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State of Florida v. Dean Kilgore

SC06-1763

>>> PLEASE RISE.
>> GOOD MORNING.
>> GOOD MORNING.
GOOD MORNING.
>> LADIES AND GENTLEMEN, THE
FLOIDA SUPREME COURT.
PLEASE BE SEATED.
.
>> THE NEXT CASE ON OUR
CALENDAR THIS MORNING IS STATE
VERSUS KILGORE.
MISTAKE BLANCO.
>> A CHANGE IN TABLES HERE.
>> IT IS, YOUR HONOR, A
STRANGE LAND OVER THERE.
-- MAY IT PLEASE THIS
HONORABLE COURT MY NAME IS
KATHRYN BLANCO WITH THE
ATTORNEY !!$$!!!!!!!!!!!!!!!!
ATTORNEY GENERAL'SOFFS, I'M
REPRESENTING THE STATE OF
FLORIDA IN THESE PROCEEDINGS,
IT IS AN IMPORTANT ONE THING
PERFECTLY CLEAR WE ARE HERE
THIS MORNING ON DEAN KILGORE
1978 NONDEATH-PENALTY CASE WE
ARE NOT HERE ON MR. KILGORE$$'S
1989 PRISON MURDER FOR WHICH
THE DEATH PENALTY WAS IMPOSED.
THIS CASE ARISES FROM THE 1978
NONCAPITAL PROCEEDING.
>> SO I UNDERSTAND, YOUR ISSUE
IS ONE OF REALLY $$STATE'S
STATUTORY CONSTRUCTION WHICH
IS WHETHER IT WAS A JUDGE
GRIFFIN DID A BIG AGGRAVATORS
SMALL AGGRAVATE$$!!OR, THE
INTERPRETATION OF THE STATUTE
IS THAT P$$CR CANNOT REPRESENT
DEATH PENALTY DEFENDANT, ON A
POST KWIEKZ -- CONVICTION
MATTER IN ANOTHER CASE EVEN IF
ONE THAT THE DEATH PENALTY
RESTED ON.
>> THIS CASE THE PARTICULAR
FACTS OF THIS CASE ARE NOT AS
IMPORTANT OVER THESALL STATUTE
AND THE APPEAR REPLY KAUGS.
>> THAT IS -- ABSOLUTELY
TRUE --
>> DOESN'T MATTER, WHETHER IT
IS A IT IS A SLAM-DUNK, OR IT
IS A LONG SHOT, IF THE STATUTE
DOESN'T ALLOW IT, IT DOESN'T
ALLOW IT.
>> EXACTLY, ANDS.
>> IS THAT YOUR POSITION THAT
UNDER NO CIRCUMSTANCES COULD
CCRC BE APPOINTED, OR COULD
CCRC PURSUE EVEN IF IT IS LIKE
THE REALLY GOOD FACTS, TO SET
ASIDE THIS CONVICTION, STATUTE
SAYS NO YOU CAN'T DO IT.
>> AS JUDGE GRIFFIN SAID IN --
NO, MEANS NO.
TWO OF THE MEMBERS IT WAS
ACTUALLY, THE SECOND DISTRICT
PANEL COMPRISE FIND THREE
MEMBERS OF THE FIFTH DISTRICT
COURT OF APPEAL JUDGE GRIFFIN
OFFERED DISSENT THE COURT WELL
AWARE OF THE OPINION IN THIS
CASE AND JUDGE GRIFRP'S HE
SAID IT THE STATUTE MEANS WHAT
IT WILL SAYS NO MEANS NO.
>> JUST LET ME ASK CAN YOU IN
THE PRACTICAL EFFECT, LET'S
JUST ASSUME THAT CCRC AGAIN,
DISCOVERS IN THEIR
INVESTIGATION, THAT THERE IS A
REAL PROBLEM WITH APPEARED
UNDERLYING PRIOR VIOLENT
FELONY!!$$!!!!!!!!!!
FELONY.
THEY DO THEY ARE THEY EVEN
PROHIBITED FROM I MEAN THAT IS
INVESTIGATION, SO THEY
OBVIOUSLY HAVE TO CHECK INTO
IT BECAUSE IT IS THEY FIND
THAT OUT.
WE ALLOW UNDER THE YOU KNOW
THE GRAND PROGENY FOR A
COUNSEL TO BE APPOINTED, WOULD
YOUR POSITION BE THEN IF THE
JUDGE ON POSTCONVICTION OF THE
OTHER CASE, FOUND THAT THERE
WAS YOU KNOW, IT MET CRITERIA
THAT THERE IS WE DIDN'T WANT
THIS DEFENDANT PROSECUTING, HE
NEEDS AN ATTORNEY, IT
CCR DON'TO COULDN'T BE
APPOINTED THAT YOU WOULD HAVE
TO GO OUT TO A PRIVATE
ATTORNEY, AND THE PRIVATE
ATTORNEY, WOULD HAVE TO TAKE
OVER THAT POSTCONVICTION,
PROCEEDING!!$$!!!!!!!!!!!!!!!!!!
PROCEEDING?
>> JUSTICE PARIENTE IT US THE $$
STATE'S POSITION INDEED CCR IS
NOT AUTHORIZED TO REPRESENT
CAPITAL DEFENDANTS IN
NONCAPITAL CASES --
>> WOULD HAVE TO GO AHEAD AND
APPOINT ANOTHER ATTORNEY --
>> COULD BE ABOUT PUBLIC
DEFENDER YOUR HONOR.
>> RNT AREN'T THEY PRO HIBEDIT!!$$!!!!!!!!!!!!
HIBEDITED.
>> ACTUALLY, YOU HAVE, A
DECISION, I BELIEVE, IN RUSSO
A DISCUSSION OF THAT, AND A
CASE, THAT WE CITED IN OUR
REPLY BRIEF, THAT RECENTLY
CAME OUT OF THIRD DISTRICT
COURT OF APPEAL BY THE NAME OF
MANN!!$$!!!!!!
MANN.
NOW IN IN ANM THE THIRD KT
COURT HELD THE PUBLIC DEFENDER
IS NOT AUTHORIZED TO
UNILATERALLY APPOINT
THEMSELVES IN NONCAPITAL POST
CONVICT SHUN CASES ACTUALLY
WHAT CCR DID IN THIS CASE
UNILATERALLY DECIDED THEY WERE
GOING TO INITIATE, NONCAPITAL
POST CONVICTION PROCEEDINGS IN
A NONCAPITAL CASE, IN MANN A
SIMILAR SITUATION HAPPENED
WITH RESPECT TO THE PUBLIC
DEFENDER!!$$!!!!!!!!!!!!!!
DEFENDER'S OFFICE, NOW, MANN
WAS DECIDE TO FEW MONTHS AGO
BY THIRD DEBT KRAERL SAYING
THE -- COURT APPEAL SAYING THE
PUBLIC DEFENDER MAY NOT
REPRESENT DEFENDANTS IN
NONCAPITAL POST CONVICTSION
CASES WITHOUT BEING APPOINTED
TO DO SO.
NOW, AS THIS COURT MAY OR MAY
NOT KNOW, BECAUSE I DON'T KNOW
WHERE IT IS IN THE BRIEFING
SCHEDULE BUT I BELIEVE, THAT
THE PUBLIC DEFENDER$$'S OFFICE
IN MANN FILED A PERHAPS A
NOTICE TO INVOKE DISCRETIONARY
JURISDICTION I BELIEVE THE
JURISDICTIONAL BRIEFS HAVE
BEEN FILED IN THAT CASE I DID
DO NOT WROEFSH THERE HAS BEEN
DISPOSITION IN MANN THIS OF AS
OF THIS CASE.
>> STRIKES ME BEFORE REVISION
SEVEN IT REALLY MATTERED THE
STATE AT LEAST WAS IF YOU HAD
THE PRIVATE ATTORNEY, MIGHT
HAVE BEEN THE -- RESPONSE!!$$!!!!!!!!!!!!!!
RESPONSIBILITY NOW UNDER
REVISION SEVEN, IF IT IS ALL
GOING TO THE OUT OF THE OR ALL
COMING OUT OF THE STATE
COFFER, WHICH POT IT COMES OUT
OF.
