROBLEM IS, IN THIS CASE WE HAVE NO FACTS. THERE IS ABSOLUTELY NOTHING IN THIS MOTION.

ISN'T THAT THE WAY THAT IT WAS UNDER THE PUBLIC DEFENDER STATUTE?

NO, SIR. ABSOLUTELY NOT.

IN OTHER WORDS, THE PUBLIC DEFENDER STATUTE, TELL ME WHAT THE DISTINCTION IS.

WELL, ALL YOU HAVE TO DO IS LOOK AT THIS COURT'S CASE LAW, AND YOU CAN START WITH GUZMAN AND BABB AND EVERY OTHER CASE THAT WE CITED IN OUR BRIEF. IT PUTS THE CONFLICT IN CONTEXT. FOR INSTANCE, IN GUZMAN, IT WAS A STATE WITNESS, THE STATE'S MAIN WITNESS, WHO IS A CURRENT CLIENT OF THE PUBLIC DEFENDER'S OFFICE. IN BACK IT -- IN BABB, IT WAS A FORMER CLIENT WAS A STATE WITNESS. AGAIN, IT PUTS THE RELATIONSHIP IN CONTEXT. HERE, WE DON'T EVEN HAVE NAMES OF PEOPLE.

BUT DIDN'T WE SAY, IN BABB, THAT THE TRIAL COURT HAD NO AUTHORITY TO INQUIRE INTO THE UNDERLYING CIRCUMSTANCES OF THE CONFLICT?

ABSOLUTELY.

THAT IT WAS STRICTLY A CALL TO BE MADE AND A DETERMINATION TO BE MADE, BY THE PUBLIC DEFENDER? NOW, IF THAT IS WHAT WE SAID THERE, WITH THE EXACT SAME LANGUAGE, THAT IS IN THE CCR STATUTE, THEN WHY WOULDN'T -- WOULD WE, WOULD YOU AGREE THAT WE SHOULD SAY THE SAME THING HERE, WITH THE LANGUAGE IN THE CCR STATUTE, OR SHOULD WE SAY SOMETHING DIFFERENT THAN WE SAID IN BABB?

NO. I THINK IT IS EXACTLY THE SAME, AND I THINK THIS IS CONSISTENT WITH GUZMAN AND BABB, BECAUSE --

SO THE CALL IS ON CCR'S PART?

I AM SORRY. I DON'T UNDERSTAND THE QUESTION, JUSTICE ANSTEAD.

IN BABB, WE SAID THE CALL WAS TO BE MADE AND THE DETERMINATION MADE BY THE PUBLIC DEFENDER NOT BY THE COURT.

BUT ONCE YOU HAVE PLED A LEGALLY-SUFFICIENT MOTION, THEN, AT THAT POINT, YOU HAVE TO TAKE THEIR REPRESENTATION AS TRUE AND DON'T LOOK BEHIND IT. THEY HAVE NOT EVEN GOTTEN TO FIRST BASE. THAT IS OUR POINT.

WELL, IF I UNDERSTAND -- MR. CHIEF JUSTICE

JUSTICE HARDING HAD A QUESTION.

WHAT SHOULD THEY HAVE ALLEGED  ALLEGED? THEY ALLEGED THAT THE BASIS IS ON THE GROUND THAT IT IS CONFIDENTIAL PRIVILEGED INFORMATION, AND THAT IS THE SOLE GROUND, IS IT NOT, FOR -- GO AHEAD.

THE ACTUAL MOTION READS, GREGORY SMITH HERE BY NOTIFIES THIS COURT OF A CONFLICT OF INTEREST IN CONTINUED REPRESENTATIN OF THOMAS WYATT. PERIOD. THAT IS IT. THEN, AT THE HEARING, IN THE RECORD, AT PAGE 24, WHEN THE STATE, ACTUALLY, AND THE JUDGE ASKED THEM TO GIVE A LITTLE MORE INFORMATION, CCR SAYS WE ARE NOT HERE BECAUSE WE CANNOT WORK TOGETHER OR WE CANNOT GET ALONG. THE REASON WE ARE HERE IS THAT CONTINUED REPRESENTATION OF MR. WYATT WOULD BE ADVERSE TO HIS OWN INTEREST THES AND ADVERSE TO INTEREST THE TO OUR OTHER CLIENTS IN OUR OFFICE. THAT IS IT. THAT IS THE EXTENT OF THE MOTION  MOTION.

IF THEY HAD ALLEGED THAT THE REVELATION OF THE REASON WAS THAT IT WOULD VIOLATE THAT PRIVILEGE, WOULD THAT HAVE BEEN SUFFICIENT IN YOUR JUDGMENT?

NO, SIR. BECAUSE THEY DID ALLEG THT. AS A MATTER OF FACT, THEY RELID ON THE ATTORNY-CLIENT -- ON THE CODE OF ETHIS THAT, EVEN REVEALING THE NAMES OF THE OTHER CLIENTS --

WHAT, WHO IS GOING TO MAKE THAT DETERMINATION?

WELL, AT THAT POINT, THE STATE AGREED AND SUGGESTED TO THE COURT THAT TERE BE AN IN CAMERA, AND --

IS THERE A PROVISION FOR REVEALING OF PRIVILEGED INFORMATION IN AN IN CAMERA HEARING?

YES, SIR, AND THIS COURT, CASE LAW THAT WE CITED TO AT THE HEARING, TREPAL, FOR INSTANCE, AND BROOKS, IN TREPAL, WAS A SIMILAR THING. IT WASN'T A CONFLICT ISSUE, BUT IT WAS A DISCOVERY ISSUE, AND I BELIEVE, ON 119 INFORMATION. AND COUNSEL DID NOT WANT TO REVEAL IT, BECAUSE THEY SAID THAT THERE MAY BE PRIVILEGED INFORMATION THERE.

LET'S JUST GO BACK TO WHERE WE ARE NOW. EVEN UNDER THE NEW STATUTE, THOUGH, GOVERNING PUBLIC DEFENDERS, IT SAYS THAT, IF THE, TO INQUIRE FURTHER WOULD ENCROACH ON CONFIDENTIAL COMMUNICATIONS THAT THAT DOESN'T HAPPEN, AND SO WE ARE REALLY FACED HERE, IN TERMS OF THE STATE HAS AN INTEREST IN HAVING THIS CASE GO FORWARD AND NOT HAVE DELAY. WE EITHER HAVE TO, AT SOME POINT LOOK AT THE HISTORY OF THE CCR'S AND SEE WHETHER, IN OTHER, THEY ARE DOING THIS IN AN ONGOING BASIS AND ABUSING IT, OR TAKE THEM, IN GOOD FAITH, THAT IN THIS CASE, WHATEVER THEY HAVE LEARNED FROM MR. WYATT, IS SUCH THAT, EVEN IF THEY REVEAL IT TO THE JUDGE, THAT IT WILL IMPAIR THEIR REPRESENTATION OF OTHER CLIENTS, AND THAT IS WHAT IS BEING SAID. WHY, WHAT IS THE INTEREST OF GOING ANY FURTHER, IF THAT IS A GOOD FAITH REPRESENTATION MADE BY AN ATTORNEY WHO IS GOVERNED BY THE CODE OF PROFESSIONAL PONTE -- OF PROFESSIONAL RESPONSIBILITY? I AM TORN, BECAUSE I AGREE WITH YOU, TOO, THAT THESE OTHER CASES HAD MORE FACTS. AT LEAST YOU KNEW WHO THE CLIENT WAS, BUT WHAT THEY ARE TELLING US HERE IS, IF THEY GO ANY FURTHER, IT WILL IMPAIR THEIR REPRESENTATION, AND IT WILL BE ADVERSE TO OTHER CLIENTS, AND THIS IS DIFFERENT FROM ANY OTHER MOTION THEY FILED, I GUESS, AND THEY HAVEN'T DONE THIS IN OTHER CASES.