>> WELL, YOU KNOW, YOUR HONOR
THE LEGISLATURE HAS THE
AUTHORITY CERTAINLY AND DID,
CREATE THE OFFICE OF -- CCR,
BACK IN 85 WHEN CCR FIRST CAME
INTO BEING THERE WERE
AMENDMENTS TO THAT CHAPTER 27,
WITH RESPECT TO HANDLING
CAPITAL POSTCONVICTION
LITIGATION!!$$!!!!!!!!!!!!!!!!!!
LITIGATION.
TO STEP INTO THE BREECH
ESSENTIALLY!!$$!!!!!!!!!!!!!!!!!!!!
ESSENTIALLY, 1985, ENACTMENT,
IN 1997, THEN REGISTERED
COUNSEL WAS ADDED IN 1997 OR
1998, TO ALLEVIATE THE
OVERREADS BURDENED OR THE
STRAPPED RESOURCES OF CCR, AND
THIS COURT AND -- REPEATEDLY
HAS SAID THAT REGISTRY COUNSEL
IN CCR STAND IN SAME POSITION
THEY ARE RESPONSIBILITY IS TO
IN FACT CHALLENGE
POSTCONVICTION DEATH PENALTY
CASES IN THE DEATH DOOETH --
>> LET ME MAKE SURE I GOT THE
ANSWER, IF THEY ARE THEY
PRECLUDED FROM LOOKING INTO
THE MERITS, AS TO WHETHER ONE
OF THE AGGRAVATORS, WHICH
WOULD BE A PRIOR VIOLENT
FELONY!!$$!!!!!!!!!!
FELONY, IS SUSCEPTIBLE TO
ATTACK IS THAT BEYOND THEIR
STATUTORY ABILITY?
WHAT IS YOUR ANSWER TO THAT?
>> YOUR HONOR.
>> -- FILING THE CASE --
>> RIGHT THE -- THEY CANNOT
INITIATE THE POSTCONVICTION
LEGISLATION WHAT THEY CAN DO
-- LITIGATION WHAT THEY CAN DO
I WOULD ASSUME EVERY CASE THEY
LOOK TO SEE IF THERE IS A
VALID POST CONVICT SHUNL
CHALLENGE, THAT IS AVAILABLE
TO THEM, IN THE DEATH-PENALTY
CASE!!$$!!!!!!
CASE, WELL, THE COURT HAS
NEVER HELD THAT EVEN TRIAL
COUNSEL IS INEFFECTIVE FOR
FAILING TO CHALLENGE A
20-YEAR-OLD PRIOR VIOLENT
FELONY CONVICTION, WHAT CCR IS
ATTEMPT DOING YOUR HONOR WITH
ALL DUE RESPECT IS BOOTSTRAP
THEIR CAPITAL REPRESENTATION
IN THE PRISON MURDER CASE WITH
A 25 -- ALMOST 30-YEAR-OLD
NONCAPITAL CONVICTION,
INITIATE OWING.
>> STATUTORY.
>> THE ZBHEESHGS OKAY.
>> SHE ASKED, CAN THEY NOT
LOOK INTO IT I THINK THAT WAS
HER QUESTION NOT --
>> FRANKLY, YOUR HONOR WHAT
CCR LOOKS INTO IS SOMETHING
THAT WE WON'T BE PRIVY TO WE
DON'T KNOW THE SCOPE OF THEIR
INVESTIGATION.
>> WELL THERE IS.
>> HE WE ONLY KNOW THAT THE
LEGISLATURE HAS SAID THAT --
>> THERE IS NO ANSWER TO HER
IS THAT WHAT YOU ARE SAYING.
>> PROBABLY NOT BECAUSE I
DON'T I THINK THE STATUTE --
THE STATUTE PRECLUDES THEM
FROM INITIATING POSTCONVICTION
LITIGATION!!$$!!!!!!!!!!!!!!!!!!
LITIGATION.
>> NOT LONG AGO THERE WAS A
MAJOR ISSUE OUT THERE WITH
REFERENCE TO CONVICTIONS THAT
HAD BEEN OBTAINED AND SECURED
WITHOUT THE ASSISTANCE OF
COUNSEL.
AND UP UNTIL JUST REALLY A FEW
YEARS AGO, YOU KEPT SAYING
THOSE POP UP, THAT IS THAT
SOMEBODY DISCOVERED, OH, MY
COMOSH!!$$!!!!!!!!!!
COMOSH -- MY GOSH, THAT PRIOR
CON DESCRIBINGION, MAY NOT
CONVICTION MAY NOT BE VALID IF
YOU EXAMINE IT IT WAS A
SERIOUS FELONY, AND YOU LOOK,
AND YOU SEE THAT THERE WERE NO
COUNSEL, OR WHAT I'M TRYING TO
SAY IS YOU KNOW THOSE CAME UP,
IN ALL KINDS OF FORMS, SO YOU
ARE NOT SUGGESTING ARE YOU IF
COUNSEL SAW ONE OF THOSE, USED
AS AN AGGRAVATE$$!!OR, IN A
DEATH-PENALTY CASE THEY
WOULDN'T HAVE SOME OBLIGATION
TO SAY WELL WAIT A MINUTE, YOU
KNOW, WE APPARENTLY ARE THE
FIRST ONES TO DISCOVER THAT,
AND YOU KNOW, WE NEED TO CALL
IT WILL TO $$SOMEBODY'S
ATTENTION.
EVEN IF IT IS JUST THE
DEFENDANT.
AND YOU KNOW, BUT SO I'M
HAVING DIFFICULTY WITH IN
ALSO, DIFFICULT, I THINK, WE
HAVE GOT TO BE CAREFUL ABOUT
JUMPING INTO THE MERITS OF THE
THING, FROM WHAT I PERCEIVE TO
BE A FAIRLY NARROW ISSUE THE
STATE HAS PRESENTED, THAT IS
OF TRYING TO KEEP THESE
REGIONAL OFFICES, WITHIN THE
BOUNDS THAT HAVE BEEN
DELEGATED TO THEM.
THAT IS THE WAY I UNDERSTOOD
THE $$STATE'S PRESENTATION TO BE
MADE.
THAT IT IS NOT A GRAM ISSUE,
THAT OTHER COUNSEL IF TRIAL
COURTS FOUND THAT IT WAS
NECESSARY, WHATEVER, THAT
OTHER COUNSEL COULD BE
APPOINTED.
BUT THAT IN TERMS OF THE
RESPONSIBILITIES AND DUTIES OF
CCR, THAT IT SHOULD NOW AM I
MISREADING WHAT THE STATE
IS --
>> NO YOUR HONOR IF I MAY
ADDRESS I BELIEVE THAT WAS
PERHAPS A COMPOUND QUESTION.
>> TO ME.
WITH RESPECT TO THE GIDIAN
ISSUES, ABOUT -- COURT WELL
AWARE CAME OUT OF THE UNITED
STATES SUPREME COURT LAST WEEK
BASICALLY SAID EXCEPT FOR A
GIDEON CLAIM THERE WILL NOT BE
REPRESENT ACTIVE THEY HAVE NOT
FOUND RETROACTIVE APPLICATION,
UNDER A NEW LAW, IN
POSTCONVICTION!!$$!!!!!!!!!!!!!!!!!!!!!!!!!!
POSTCONVICTION.
SO GIDEON, WITH RESPECT TO
THOSE TYPE OF GIDEON CLAIMS
AND THERE IS A DISCOVER OF A
GIDEON CLAIM YES YOU MAKE THE
DEFENDANT AWARE OF IT.
YOU KNOW RULE 385049 CAPITAL
DEFENDANTS DESIGNED FOR
NONCAPITAL DEFENDANTS ALSO
ANTICIPATED THAT THE MAJORITY
OF THE CASES WOULD BE FILED
BROI SAY LITIGANTS A FORUM I
WAS ADOPTED SO THEY COULD FILL
IN BLANKS SO IT WAS --
ESSENTIALLY!!$$!!!!!!!!!!!!!!!!!!!!
ESSENTIALLY, A MADE AVAILABLE
FOR THEM, THAT THEY COULD DO
IT WITH RELATIVE EASE IN FACT
ALTHOUGH!!$$!!!!!!!!!!!!!!
ALTHOUGH.
>> -- IN GRAM SAID -- SO IF
ABSOLUTELY!!$$!!!!!!!!!!!!!!!!!!