I DON'T KNOW IF THAT IS TRUE OR NOT.

WHERE THEY HAVE ATTACHED INFORMATION, AND LIKE THE PUBLIC DEFENDERS, THIS GOES TO ANOTHER CCR OFFICE. IT IS NOT LIKE THIS GOES OUT TO A PRIVATE ATTORNEY, SO THERE IS REALLY NO INTEREST THAT CCR OFFICES CAN POSSIBLY HAVE IN THIS POLICE POLITICAL ENVIRONMENT TO JUST CONFLICT OFF CASES RIGHT BEFORE TRIAL.

TWO ANSWERS TO THAT, JUSTICE PARIENTE. NUMBER ONE, HOW DO YOU KNOW THAT THIS CASE SHOULD, THEN, GO TO ANOTHER CCR OFFICE, WITHOUT HAVING ANY IDEA AT ALL, WHO THE PEOPLE ARE THAT ARE INVOLVED, LET ALONE THE RELATIONSHIP OF THOSE PEOPLE AND HOW THAT IMPACTS ON THIS CASE. THE OTHER ANSWER TO THAT --

THAT IS A GOOD QUESTION FOR YOUR COLLEAGUE.

THE OTHER POINT IS, THIS STAR CHAMBER REQUEST, BECAUSE I CAN'T THINK OF ANOTHER PHRASE, AND THIS IS NOT, WE ARE NOT IMPUGNING THE INTEGRITY OF ANY LAWYER, BUT ANY LAWYER WHO PRACTICES, CIVIL LAWYER, CRIMINAL LAWYER, GOVERNMENT LAWYER WHO PRACTICES AND FILES A MOTION IN ANY TRIAL COURT, IS OBLIGATED TO FOLLOW THE BASIC TENET AND FILE A LEGALLY-SUFFICIENT MOTION, SO THEN WHAT THEY ARE REQUESTING IS THAT THEY BE AND SOLVED OR THAT OBLIGATION DOESN'T HAVE TO APPLY TO THEM, AND I THINK THAT IS AN EXTREMELY EXPANSIVE --

HOW WOULD YOU EXPAND THIS INSUFFICINT MOTION, BECAUSE YOU ARGUE THAT, AT THE HEARING, IT WOULD IMPAIR THEIR CONTINUED REPRESENTATION OF THIS CLIENT AND OTHER CLIENTS, CORRECT?

YES.

SO WHAT MORE SHOULD THEY HAVE ADDED, TO MAKE THIS LEGALLY SUFFICIENT?

NUMBER ONE, WHO ARE THOSE OTHER CLIENTS?

HOW WOULD THAT HAVE HELPED?

WELL, THAT MAY, THEN, HAVE HELPED THE TRIAL COURT IN APPOINTING ANOTHER CCR REPRESENTATIVE. HOWEVER, BUT, BEFORE YOU EVEN GET TO THAT, AGAIN, TO BE LEGALLY, TO BE SUFFICIENTLY PLED WE STILL BELIEVE THAT YOU HAVE TO NAME THE PEOPLE, AND AT LEAST GIVE THE CONFLICT SOME CONTEXT. FOR INSTANCE, THEN, THAT, THERE IS INFORMATION THERE THAT IS GLEANED TO THE REPRESENTATION OF EITHER/OR THAT IS GOING TO IMPACT THEIR REPRESENTATION ON THOMAS WYATT, IN THIS CASE. THEY DON'T HAVE TO SAY WHAT IT IS. WE ARE NOT ASKING FOR THAT, BUT AT LEAST PUT IT IN PERSPECTIVE. I MEAN, THIS COURT, IN THE CERTIFICATION OF CONFLICT IN THE PD'S FOR THE TENTH CIRCUIT AND IN THE SITKA CASE, THIS COURT TALKS ABOUT CAREFUL SCRUTINY OF MOTION TO SAY WITHDRAW, THAT INVOLVE DELAY AND THE RAMIFICATIONS OF MONEY, THE BURDEN THAT IS GOING TO FALL ON THE OTHER AGENCIES. THAT IS ALL WE ARE ASKING HERE, IS THAT THEY BE REQUIRED TO PLEAD A SUFFICIENT MOTION. THIS HAS NOTHING TO DO WITH THE NEW CONFLICT STATUTE, 53, PARAGRAPH 3. IT HAS NOTHING TO DO WITH HOW THAT PLAYS WITH 27.703. I MEAN, FOR INSTANCE, THIS COURT AND IT DOESN'T APPLY IN THIS CASE, BUT I THINK IT IS INSTRUCTIVE --