ABSOLUTELY --
>> JUDGE THAT WHATEVER, KIND
OF THING, BUT, SO BUT LET ME
RETURN YOU KNOW AWAY FROM THE
MERITS AGAIN, THOUGH, IS THE
ISSUE THE STATE IS PRESENTED,
REALLY VERY NARROW ISSUE, AND
THAT IS WHORNLT UNDER-- WHEN
OR NOT UNDER THE SCHEME
LEGISLATURE SET UP THAT THE
LEGISLATURE WOULD CONTEMPLATE
THAT CCR OFFICE COULD ALSO
ASSUMING THAT THE VALIDITY OF
IT THAT MR. MIGHT BE COULD GO
AND ALSO REPRESENT THE
DEFENDANT, IN A PRIOR IN A
POSTCONVICTION CASE, IN A
PRIOR -- IS THAT THE NARROW
ISSUE THE STATE IS PRESENTING
TO US?
OR WHETHER CCR HAS BEEN STRICT!!$$!!!!!!!!!!
STRICTLY LIMITED TO APPEARANCE!!$$!!!!!!!!!!!!!!!!!!
APPEARANCES IN CAPTAIN CASES
SO THAT THE ISSUE I BELIEVE
YOUR HONOR THE LEGISLATIVE
AUTHORIZATION TO CCR WITHIN
THE LEGISLATUREDITION KREGS
ONLY TO REPRESENT IN CAPTAIN
CASES
>> A NARROW ISSUE.
>> YES, IT IS YOUR HONOR, WITH
RESPECT TO THE FACT THAT AN
ISSUE MIGHT ARRIVE IN A PRIOR
NONCAPITAL CONVICTION, THAT
PLACES THIS DEFENDANT AND HIS
NONCAPITAL CASE IN THE SAME
POSITION, OF EVERY OTHER
DEFENDANT IN A NONCAPITAL
CASE, CONVICTED OF SERIOUS
CHARGES!!$$!!!!!!!!!!!!
CHARGES, SO --
>> WHAT WE REALLY HAVE HERE
THEN IF CCRC, OR REGISTRY
COUNSEL COMES ACROSS SOME
CONVICTION THAT IS USED AT THE
PRIOR VIOLENT FELONY, THEY CAN
IN FACT BRING THAT TO THE
ATTENTION OF THE DEFENDANT,
THE COURT, AND THE COURT CAN
USE THE GRAM STANDARD TO
DECIDE WHEN OR NOT, THE
DEFENDANT NEEDS TO HAVE AN
ATTORNEY APPOINTED, FOR
POSTCONVICTION IN THAT
PARTICULAR CASE IS THAT WHERE
THE STATE IS IN THIS.
>> YOUR HONOR THE STATE IS
THAT THE CCR CAN NEVER
INITIATE, POSTCONVICTION
LITIGATION!!$$!!!!!!!!!!!!!!!!!!
LITIGATION, ON BEHALF OF A
CAPITAL DEFENDANT, IN A
NONCAPITAL CASE.
>> I I MEAN.
>> THEY CAN CERTAINLY ALERT
THEIR CLIENT, OR AS PART OF
THEIR DEATH PENALTY
REPRESENTATION!!$$!!!!!!!!!!!!!!!!!!!!!!!!!!
REPRESENTATION, MAKE THE COURT
AWARE, YOU KNOW, CERTAINLY
THAT THERE IS AN ISSUE, OUT
THERE!!$$!!!!!!!!
THERE.
THEY MAY NOT BE THE ONES TO
REPRESENT THEM.
THE STATUTE DOES NOT HAVE TO
BE CHANGED.
IT IS CCR DOES -- DOES NOT
HAVE AUTHORITY TO EXPAND THE
LEGISLATIVE INTENT.
>> I APOLOGIZE YOUR HONOR.
>> NOT YOUR FAULT BELIEVE ME.
>> THIS IS ESSENTIALLY MATTER
OF STATUARY CONSTRUCTION
RIGHT.
>> IT IS YOUR HONOR.
>> WHEN JUDGE GIVEN HE GIVEN
SAID NO MEANS KNOW THE ONLY
PLACE I SEE NO MEANS NO IS IN
REGARDS TO REGISTRY COUNSEL
WHERE THERE ARE SPECIFICALLY,
PROHIBITED FROM REPRESENTING
DEFENDANTS IN NONCAPITAL CASES!!$$!!!!!!!!
CASES.
I CONTINUE -- I DON'T SEE THAT
IN THE CCR STATUTE, SO HOW DO
WE GET TO NO MEANS KNOW IN --
NO IN THE CCR STATUE.
>> YOU GET TO NO MEANS NO I
DON'T YOU ARE HONOR WHEN YOU
LOOK AT THE HISTORY OF
STATUTE, THE 85 CREATION OF
CCR THE 19 EXCUSE ME 97-98
ADDITION OF REGISTRY, THIS IS
AN EXPLANATION TO MAKE SURE
PRIVATE COUNSEL PRIVATE BAR
APPOINTED AS REGISTRY, KNEW
WHAT CCR ALREADY KNEW, AND
THAT IS THAT THEY WERE NOT
AUTHORIZED TO GO IN, TO
NONCAPITAL CASES.
THAT THEY WERE SPECIFICALLY
LIMITED!!$$!!!!!!!!!!!!
LIMITED, SO IF WELL.
>> TELL ME WHERE IN STATUTE WE
FIND THAT.
BECAUSE -- IT IS A MATTER OF
STATUTORY CONSTRUCTION WE HAVE
TO FIND WHERE IN THE STATUTE,
IS IT THAT THE STATUTE,
LIMITS, REPRESENTATION, TO
CERTAIN AREAS?
>> YOU FIND IT IN FOUR SECTION!!$$!!!!!!!!!!!!
SECTIONS OF THE STATUTE PLUS
THIS $$COURT'S INTERPRETATION
WHERE YOU ARE SAYING THAT IT
CLASS ERTHAT THE LEGISLATURE
INTENDED THAT REGISTRY AND CCR
COUNSEL STAND IN THE SAME
POSITION.
SO YOU FIND IT, IN THE STATUTE
YOUR HONOR, YOU WILL FIND IT,
IN 277001, WHERE IT THERE IS A
SPECIFIC EXPLANATION OF
LEGISLATIVE INTENT AND
FINDINGS OF COURSE AS WELL,
KNOWS YOU DON'T NEED TO LOOK
FOR THE INTENT OF THE THE
LEGISLATURE IF IT IS SET OUT
IN THEIR IN THE PARAGRAPH SUCH
AS LEGISLATURE HAS DONE HERE,
THAT EXPLAINING THEIR
LEGISLATE INTENT THAT -- CCRC
MAY CHALLENGE ANY FLORIDA
CAPITAL CONVICTION AND
SENTENCED, THE NONCAPITAL 1978
CASE IS NOT THE CAPITAL
CONVICTION OF THE SENTENCE YOU
ALSO FIND IN 277002 SUBSECTION
4 WITH THE DISCUSSION ON
LIMITATION ON CAPITAL
REPRESENTATION!!$$!!!!!!!!!!!!!!!!!!!!!!!!!!
REPRESENTATION.
WHERE IT SAYS THAT -- NO
ATTORNEY MAY BE APPOINTED TO
REPRESENT ANY DEFENDANT
COLLATERAL LEGAL PROCEEDINGS
EXCEPT AS EXPRESSLY AUTHORIZED
THIS IS AN EXPRESS
AUTHORIZATION!!$$!!!!!!!!!!!!!!!!!!!!!!!!
AUTHORIZATION, OF POWER.
SO IF IT IS NOT SO IT IN
THERE, CCR IS NOT PERMITTED TO
DO THIS.
YOU ALSO FIND IT YOUR HONOR IN
27702, THE DUTIES OF CCR,
SHALL FILE ONLY THOSE POST
CONVICT SHOURN COLLATERAL
ACTIONS AUTHORIZED BY STATUTE,
AGAIN A DIRECT AUTHORIZATION,
FROM THE LEGISLATURE, 27706,
PRO HIT HE PROHIBITING PRIVATE
PRACTICE OF LAW ESSENTIALLY
WOULD BE AS IF A PRIVATE
ATTORNEY WOULD COME IN AND LIT
GAT THE NONCAPITAL CONVICTION,
AND ALSO, IN 27711.