LET ME ASK YOU A PRACTICAL QUESTION. HOW MUCH OF A PROBLEM IS THIS? IS THIS A MAJOR PROBLEM? HAS CCR BEEN ABUSING THE -- IT IS THE FIRST TIME -- I HAVE BEEN ON THE COURT A LONG TIME. THIS IS THE FIRST TIME THIS HAS COME UP, SO JUST HOW MUCH OF A PRACTICAL PROBLEM IS IT? ARE WE MAKING A MOUNTAIN OUT OF A MOLE HILL HERE?

AGAIN, I DON'T KNOW HOW MANY TIMES. I KNOW THEY FILED IN THEIR APPENDIX, THE MOTION --

YOU HAVE BEEN WITH THE SYSTEM A LONG TIME. HAVE YOU FOUND THAT CCR IS ABUSING IT?

BUT, AGAIN, I DON'T THINK THAT THAT IS THE POINT. WE ARE NOT CASTING --

BUT YOU ANSWER YES OR NO. YOU EITHER --

NO. NOT AT ALL. BUT FOR INSTANCE, IN THIS CASE, AFTER REPRESENTING THIS MAN FOR FOUR AND-A-HALF YEARS, ALL OF A SUDDEN A CONFLICT POPS UP? IT IS NOT THAT WE ARE CASTING ASPERSIONS BUT, AGAIN, TO GIVE A BLANKET, CARTE BLANCHE BLANK CHECK TO LET THEM GET OFF AT ANY CASE AT ANY TIME, THAT IS THE DANGER. THE SYSTEM WILL STOP. IT IS NOT NECESSARILY THAT --

IT WOULD AND PROBLEM, IF CCR WAS OPTING OUT OF CASES, BIAS EARTHING -- BY ASSERTING THAT THEY HAD THIS CONFLICT, BUT --

FOR INSTANCE, JUSTICE SHAW --

-- I DON'T KNOW WHETHER THAT IS THE CASE, OR HETHER WE JUST ARE BEATING THIS HORSE TO DEATH. GO AHEAD. I AM SORRY.

THAT'S OKAY. INSTRUCTIVE IN THIS CASE, I THINK, IS THIS COURT'S RECENT AMENDMENT TO 3.851, WHERE THIS COURT SAID THAT, AFTER 30 DAYS, AND HERE WE ARE TALKING ABOUT FOUR AND-A-HALF YEARS, BUT AFTER 30 DAYS, WHEN CCR FILES A MOTION TO CONFLICT OUT OF THE CASE, THEY, THE ALLEGATION MUST BE SPECIFIC, AND THEN THE JUDGE CAN IN ITS DISCRETION GRANT OR DENY IT, AND, AGAIN, THAT DOESN'T APPLY HERE, BUT --

IF CCR SAYS I WANT OUT OF THE CASE, BUT I WILL HAVE TO DIVULGE A CLIENT CONFIDENCE, SHOULD THAT ALLOW THEM TO GET OUT OF THE CASE?