JUSTICE CANTERO JUST ASKED
ABOUT, NOW THE TITLE OF THAT
SECTION IS TERMS AND
CONDITIONS OF APPOINTMENT OF
ATTORNEYS IN POSTCONVICTION
COLLATERAL PROCEEDINGS THIS
COURT AGAIN IN -- MOSS
INTERPRETED THAT REGISTERED
COUNSEL AND CCR STAND IN THE
SAME POSITION, IF YOU WERE TO
ACCEPT, CCR'S ARGUMENT THAT
NO, REGISTRY COUNSEL AND CCR
COUNSEL ARE NOT IN THE SAME
POSITION, THEN WITH ALL DUE
REPUBLICAN YOUR HONOR, THAT --
RESPECT YOUR HONOR CREATES AN
EQUAL PROTECTION PROBLEM AND
OF COURSE, UNDER 27711 THERE
ARE TWO SUBSECTIONS, SECTION
1C, REFERS TO COLLATERAL
LITIGATION FILED IN THE TRIAL
COURT, THAT IMPOSED THE
CAPITAL SENTENCE, AND 2711,
11, MAY NOT REPRESENT IN A
PROCEEDING CHALLENGING A
CONVICTION!!$$!!!!!!!!!!!!!!!!!!
CONVICTION.
>> HOW RELEVANT IS AN ANALYSIS
OF THE FEDERAL HABEAS
REPRESENTATION OF CCR FOR
CAPITAL DEFENDANT?
IN OTHER WORDS, STARTING WITH
THE FIRST CREATION OF THE
SINGLE STATEWIDE OFFICE, IN
LAWYERS, FROM CCR,
REPRESENTING SAME DEFENDANTS
IN FEDERAL HABEAS PROCEEDINGS?
.
>> HOW RELEVANT IS AN --
>> IT IS QUITE RELEVANT
BECAUSE IT IS AND LEGISLATURE
WAS ENVISIONED THAT WHEN IT
PROVIDES FOR THE FUNDS FOR
EXAMPLE WHEN CCR REPRESENTS A
CAPITAL DEFENDANT IN HIS
FEDERAL HABEAS CORPUS HABEAS
CORPUS PROCEEDINGS TO
CHALLENGE THAT JUDGMENT AND
SENTENCE.
THEY PROVIDE FOR REIMBURSEMENT
OF PAYMENT FROM THE DEPARTMENT
OF JUSTICE.
THE CRIMINAL JUSTICE ACT
RATHER, AND SO IN FEDERAL
HABEAS CORPUS HABEAS CORPUS
PROCEEDINGS THIS COURT ALREADY
ADDRESSED OKAY IN FEDERAL
HABEAS CORPUS THAT IS ENVISION!!$$!!!!!!!!!!!!!!
ENVISIONED AS A DIRECT CHAL.
>> HOW EX-SPLITS, HOW EX!!$$!!
EX-EXPLICIT IS IN THE STATUE
SCHEME FOR CCR THAT COUNCIL
MAY REPRESENT THE DEFENDANT,
IN FEDERAL HABEAS CORPUS, OR
YOU KNOW, FOR -- PROCEEDINGS
IN THE U.S. SUPREME COURT?
>> WELL, I BELIEVE THAT IT HAS
BEEN SO IT, ACTUALLY YOUR
HONOR.
>> WITH RESPECT TO THE STATUE
I WOULD JUST HAVE 20 -- TO
PULL THAT THE 702 PORTION OF
THE STATUTE.
BUT IT IS IT IS AGAIN, IT IS A
DIRECT CHALLENGE, IT IS
CONTEMPLATED AS A DIRECT CHAL.
TO THE JUDGMENT -- AND WHAT
YOU INTERPRET IT THE
LIMITATIONS ON CCR OR THE LACK
OF AUTHORIZATION FOR CCR TO DO
FEDERAL CIVIL RIGHTS
LITIGATION!!$$!!!!!!!!!!!!!!!!!!
LITIGATION, OR 1983 ACTION,
WHICH AGAIN WAS AFFIRMED BY
THIS COURT OR ADDRESSED BY
THIS COURT RECENTLY IN DIAZ,
THIS COURT IN KENNY ALSO SAID
THAT -- CCR HAS NO AUTHORITY
TO FOR CAPITAL TO REPRESENT
CAPITAL DEFENDANTS IN FEDERAL
CIVIL RIGHTS ACTIONS AT ISSUE,
AND HAS NO AUTHORITY, TO
REPRESENT CAPITAL DEFENDANTS
IN ANY CIVIL ACTION NOT DIRECT!!$$!!!!!!!!!!
DIRECTLY CHALLENGING THE
LEGALITY OF THE JUDGMENT AND
SENTENCE OF SUCH -- SUCH
DEFENDANT AND THAT IS -- PAR
GRAL IN -- VERSUSKIN KENNY.
>> WELLING INTO REBUTTAL YOU
HAVE GOT ABOUT A MINUTE.
>> THANK YOU YOUR HONOR IF I
MAY RESERVE THE REMAINDER OF
MY TIME, THANK YOU.
>> YOU ARE A WELL SEASONED
VETERAN NOW.
>> THANK YOU.
>> MAY IT PLEASE THE COURT.
THERE IS NOTHING IN THE CCR
STATUTE IN CHAPTER 27 THAT
3R50E67B9S CCR --
PREREPRESENTS CCR FROM
REPRESENTING.
>> ACTUALLY, DOESN'T THE
STATUTE HAVE TO MANDATE, THAT
CCR HAS THE AUTHORITY TO DO
IT?
>> YES.
>> NOT IT IS NOT A MATTER OF
THEIR BEING A PROHIBITION IN
THE STATUTE IT IS A MATTER
THAT THE STATUTE ASKED TO
EXPRESSLY SAY IT IN CCRC, AS
THAT POWER.
>> YES THE LEGISLATURE,
CREATED CCR TO PERFORM
SPECIFIC DUTIES, THE DUTIES
SEEK TO GO PERFORM ON BEHALF
OF OUR CLIENT MR. KILGORE, ARE
FULLY WITHIN THE STATUTES
REQUIREMENTS!!$$!!!!!!!!!!!!!!!!!!!!!!
REQUIREMENTS.
THE STATUE ALSO -- STATUTE
EXPLICITLY SAYS THERE
ERCERTAIN DUTIES WE CANNOT
PERFORM CIVIL LITIGATION
REPRESENTING PRO BONO.
>> MY CONCERN IS THAT I DON'T
READ IN THE STATUTE, ANY
SPECIFIC AUTHORITY THAT IS
GIVEN TO CCRC TO FILE AN
ACTION IN ANY ACTION EXCEPT
THE POST 3.851, AND I WOULD BE
CONCERNED ABOUT COURT HEARING
IT, BECAUSE OF THE
RAMIFICATION!!$$!!!!!!!!!!!!!!!!!!!!!!
RAMIFICATIONS.
IF WE DID THAT, THEN WOULD CCR
C BE ABLE TO GO INTO THE STATE
OF TEXAS AND FILE IN AN ACTION
IN TEXAS?
FOR -- TO GET AN UNDERLYING
CONVICTION OR STATE OF
WASHINGTON, OR -- JUST -- WE
HAVE HAD THOSE CASES COME UP
REMETO ONE IN KANSAS.
>> CORRECT STATE VERSUS
ARMSTRONG PRIOR CONVICTION IN
MASSACHUSETTS, THAT WAS SET
ASIDE, AND MR. ARMSTRONG GOT
RELIEF!!$$!!!!!!!!!!
RELIEF.
>> CCR GET THE RELIEF?
>> YES,99MR. ARMSTRONG?
>> YES.
>> YES, HE WAS REPRESENTED BY
CCR COUNSEL.
>> IN MASSACHUSETTS?
>> OH, NO, NO I'M SORRY.