I THINK AT THAT POINT, THEN, THERE SHOULD BE AN IN CAMERA, AND IF IT NEEDS TO BE HELD BY ANOTHER JUDGE, FINE. AS THIS COURT HAS SAID IN TREPAL AND IN BROOKS, THAT IF THERE IS A CHANCE THAT CONFIDENCES WILL BE DIVULGED, DUE AN IN CAMERA. THAT IS NOTHING NEW. AGAIN THAT IS A BASIC TENET. THERE ARE TRIAL JUDGES HERE, INADMISSIBLE AND CONFIDENTIAL AND DAMAGE -- THERE ARE TRIAL JUDGE THAT IS HEAR INADMISSIBLE AND CONFIDENTIAL AND DAMAGING INFORMATION ALL THE TIME. BUT ISN'T THAT A PROBLEM WITH THE IN CAMERA, THAT IF THE JUDGE HEARS THIS, HE MIGHT BE PREJUDICED BY WHAT HE HEARS.

JUDGES HEAR, NUMBER ONE, THE EASIEST SOLUTION TO DO THAT WOULD BE TO HAVE ANOTHER JUDGE HERE. TRIAL JUDGES, I MEAN, THEY RULE ON MOTION TO SAY SUPPRESS CONFESSIONS, PRIOR TO -- THEY HEAR THE MOST DAMAGING OF INFORMATION AND YET THEY ARE STILL THE FINAL ARBITER OF THOSE CASES.

AGAIN, TRYING TO FOLLOW-UP ON WHAT JUSTICE SHAW SAID, YOU SAID YOU REALLY DON'T KNOW IF THIS IS BEING ABUSED. YOU DON'T KNOW HOW MANY TIMES IT HAPPENS, BUT REALLY WE ARE GETTING DOWN TO A POLICY QUESTION, BECAUSE WHAT YOU ARE SAYING IS THAT, IF WE ALLOW IT HERE, THEN CCR CAN COME IN ANY TIME AND JUST STOP THE PROCEEDINGS AT ANY TIME WITH ITS BARE BONES MOTION, SO THE IMPLICATION IS THAT, IF WE UPHOLD CCR'S RIGHT IN THIS CASE, TO WITHDRAW AND ALLOW ANOTHER COUNSEL TO COME IN, I GUESS THEY CAN DIVULGE WHETHER IT WOULD BE OKAY FOR ANOTHER OFFICE TO REPRESENT, YOU KNOW, REPRESENT THIS PERSON, THAT THIS IS GOING TO, NOW, THIS WILL STOP POSTCONVICTION PROCEEDINGS IN THE FUTURE, BUT YET THERE IS NO PATTERN THAT IS IN THIS RECORD TO INDICATE ANYTHING LIKE THAT HAS HAPPENED OR WILL, WOULD CONTINUE TO HAPPEN IN THIS CASE, SO THERE IS POLICY INVOLVED, ISN'T THERE?