-- THOSE CASES DO ARISE,
OBVIOUSLY NOT EVERYBODY IN
CCIS GOING TO BE ABLE TO
TRAVEL TO EVERY OTHER STATE
AND LITIGATE THERE
>> AGAIN, I THINK IT IS,
JUSTICE CANTERO RAISES
INTEREST POINT ABOUT CLEAR
PROHIBITION IN THE REGISTRY
THAT THE WAY I WAS READING THE
STATUTE, IT DOESN'T SEEM THAT
THERE IS99SPECIFIC AUTHORITY,
WITH MISS BLANCO TO HAVE AT
LEAST, AGREEING, I DON'T WANT
TO USE THE WORD CONCEDING,
THAT YOU ARE CERTAINLY NOT
PROHIBITED FROM LOOKING INTO
IT, ADVISING THE DEFENDANT,
PRESUMABLY!!$$!!!!!!!!!!!!!!!!!!
PRESUMABLY, ADVOCATING EVEN TO
THE TRIAL JUDGE, THAT THIS IS
THE CASE THAT IT REL NEEDS
APPOINTMENT OF COUNSEL, WHERE
IS IN TERMS OF FOR THE -- IF
THERE IS NO STATUTORY MANDATE,
MAYBE, IS THERE ANY OTHER
AND,99THERE IS NO
CONSTITUTIONAL MANDATE UNLESS
THE GRAM FACTORS ARE VIOLATED
BUT THAT DOESN'T MEAN THEY
HAVE TO BE -- CCRC IS THE ONE
THAT WOULD REPRESENT THAT
PERSON, HOW DO YOU RESPOND TO
THAT?
>> I THINK IN MOST
CIRCUMSTANCES, UNDER, GRAM,
AND YOU KNOW, TO THE POINT OF
PUBLIC DEFENDER, OR OTHER
ATTORNEY, WOULD ACTUALITY GO
AGAINST THE POLICY THAT GIVES
RISE TO THE PROHIBITIONS IN
THE STATUTE, NAMELY, EXHAUST!!$$!!!!!!!!!!!!
EXHAUSTING THE STATE TREASURY.
>> THAT IS BUT THAT IS JUSTICE
WELLS SAYS, I THINK AND I WILL
BE SURPRISED IF THE IF THE
STATUTE CREATING THIS WAS
REALLY THINKING OFS THIS
PARTICULAR DISCREET ISSUE IT
SEEMS LIKE THIS IS AN
LEGISLATIVE DECISION ONE WAY
OR ANOTHER IN MOST CASES THERE
WOULD BE REPRESENTATION OF A
DEFENDANT, BUT IF PUBLIC
DEFENDER!!$$!!!!!!!!!!!!!!
DEFENDER'S OFFICE, PRIVATE
COUNSEL, REIMBURSED, IT IS --
YOU KNOW THE POLICY REASON YOU
MAY WOULD NOT TO ARGUE THE
LEGISLATURE IS MORE EFFICIENT
FOR CCRC TO DO IT SOUNDS LIKE
IT PROBABLYING WOULD BE --!!$$!!
--99PROBABLY WOULD BE BUT WE
ARE DEALING WITH WHETHER THE
STATUTE AUTHORIZES IT THAT IS
WHERE IMHAVING A PROBLEM
SEEING JUST WELLS WAS SAYING
WHETHER AUTHORIZES IT OR ON
THE OTHER HAND DOES IT WHEN TO
BE THE WAY THAT CLEAR
PROHIBITION YOU ARE AUTHORIZED
TO DO IT WILL?
>> WELL, CLEARLY, THERE IS A
LEGISLATURE -- SET UP CCR, TO
FORM CERTAINLY DUTIES, AND HE
SERVICES TO THE CLIENT AND THE
PEOPLE STATE OF FLORIDA.
THERE ARE SPECIFIC PROHIBITION!!$$!!!!!!!!!!!!!!!!!!!!
PROHIBITIONS CERTAIN ACTIONS
CCR MAY NOT FOR INSTANCE
REPRESENT CLIENTS PRO BONO SO
FORTH.
IN A CASE LIKE MR. KILGORE'S,
WHERE, BOTH AGGRAVATORS.
>> WHAT IS THAT POLICY THAT
YOU CAN'T -- IN OTHER WORDS,
YOU COULDN'T TAKE OFF YOUR
CCRC!!$$!!!!!!
CCRC AND TELL THE JUDGE LISTEN
I'M GOING TO WORK AT NIGHT,
YOU ARE NOT GOING TO HAVE TO
PAY ANYTHING BUT I WILL TAKE
CARE BECAUSE THIS SUCH A
MERITORIOUS THING COULD REALLY
AFFECT HIS CONVICTION STATUTE
DOESN'T ALLOW YOU TO DO THAT?
>> RIGHT STATUTE IS VERY
EXPLICIT WITH REGARD TO PRO
BONO REPRESENTATION THAT ISSUE
HAS BEEN BEFORE IN THE COURT
BEFORE I CAN UNDERSTAND THE
POLICY -- REASONS BEHIND THAT.
>> LET ME ASK YOU ABOUT
PRACTICAL ASPECTS OF THIS
TRYING TO FIND IN THE LANGUAGE
IF THE OPINION BELOW, I THINK,
JUDGE SHARP REFERRED TO THE
SITUATIONS AS RARE.
AND IN MY EXPERIENCE, HERE, IT
SEEMS LIKE ABOUT, 75% OF
DEATH-PENALTY CASES INVOLVE A
PRIOR VIOLENT FELONY, I DON'T
THINK THAT WE CAN LIMIT, THE $$
COUNSEL'S ABILITY TO CONTEST
THOSE PRIOR VIOLENT FELONIES
TO TO ONLY PRIOR MURDERS.
IF IT IS FOR ONE IT IS FOR ALL
SO IT SEEMS TO ME WE ARE
OPENING UP REALLY CAN OF WORMZ
WHEN 75% OF THE APPEALS
INVOLVE PRIOR VIOLENT FELONY
NOW CCRC IS GOING TO SAY WE
ALMOST HAVE A DUTY FORGET THE
AUTHORIZATION WE NOW HAVE A
DUTY TO GO AND TRY TO CONTEST
THOSE PRIOR VIOLENT FELONIES
ESPECIALLY IF THERE IS ONLY
ONE PRIOR VIOLENT NEILL IF WE
CAN GET THAT KNOCKED OFF, THEN
OF COURSE WE CAN GET THE
OTHERS IF OF IT IS A PRIOR
VIENLT FELONY WHY NOT SOME OF
THE OTHER AGGRAVATORS, THEN,
NOW WE ARE REALLY GETTING INTO
DEEP WATERS.
>> WELL, I UNDERSTAND THAT
CONCERN, I CAN ONLY SAY THAT
CCR CANNOT RAISE A CLAIM, IF
IT IS NOT A COLOR ABLE FOR
VIABLE CLAIM.
>>,000 HOW COLORABLE IF ON THE
MURDER OCCURRED MANY YEARS
OOZE YOU ARE PROBABLY
PROCEDURALLY BARRED FROM IT
WILL SO IF THIS IS ISSUE
REGARDING BRADY VIOLATION
MR. KILGORE HAD NO REASON TO
KNOW ABOUT I DON'T WANT TO GET
INTO THE MERITS OF THE CASE
UNLESS THE COURT SPECIFICALLY
WANTS ME TO THERE IS NO RECORD
ON THAT YET.
THE BOTTOM LINE IS MR. KILGORE
CAN'T BE HELD RESPONSIBLE FOR
THE STATE WITHHOLDING
POTENTIAL BRADY INFORMATION
WHEN THAT DOES COME TO LIGHT
CCR DOES HAVE A DUTY TO
CHALLENGE THE AGGRAVATORS IF
IT IS BASED ON A
CONSTITUTIONALLY INFIRM PRIOR
CONVICTION!!$$!!!!!!!!!!!!!!!!!!
CONVICTION.
>> BUT IF YOU HAVE TO DO IT
BRINGING OTHER LITIGATION
THERE IS A -- AND STATUTE,
27.702 THERE IS A STATEMENT
THAT THAT IS ADAPT COLLATERAL
REASONABLE COUNSEL THE
ATTORNEYS APPOINTED FOR --
PURSUANT TO 27.710, THE
REGISTRY ATTORNEY SHALL FILE,
ONLY THOSE POSTCONVICTIONAL
COLLATERAL ACTIONS, AUTHORIZED
BY STATUTE.
SO TELL ME WHAT STATUTE
AUTHORIZES CCRC OR REGISTRY
COUNSEL TO FILE THAT ACTION.