SURE THERE IS. AND, AGAIN, I THINK MAYBE THIS COURT, IN THE AMENDMENT TO THE RULE, IS POSSIBLY GOING TO BE DOING AWAY WITH THAT POSSIBLE PROBLEM, BY REQUIRING SPECIFIC FACTS BE PLED, IF THE MOTION IS BEYOND 30 DAYS. BUT IN TERMS OF THIS CASE, I THINK THERE IS SIGNIFICANT DELAY NOT IN TERMS THAT THE MOTION HASN'T GONE FORWARD BUT IN TERMS THAT, I MEAN, THE POSTCONVICTION MOTION, BUT IN TERMS THAT IT HAS TAKEN FOUR AND-A-HALF YEARS TO FIND A CONFLICT? I MEAN, I THINK THEY HAVE THE BURDEN TO DEMONSTRATE OTHERWISE. JUST LIKE ANY LAWYER HAS AN OBLIGATION TO PROVIDE SUFFICIENT  SUFFICIENTLY-PLED MOTION, AND IN TERMS OF PUBLIC POLICY, I STILL BELIEVE IT IS VERY DANGEROUS TO GIVE SUCH POWER, UNFETTERED POWER BEYOND REVIEW, TO ANY AGENCY, AND JUSTICE PARIENTE, WHAT YOU JUST SAID, AS A MATTER OF FACT, IS, I THINK, IS SCARY, IN THE SENSE THAT THEN -- IF THEY CAN'T DIVULGE IT, THEN YOU TELL THEM THEY CAN SUGGEST TO THE COURT, THEN, WHICH OTHER AGENCY SHOULD REPRESENT THIS PERSON. AGAIN, THEY ARE RUNNING THE SHOW. THAT IS NOT -- THAT IS NOT THIR DOMAIN. SO, AGAIN, WE WOULD ASK THAT THE THIS COURT UPHOLD THE TRIAL COURT'S ORDER, FINDING THAT THE MOTION WAS LEGALLY INSUFFICIENT AS PLED. THANK YOU.

IF I JUST MAY BRIEFLY ADDRESS THE NEW RULE, THE NEW RULE DOESN'T REQUIRE ANY -- IN FACT, THE NEW RULE REFERS COUNSEL TO STATUTE SECTION 27.703, IN DETERMINING A CONFLICT, AND THAT IS STILL IN THE DISCRETION THEN, OF THE CCR COUNSEL AND NOT WITH THE TRIAL COURT, SO THERE IS NOTHING IN THE NEW RULE THAT CHANGES THE EXISTING STATUTE OR THE WAY THAT CCR IS TO CONDUCT THEMSELVES, UNDER THAT STATUTE. I WOULD, ALSO, LIKE TO ADDRESS A COUPLE OF OTHER POINTS. WE OFFERED TO GET A FLORIDA BAR OPINION IN THIS CASE. THE CIRCUIT COURT JUDGE IS VERY CONFLICTED. HE URGED US TO TAKE THIS UP ON APPEAL, AND HE GAVE US 30 DAYS BEFORE HIS ORDER WOULD EVEN GO INTO EFFECT, SO THAT WE COULD BRING THIS TO THIS COURT, AND HIS UNDERSTANDING WAS THAT HE COULDN'T PIERCE THE ATTORNEY-CLIENT PRIVILEGE. BUT BECAUSE OF THE TREPAL CASE AND THE BROOKS CASE, WHICH REALLY HAVE NOTHING TO DO WITH THIS SITUATION, HE AGREED TO GRANT THE STATE'S MOTION. BUT WE OFFERED TO GET AN OPINION  OPINION. HE DECLINED THAT OFFER. SUBSEQUENT WE DID GET AN OPINION FROM THE FLORIDA BAR, WHICH CONFIRMED OUR REPRESENTATIONS TO THE COURT THAT WE WERE CONFLICTED.

WHAT DO YOU MEAN? I AM SORRY. YOU GAVE, YOU REVEALED TO THE FLORIDA BAR OF ETHICS WHAT THE UNDERLYING --

CORRECT. WE RECEIVED A FLORIDA BAR OPINION CONFIRMING WHAT WE HAD ALREADY TOLD THE COURT, THAT WE WERE CONFLICTED, THAT WE HAVE ADVERSE INTERESTS, AN I HAVE THOUGHT ABOUT A SCENARIO WHERE YOU COULD NOT REVEAL ANY INFORMATION. IF YOU HAVE A CLIENT WHO SOMEHOW IMPLICATES ANOTHER CLIENT IN YOUR OFFICE, WITH HIS CRIME OR SOME OTHER CRIME, I CERTAINLY THINK TELLING THE COURT ANYTHING WOULD BE ADVERSE TO THOSE CLIENTS, AND SO THAT WOULD BE A SCENARIO, AND THAT ISN'T THE SCENARIO HERE, BUT THAT WOULD AND SCENARIO WHERE I THINK THE SAME THNG WOULD HAPPEN, WHERE YOU WOULD HAVE TO SAY I CAN'T REVEAL ANYTHING. I CAN'T REVEAL NAMES OR SPECIFICS OR DETAILS.