>> I THINK THAT THE STATUTE
ITSELF, SPEAKS TO CHALLENGE
THE PRIOR CONVICTION, BECAUSE
IT IS PART AND PARCEL OF THE
DEATH SENTENCE.
WITHOUT THE PRIOR CONVICTION,
THE MAJOR -- FORGET THE MAJOR,
ONE OF THE AGGRAVATORS OR IN
MR. KILGORE'S CASE POSSIBLY
BOTH AGGRAVATORS WOULD BE
STRUCK, THE STATUTE
SPECIFICALLY SPEAKS TO --
>> IT SAYS AN ACTION
AUTHORIZED BY STATUTE.
>> SURE.
>> WHERE IN THIS STATUTE,
POINT TO ME IN THIS STATUTE
WHERE IT AUTHORIZES A
NONCAPITAL PROCEEDING.
>> YOUR HONOR IT IS SPECIFIC
TO NOT AUTHORIZING A
NONCAPITAL PROCEEDINGING.
HOWEVER!!$$!!!!!!!!!!!!
HOWEVER, BY THE STATE USING
THIS AGGRAVATE$$!!OR, TO JUSTIFY A
DEATH-PENALTY CASE, IT BECOMES
PART AND PARCEL OF THE
DEATH-PENALTY CASE.
>> TO REALLY ANSWER THE
QUESTION IT THE ANSWER IS THAT
THERE IS NOTHING IN THIS
STATUTE THAT AUTHORIZES CCRC
TO INITIATE ANY KIND OF ACTION
THAT IS A NONCAPITAL
PROCEEDING!!$$!!!!!!!!!!!!!!!!!!
PROCEEDING.
IS NOT THAT CORRECT?
>> THAT IS WHAT THE STATUTE
SAYS.
HOWEVER, IN A CASE SUCH AS
MR. KILGORE'S WHERE THAT
AGGRAVATE!!$$!!!!!!!!!!!!!!!!
AGGRAVATOR, WHERE THE PRIOR
EXCUSE ME WHERE THE NONCAPITAL
PROCEEDING IS CHALLENGING AN
AGGRAVATE$$!!!!OR THAT IS USED TO
JUSTIFY DEATH SENTENCE I DON'T
THINK YOU CAN DISTINGUISH
BETWEEN THE TWO.
>> DON'T YOU THINK THAT THIS
IS EXACTLY WHAT THE
LEGISLATURE WAS THINKING ABOUT
HERE?
THEY DON'T WANT CCRC, IN -- OR
REGISTRY COUNSEL, IN ALL OF
THESE CASES, AS JUSTICE
CANTERO SAID PROBABLY 75%
MAYBE EVEN MORE OF THEM, HAVE
-- PRIOR VIOLENT FELONY CCRC
IS TO EXPEND THE -- LIMITED
ROIRZ AVAILABLE TO THEM TO GO
OFF CHASING EVERY PRIOR
VIOLENT FELONY, THAT IS IN
THESE CAPITAL CASES, DON'T YOU
THIS I THAT THAT IS THE
PURPOSE OF THE LEGISLATURE
LIMITING THESE TO CAPITAL
PROCEEDINGS!!$$!!!!!!!!!!!!!!!!!!!!
PROCEEDINGS?
>> I DON'T KNOW THAT THAT IS
THE PURPOSE OF THAT.
OF THAT PROVISION.
THE PROHIBITIONS, OF CCR, ON
CCR COUNSEL REPRESENTING
CLIENTS!!$$!!!!!!!!!!!!
CLIENTS, IN CIVIL LITIGATION
PRO BONO, AND SO FORTH, ARE
VERY SPECIFIC.
THE LEGISLATURE HAD THE
OPPORTUNITY TO READDRESS THIS
ISSUE GOING BACK TO KENNY AND
JONES.
VERY BUTTERWORTH I'M SURE THE
LEGISLATURE IS AWARE THERE ARE
SEVERAL CCR CASES, WHERE CCR
IS REPRESENTING, THEIR CLIEPTS!!$$!!!!!!!!!!!!
CLIEPTS, CHALLENGING THE PRIOR
FELONY!!$$!!!!!!!!!!
FELONY -- AND THE LEGISLATURE
HAD PLENTY OF OPPORTUNITY TO
ACT ON THAT, AND CHANGE THE
LAW.
>> LET ME ASK THIS QUESTION,
THEY HAVEN'T CHANGED THE LAW
IN YOUR ARGUMENT, BUT THE
STATUTE SPECIFICALLY LIMITED
TO THE YOU DO NOT AGREE TO
ACTIONS IN THIS STATE.
>> THE YES THE TERMS OF THE
STATUTE SFLIEMENT EX-SUPPRESS
TERMS OF THE STATUTE LIMIT TO
THE COURTS IN THIS STAYS PLUS
THE FEDERAL YOU CAN DO THE
FEDERAL CASES
>> CORRECT.
>> BUT THE COURTS IN THIS
STATE.
SO AS JUSTICE WELLS SAID IF
THIS PRIOR VIOLENT FELONY
OCCURRED IN GEORGIA WHAT
EXPRESS AUTHORITY WOULD YOU
HAVE TO FILE AN ACTION IN
GEORGIA?
>> I CAN'T SAY THAT I WOULD
HAVE AN EXPRESS AUTHORITY, GO
TO GEORGIA, NOR WOULD ANY ONE
THAT I KNOW AT CCR BE ABLE TO
GO TO GEORGIA BUT I THINK IF
THE CONVICT SHAIN ROSE IN
JORMG!!$$!!!!!!!!
JORMGA IT WOULD BE THE
RESPONSIBILITY OF THE PUBLIC
DEFENDER SYSTEM IN GEORGIA, TO
-- TO CHALLENGE THAT CASE.
>> WE GO BACK TO THIS
SITUATION, WHICH IS THAT
WITHOUT THERE BEING A
CONSTITUTIONAL VIOLATION, THE
STATE IS BASICALLY SAID, AND
YOU OBVIOUSLY GOT BRADY
INFORMATION!!$$!!!!!!!!!!!!!!!!!!!!
INFORMATION, SO YOU MUST HAVE
BEEN INVESTIGATING THIS PRIOR
VIOLENT FELONY, NOBODY IS
SAYING, THAT YOU CAN'T
ACTUALLY LEAST I'M NOT HEARING
IT INVESTIGATE, A PRIOR
VIOLENT FELONY TO SEE IF
GROUNDS THERE ARE TO SET IT
ASIDE OR TO -- EVEN, AND THEN
TO ADVISE, THE DEFENDANT AND
THEN EVEN -- THE CASE TO THE
TRIAL JUDGE THAT THIS IS THE
KIND OF CASE THAT HAS MERIT,
BUT IS REALLY NEEDS
REPRESENTATION!!$$!!!!!!!!!!!!!!!!!!!!!!!!!!
REPRESENTATION, IT IS JUST
MEANS, THAT YOU ARE NOT THE
ONE TO -- THAT THEN PURSUE
THAT CASE NOW, WE MAY LOOK AND
SAY THAT IS A GOOD POLICY BAD
BOEFL OEFL POLICY THAT IS WHAT
LEGISLATURE PROBABLY HAD IN
MIND OR DIDN'T IN HE DIDN'T
HAVE IT IN MIND BUT I DON'T --
I THINK THAT IS NOT FOR THIS
COURT, ABSENT THERE BEING A
CONSTITUTIONAL VIOLATION, SO
YOU DO SEE THAT YOU ARE NOT
LIMITED IN YOUR REPRESENTATION!!$$!!!!!!!!!!!!!!!!!!!!!!!!!!
REPRESENTATION, BECAUSE YOU
STILL CAN INVESTIGATE THIS
UNDERLYING PRIOR VIOLENT
FELONY TO SEE IF IT IS JUST
LIKE ANY OTHER AGGRAVATE$$!!!!OR
SUBJECT TO ATTACK.
BUT YOU -- THE STATUTE DOESN'T
THEN ALLOW YOU TO SEPARATELY,
REPRESENT THE CLIENT IN
SETTING ASIDE THAT ACKNOWLEDGE
-- AGGRAVATE$$!!!!OR --
>> I THINK THE STATE COULD
OBJECT SAY THE ARE SPENDING
CCR FUNDS ON THIS
INVESTIGATION OBJECT ATTENTION
RECORDS SO FORTH.
>> THOOVENT SAID THAT YET THAT
IS NOT -- THEY HAVEN'T SAID
THAT YET THAT IS NOT BEFORE
US.
>> RIGHT IT SEEMS TO ME THAT
IF I'M GOING TO BE ABLE TO
INVESTIGATE THE CLAIM WHO
WOULD BE BETTER TO REPRESENT
THE CLIENT THAN CCR.
>> I MAY TOTALLY AGREE WITH
YOU OBVIOUSLY JUDGE SEEING
THIS SAW IT WAS AN IMPORTANT
CONVICTION BUT AGAIN, I THINK,
CAN'T GET AROUND, AS WE HAVE
TO DO FOR ALL CASES, WHAT IF
IT IS AN UNIMPORTANT
CONVICTION WE'RE WE CAN'T
START MAKING AS THE
QUALITATIVE!!$$!!!!!!!!!!!!!!!!!!!!
QUALITATIVE, JUDGMENTS, ON HOW
IMPORTANT THAT CONVICTION WAS.
>> I WOULD SUBMIT THAT ANY
PRIOR VILENT FELONY USED TO
AGGRAVATE A DEATH PENALTY IS
GOING TO BE -- DEATH SENTENCE
IS GOING TO BE A SIGNIFICANT
AGGRAVATE!!$$!!!!!!!!!!!!!!!!
AGGRAVATOR.
>> WOULD YOU ADDRESS THE --
EQUAL PROTECTION ARGUMENT THE
STATE MADE YOU DO AGREE OR
DISAGREE THAT REGISTRY COUNSEL
SPECIFICALLY IS PRECLUDED FROM
DOING ANYTHING, BUT
POSTCONVICTION CAPITAL
COLLATERAL CASE?
>> MY UNDERSTANDING IS THAT
THE REGISTRY COUNSEL ARE PRO
4IBITTED FROM REPRESENTING
CLIENTS PRO BONO MUCH SAME AS
CCR.
I DON'T KNOW THAT THERE IS ANY
EXPLICIT --
>> 27711, 1C SAYS
POSTCONVICTION CAPITAL
COLLATERAL PROCEEDINGS, AND IT
DEFINES IT MEANS ONE SERIES OF
COLLATERAL LITIGATION OF AN
AFFIRMED CONVICTION AND
SENTENCE OF DEATH.
SO I THINK WOULD YOU AGREE,
THAT THIS ACTION THAT YOU ARE
SEEKING TO BRING, IS NOT AN
ATTACK ON A CONVICTION AND
SENTENCE OF DEATH.
IT IS OH --
>> NONCAPITAL CASE, THAT YOU
ARE SEEK TO GO SET ASIDE.
>> WITH RESPECT I DON'T AGREE
WITH THAT.
I THINK THAT ONCE THE
AGGRAVATE$$!!!!OR IS INTRODUCED IN
THE DEATH-PENALTY CASE, AS --
AS TO SUPPORT THE DEATH STEN
IT BECOMES PART AND PARCEL OF
THAT DEATH PENALTY CASE.
>> YOU DO AGREE THERE ARE
GOING TO BE TWO LITIGATION
HAS?
THAT YOU WOULD HAVE TO GO TO
THE COURT THAT HAS
JURISDICTION OVER THAT OTHER
CASE GOING TO BE DIFFERENT
THAN THIS COULD YOUS -- COURT.
>> CORRECT, AND -- ARGUABLY
UNTIL THAT PRIOR VIOLENT
FELONY IS SET ASIDE YOU DON'T
REALLY HAVE A CLAIM FOR
CHALLENGE THE AGGRAVATE$$!!OR.
UNDER PAUL, AND --
>> SO IT WOULD REQUIRE TWO
LITIGATIONS YOU HAVE TO
COMPLETE THAT FIRST LITIGATION!!$$!!!!!!!!!!!!!!!!!!
LITIGATION, THEN COME BACK AND
DO THIS LITIGATION, SO THERE
WOULD BE TWO SERIES OF
LITIGATION!!$$!!!!!!!!!!!!!!!!!!
LITIGATIONS.
>> YEAH, I WOULD THINK THAT
BOTH COULD BE COMPLETED, ON A
SORT OF A -- PARALLEL BASIS
AND WE WOULDN'T HAVE TO
COMPLETELY GO THROUGH ONE
LITIGATION BEFORE THE OTHER I
UNDERSTAND YOUR CONCERN.
>> BUT IN ANSWER TO JUSTICE
QUESTION, WHAT ABOUT 27711
PARREN 11 WHICH SPECIFICALLY,
STATES.
THAT AN ATTORNEY THIS REGISTRY
COUPES, UNDER 27.710, TO
REPRESENT A CAPITAL DEFENDANT,
IT GOES ON, TO SAY MAY NOT
REPRESENT THE CAPITAL
DEFENDANT CHALLENGE A
CONVICTION OR SENTENCE OTHER
THAN THE CONVICTION AND
SENTENCE OF DEATH FOR WHICH
THE APPOINTMENT WAS MADE.
IS NOT THAT A CLEAR INDICATION
THAT IN ANSWER TO HIS QUESTION
THAT REGISTRY COUNSEL CANNOT
DO WHAT YOU ARE TRYING TO DO
IN THIS CASE?
>> I THINK, IF THE PRIOR
CONVICTION HAS NO BEARING ON
THE DEATH SENTENCE THAT THAT
WOULD BE TRUE.
>> BUT THERE IS NO LANGUAGE IN
HERE, THAT SAYS OTHER THAN
WHEN USED FOR AN AGGRAVATING
CIRCUMSTANCE SAYS THEY CANNOT
REPRESENT THEM CHALLENGING
CONVICTION OR SENTENCE OTHER
THAN THE CONVICTION OR
SENTENCE OF DEATH FOR WHICH
THEY WERE APPOINTED.
>> SURE.
THE RESPONSIBILITIES OF
COLLATERAL COUNSEL TO
CHALLENGE THE SENTENCE OF
DEATH NECESSARILY IS GOING TO
INVOLVE CHALLENGE THE
AGGRAVATING FACTORS WHETHER
THEY ARE ACT, CCP, SO FORTH
THE WAY THAT WE CHALLENGE.
>> SO THIS SENTENCE YOU ARE
REALLY SAYING -- OTHER THAN A
CONVICTION AND SENTENCE THAT
IS USED AS AB A -- AS AN
AGGRAVATED CIRCUMSTANCE THAT
IS WHAT THE STATUTE REALLY
MEANS IS THAT YOU ARE SAYING.
>> I THINK THAT IF THE
LEGISLATURE WERE CONCERNED,
ABOUT THE REPRESENTATION OF
MILTON AND PRESS TORNGS RIVERA
THE OTHER CASES WHERE THIS
ISSUE HAS ARISEN BEFORE, THEY
HAVE HAD OPPORTUNITY OVER THE
LAST TEN MORE THAN 10, 15
YEARS, TO PROHIBIT CCR TO
CHANGE THE STATUTE, SO THAT IT
IS MORE CLEAR.
THIS IS NOT BELOW KILGORE IS
NOT THE FIRST TIME THAT CCR
HAS REPRESENTED A DEFENDANT --
AGGRAVATE$$!!!!OR -- AND THE
LEGISLATURE!!$$!!!!!!!!!!!!!!!!!!!!
LEGISLATURE, HASN'T SAID THAT
WE CAN'T DO IT.
>> BUT THEY HAVE SAID IT AS IT
TOOOOS AS TO REGISTRY WHETHER
THAT SAYS YOU CAN DO IT WOULD
THEN PUT SOMEBODY WHO IS
REPRESENTED BY THE REGISTRY,
IN A -- WORSE SITUATION, I
MEAN I SEE, MR. DO YOU PROOES,
MR. HENNIS SEEMS TO ME, THAT
YOU GOT, A NEAR AND VICTOR, TO
SAY MAKE IT CLEAR,99WHETHER
THIS IS THE KIND OF THING YOU
WANT US TO BE DOING OUR WANT
IT TO BE DONE ANOTHER WAY, I
MEAN, I JUST FEEL LIKE WE ARE
REALLY STEPPING INTO THE
LEGISLATIVE ARENA IN TRYING TO
FILL IN THESE GAPS THAT MAYBE
WE ARE -- THOUGHT ABOUT, MAYBE
WEREN'T THOUGHT ABOUT.