BUT YOU END UP WITH A LOT OF VARIOUS SCENARIOS OBVIOUSLY. ATTORNEY-CLIENT PRIVILEGE CAN BE WAIVED. CORRECT?

WELL, IT COULD BE WAIVED. SURE, IT COULD BE WAIVED.

IT IS THE CLIENT'S TO ASSERT IT NOT THE LAWYER'S CORRECT?

ABSOLUTELY.

AND ALSO CONFLICT OF INTEREST CAN BE DENIED ON THE BRACES OF -- ON THE BASIS OF ESTOPPEL, CAN IT NOT, IF YOU WAIT TOO LONG TO ASSERT IT? DON'T WE HAVE CASES THAT SAY THAT, RIGHT ON THE EVE OF TRIAL, SOMEONE COMES IN AND SUDDENLY SAYS THEY HAVE GOT A CONFLICT?

WELL I THINK THOSE SCENARIOS ARE SCENARIOS WHEN THE COURT WEIGHED THE CONFLICT.

IF THE COURT CAN'T WEIGH IT, IF THE COURT DOESN'T KNOW WHAT IS GOING ON.

CORRECT. IN MOORMAN VERSUS TEREZIO, WHICH IS A SECOND DCA CASE, THIS SCENARIO AROSE, WHERE THE PUBLIC DEFENDER WAS UNABLE TO REVEAL, BECAUSE IT WAS BASED ON THE ATTORNEY-CLIENT PRIVILEGE, AND THE DISTRICT COURT OF APPEALS THAT SAID FURTHERMORE THE MATTERS WHICH CAUSED THE POSSIBLE CONFLICT WOULD, ACCORDING TO THE ALLEGATIONS OF THE PUBLIC DEFENDER, VIOLATE THE ATTORNEY-CLIENT PRIVILEGE. IN SUCH CIRCUMSTANCES, THE REPRESENTATIONS OF THE PUBLIC DEFENDER MUST BE ACCEPTED. HAT IS EXACTLY WHERE WE ARE, AND THERE CERTAINLY HASN'T BEEN ANY ABUSE OF PROCESS IN THE CCR'S HISTORY OR IN MR. WYATT'S CASE, SO I DON'T THINK THAT THERE IS ANY SORT OF RED FLAG FOR THE CIRCUIT COURT JUDGE TO NOT PRESUME THAT WHAT WE ARE SAYING IS ACCURATE INFORMATION AND THAT WE ARE BEING CANDID WITH THE COURT.

WHAT ABOUT THE PRACTICAL ISSUE OF THAT? HOW WOULD THE COURT KNOW, IF IT COULD APPOINT ANOTHER CCR OFFICE WITHOUT KNOWING IF THE ADVERSE REPRESENTATION IS WITHIN THE CLIENTS IN YOUR OFFICE OR OTHER OFFICES?

I THINK THE WAY TO SOLVE THAT PERHAPS, WOULD BE BEFORE HOLDING A HEARING TO APPOINT COUNSEL, MR. WYATT'S CASE IS A SOUTHERN REGION CASE. IT IS IN THE NORTHERN REGION, BUT IT IS A SOUTHERN REGION CASE. THE CLIENT COULD BE SPOKEN TO, TO DETERMINE WHETHER IT WOULD AFFECT SOMEONE IN THEIR OFFICE IN THE SOUTHERN REGION BEFORE NAMING AN ATTORNEY. IN THE REGISTRY COUNSEL, THEY ARE LIMITED TO FIVE CLIENTS, SO I THINK THAT AT SOME POINT, IF THIS WAS SOMETHING THAT WAS THAT WIDESPREAD, I MEAN, IT WOULD STOP. THERE WOULD BE SOMEONE WHO DIDN'T HAVE A PROBLEM, AND CERTAINLY, YOU KNOW, AS MUCH AS WE COULD REVEAL TO THE COURT, YOU KNOW, WE WOULD CERTAINLY ASSIST IN REPRESENTATION ISSUES AND IN TRANSFERRING THE CASE AS QUICKLY AS WE COULD, WHICH IS WHAT WE TRIED TO DO IN MARCH OF 2000, AT THE HEARING, AND --