>> I UNDERSTAND, THAT CONCERN.
BUT I WOULD JUST HAVE TO COME
BACK TO THE FACT THAT AGAIN,
THIS IS -- THIS IS NOT
SOMETHING NEW THIS IS -- THIS
HAS BEEN ADDRESSED BY THE
COURT BEFORE.
>> HAS ALSO BEEN ADDRESSED BY
THE LEGISLATURE AND IN 1997
THE LEGISLATURE AMONG PASSING
THE REGISTRY, ALSO, MY
RECTION, IS, AMENDED 924, AND
ADD THAT SECTION 9,!!$$!!NINE, AND 251
WHICH MADE IT EXPRESS THAT NO
RESOURCES OF THE STATE SHALL
BE PAID FOR EMPLOYEES, OR USES!!$$!!!!!!
USES, SEVERAL OTHER PEOPLE
THERE, OR ENTITIES, THERE, FOR
THE PURPOSES OF BRINGING
COLLATERAL ACTION ALSO IN
EXPRESSLY STOOUL OR
STATUTORILY MANDATED DIDN'T
SAY WE ARE GOING THIS BY
IMPLICATION IT SAYS IT HAS TO
BE EXPRESSLY MANDATED, AND, IN
TRYING TO GET FUNDS, FOR CCRC.
IT IS IMPORTANT, THAT THIS
COURT ADHERE TO WHAT THE
LEGISLATURE HAS DONE IN THIS
AREA!!$$!!!!!!
AREA.
>> I THINK BY PUTTING THE
BURDEN OF CCR ON CHALLENGING
THE CONVICTION AND SENTENCE
BUT BY NOT ALLOWING THEM TO
CHALLENGE THE AGGRAVATORS,
THAT ESTABLISHED THAT
SENTENCE, WE ARE -- WE ARE NOT
BEING ABLE TO FULFILL OUR
RESPONSIBILITY UNDER THE
STATUTE.
I UNDERSTAND, THE $$COURT'S
CONCERN WITH REGARD TO THAT,
AND THERE -- THERE IS A VAGARY
THERE, IN THE STATUTE THE WAY
THAT IT IS WRITTEN, I DON'T
THINK THAT IT IS PROPER TO
READ ANYTHING ADDITIONAL INTO
THE STATUTE AS THE STATE WANTS
TO DO.
IN TERMS OF THE LEGISLATIVE
INTENT AND SO FOR THE I DON'T
SEE ANYTHING IN THE STATUTE
THAT PREVENTS US FROM DOING
THE DUTY THAT WE ARE BOUND TO
DO TOED A INDICATED ON BEHALF
OF OUR CHALLENGES AND
CHALLENGE THE DEATH SENTENCE
BY CHALLENGING THE ACTIVATE$$!!OR.
-- AGGRAVATE$$!!OR.
>> AND YOU COULD NOT FULFILL
THAT DUTY, BY THE BRINGING OF
A ACTION BY PUBLIC DEFENDER,
APPOINTED COUNSEL, AND IF IN
FACT THAT ACTION IS OVERREADS
TURNED -- OVERREADS TURNED YOU
WOULD BE ABLE TO USE IT IN
COLLATERAL PROCEEDINGS OR IF
AFFIRMED DOUBT HAVE THAT
ARGUMENT ANYMORE.
>> YOUR QUESTION IS -- THE
PUBLIC DEFENDER ASSUME THE
ROLE OF.
>> I AM SAYING, THAT IF THE
PUBLIC DEFENDER, IS APPOINTED,
OR SOME OTHER COUNSEL IS
APPOINTED, TO TAKE CARE OF
THIS OTHER THAN CAPITAL CASE,
THEN YOU WOULD THEN HAVE BEEN
IN A POSITION, AS THE CAPITAL
ATTORNEY, TO EITHER SAY, THAT
CONVICTION HAS BEEN OVERREADS
TURNED, OR THE -- YOERN TURNED
OR THE STATE WOULD SAY THAT
CONVICTION AFFIRMED, IT HAS
BEEN GONE THROUGH, THE
PROCEEDINGS!!$$!!!!!!!!!!!!!!!!!!!!
PROCEEDINGS.
CORRECT?
>> THAT IS CORRECT, BUT AGAIN
THAT WOULD BRING US BACK TO
THE OTHER POLICY CONSIDERATION!!$$!!!!!!!!!!!!!!!!!!!!!!!!
CONSIDERATIONS OF THE EXPENSE,
AND THE USE OF LIMITED
RESOURCES!!$$!!!!!!!!!!!!!!!!
RESOURCES.
>> OUR ASSISTANCE OF YOU
XAUSTEDED ALL YOUR TIME THANK
YOU FOR THE ARGUMENTS I THINK
THE COURT UNDERSTANDS THE
POSITION YOU PRESENTED YES,
MA'AM YOU HAVE A MINUTE AND A
HALF!!$$!!!!!!
HALF.
>> JAIFRNG HE THANK YOU BRIEF!!$$!!!!!!!!
BRIEFLY JUSTICE PARENT AE FOR
CLARIFICATION THE STATUTE DOES
NOT AUTHORIZE CCR, TO GO OUT,
AND UNDERMINE PRIOR VILENT
FELONY CONVICTIONS, IN THIS
PARTICULAR CASE THERE WAS AN
INVESTIGATION, IN POLK COUNTY
IN THE POLK COUNTY
DEATH-PENALTY CASE, AND THE
1978 WAS CASE WAS ALSO, A POLK
COUNTY CASE, AND RECORDS, IN
THE BRADY CLAIM WHICH IS THE
DANGER OF INTERMINGLING THESE
THE INVESTIGATION THAT CCR
DID, LED TO THEM MAKING A
BRADY CLAIM IN THEIR 1989 CASE
IS, DO NOT WANT TO BE.
>> I WANT TO MAKE SURE SO YOU
ARE SAYING NO, THEY CANNOT
THEY CAN'T EVEN INVESTIGATE
THE MERITS THAT WOULD HAVE TO
BE LEFT TO THE DEFENDANT --
DEATH ROW P$$RO SE, TO LOOK INTO
THE MERITS OF ANYTHING THAT
HAPPENED IN THE OTHER PRIOR
VIOLENT FELONY?
>> YOUR HONOR, AND PERHAPS, MY
RESPONSE WAS INART FULL IN
THEY COME UP DURING THE COURSE
OF THEIR LEGITIMATE
INVESTIGATION, AND IN THEIR
DEATH-PENALTY CASE, WITH FOR
EXAMPLE A GIDEON A VIOLATION
ON A PRIOR CASE THEY CERTAINLY
IT WOULD BE BANT UPON --
INCUMBENT UPON THEM TO ALERT
THE DEFENDANT THEY MAY NOT GO
TO 19 # #$$, FLIPPING THROUGH
THE 1978 FILES, INTERVIEWING
WITNESSES.
>> THAT IS NOT THE CERTIFIED
QUESTION HERE IS IT.
>> NO, IT IS NOT THE QUESTION
ACTUALLY IS ON -- REVIEW OF
WHETHER THE TRIAL COURT DEPART!!$$!!!!!!!!!!
DEPARTED FROM THE ESSENTIAL
REQUIREMENTS OF THE LAW IN
RULING THAT UNDER CHAPTER 27,
UNDER BUTTERWORTH VERSUS
KINNEY!!$$!!!!!!!!!!
KINNEY, OLIVE VERSUS MOSS CCR
WAS STATUTORILY AUTHORIZED TO
REPRESENT DEFENDANT DEAN
KILGORE IN NONCAPITAL CASE THE
ANSWER TO THAT IS SQUARELY NO,
THERE WAS NO DEPARTURE FROM
THE ESSENTIAL REQUIREMENT OF
THE LAW.
>> THANK YOU.
>> THANK YOU YOUR HONOR.
>> I THINK WE UNDERSTAND THE
ARGUMENTS!!$$!!!!!!!!!!!!!!!!
ARGUMENTS.
>> THANK YOU VERY MUCH.
>> THANK YOU VERY MUCH