BUT YOU ARE SAYING IS, IF YOU HAD BEEN GRANTED LEAVE, THIS CASE COULD HAVE BEEN ON ITS WAY, BUT WE ARE HERE.

EXACTLY SO, JUSTICE.

WHY WOULDN'T YOU BE SATISFIED WITH THE SAME RULE THAT GOVERNS THE PUBLIC DEFENDERS, THAT YOU WOULD HAVE TO GIVE A REASON, UNTIL IT REACHES A POINT THAT IT DIVULGES A CONFIDENTIAL, WHATEVER THAT LANGUAGE IS? WOULD YOU BE SATISFIED WITH THAT?

FOR ALL PRACTICAL PURPOSES, THAT IS WHAT WE DO. THAT IS HOW WE HAVE BEEN PRESENTING OUR CONFLICTS TO THE COURT. THE APPENDIX CLEARLY DEMONSTRATES THAT, WHEN WE CAN REVEAL WHAT THE CONFLICT IS, WE DO REVEAL WHAT THE CONFLICT IS. SO FOR ALL PRACTICAL PURPOSES, THAT IS HOWELL HOW WE ARE BEHAVING, THAT THE PUBLIC DEFENDER STATUTE IS, YOU KNOW, SORT OF SIMILAR TO US. WHEN WE CAN TELL THE COURT, WE DO TELL THE COURT.

YOU WOUL BE SATISFIED WITH THE SAME RULES THAT GOVERNS THE PUBLIC DEFENDER?

WELL, SURE, AND IN THIS CASE, THAT SAME RULE WHAT STILL PROHIBIT US FROM, WOULD STILL PREVENT THE CIRCUIT COURT FROM INQUIRING INTO THE CONFLICT, BECAUSE EVEN IN THAT STATUTE, IT STILL LIMITS THE COURT'S ABILITY TO REQUIRE COUNSEL TO REVEAL ATTORNEY-CLIENT PRIVILEGE.

BUT THAT PUTS AN ADDITIONAL BURDEN ON THE PUBLIC DEFENDER TO COME FORWARD AND IT GIVES SOME DEFINITION TO THEIR CONFLICT. YOU JUST CAN'T MAKE A BALD STATEMENT.

OKAY. I AM SORRY. CAN I ANSWER THAT QUESTION, YOUR HONOR?

. MR. CHIEF JUSTICE

YOU MAY.

I THINK UNDER THE STATUTE THAT IS HOW WE ARE PRACTICING. WE ARE PRACTICING IN THAT WAY, WHEN WE CAN REVEAL WHAT THE CONFLICT IS TO THE COURT, WE DO. JUST BRIEFLY, THE CONTINUED REPRESENTATION OF MR. WYATT WOULD BE -- MR. CHIEF JUSTICE

I THINK YOUR TIME IS UP NOW.

OKAY, YOUR HONOR. I WOULD RESPECTFULLY REQUEST THAT THIS COURT WOULD REMAND THIS CASE TO ALLOW US TO WITHDRAW AND TO APPOINT CONFLICT-FREE COUNSEL FOR MR. WYATT. MR. CHIEF JUSTICE

THANK YOU VERY MUCH, COUNSEL. APPRECIATE THE COUNSELS' ASSISTANCE IN THIS CASE.