>> HEAR YE, HEAR YE, HEAR YE. THE SUPREME COURT OF FLORIDA IS NOW IN SESSION. ALL WHO HAVE CAUSE TO PLEAD, DRAW NEAR, GIVE ATTENTION YOU SHALL BE HEARD. GOD SAVE THESE UNITED STATES, THE GREAT STATE OF FLORIDA THIS HONORABLE COURT. LADIES AND GENTLEMEN, THE SUPREME COURT OF FLORIDA. PLEASE BE SEATED. >> WELCOME TO THE FLORIDA SUPREME COURT. OUR FIRST CASE FOR THE DAY IS ABDOOL VERSUS BONDI. YOU MAY PROCEED. >> PLEASE THE COURT AND COUNSEL. MY NAME IS MARTIN MCCLAIN AND I'M HERE ON BEHALF OF THE PETITIONER'S IN CASE NUMBER 13-1123. >> WOULD YOU PLEASE BRING THE MIC UP. >> THIS HAPPENS EVERY TIME I WOULD SAY. >> BECAUSE WE KNOW YOU'RE SUCH A LOW-KEY KIND OF GUY. >> WELL I, THANK YOU FOR NOTICING. AT ISSUE IS THE TIMELY JUSTICE ACT WHICH WENT INTO EFFECT, I THINK IT WAS JULY 1st OF LAST YEAR, 2013. AND IN CONNECTION WITH THAT I GUESS ONE PLACE TO START IS THAT WITH GIDEON v. WAINWRIGHT IS WHEN THE POST-CONVICTION PROCESS AND RULES THAT TURNED INTO RULE 3.850 WAS FIRST DEVELOPED. IT WAS DEVELOPED TO PROVIDE A PROCEDURE FOR HEARING GIDEON CLAIMS. AND SINCE THAT POINT IN TIME IT HAS EVOLVED TO BE WHAT IS THE, TO SET FORTH THE PROCEDURE FOR POST-CONVICTION LITIGATION AND CERTAINLY IN 1972 WITH FURMAN v. GEORGIA AND ADMONITION THAT THE EIGHTH AMENDMENT REQUIRES A RELIABLE DETERMINATION THAT THE PERSON TO BE EXECUTED IS THE WORST OF THE WORST. ALSO, 3.850 HAS SERVED THAT FUNCTION AS PROVIDING THE VEHICLE, A PROCEDURAL VEHICLE FOR ADJUDICATING CLAIMS. TO THE EXTENT IT IS PROCEDURAL IT WITHIN THE COURT'S RULE MAKING POWER AND IT'S EXCLUSIVELY WITHIN THIS COURT'S RULE-MAKING POWER. >> WHAT PART OF IT IS PROCEDURAL? MY PROBLEM WITH YOUR ARGUMENT BEFORE THIS TIMELY JUSTICE ACT REALLY THERE WERE NO GUIDELINES FOR THE GOVERNOR AS FAR AS WHEN HE COULD SIGN A WARRANT. IT WAS JUST OPEN-ENDED. AS YOU KNOW UNDER GOVERNOR MARTINEZ, HE JUST SIGNED A WHOLE LOT OF WARRANTS. NOTHING PREVENTS THIS COURT FROM STAYING A CASE IF THERE IS ONGOING SUCCESSIVE POST-CONVICTION MOTIONS. IT DOESN'T INTERFERE WITH ANYTHING IN 3.851. SO I'M HAVING, ALTHOUGH THERE ARE PARTS OF THIS ACT, I'M THINKING DOES THIS REALLY ACCOMPLISH WHAT THE LEGISLATURE WANTS TO ACCOMPLISH, I'M NOT SURE I BUY YOUR ARGUMENT THIS IS PROCEDURAL FOR THIS COURT. MAYBE THE GOVERNOR HAS SOME ISSUES BUT THAT IS FOR THE GOVERNOR. >> BUT IT ALSO FOR THIS COURT TO DECIDE WHETHER IT INFRINGES ON THE GOVERNOR'S POWER AS WELL. >> THE GOVERNOR, THE THING THAT SEEMS TO BE SORT OF THE FAIL-SAFE FOR THE GOVERNOR, WE'RE SEEING IT ALREADY, THE GOVERNOR CONTROLS WHEN CLEMENCY IS COMPLETED, CORRECT? >> YES. >> SO EVEN THOUGH THERE ARE MANY CASES CERTIFIED BY THE CLERK IN OCTOBER, IT APPEARS THAT THE GOVERNOR MUST BE TAKING THE POSITION HE WILL NOT SIGN A WARRANT UNTIL HE COMPLETES CLEMENCY, WHICH IS UP TO HIM. >> WE DON'T HAVE A BLANK SLATE HERE. IN THE PAST FEW YEARS THERE HAS BEEN LITIGATION REGARDING THE GOVERNOR'S CLEMENCY POWER AND THE GOVERNOR'S WARRANT-SIGNING POWER AND THIS COURT HAS FOUND WHEN IT'S BEEN CHALLENGED AS ARBITRARY AND NOT IN COMPLIANCE WITH FUHRMAN, THAT IT IS THE GOVERNOR'S ABSOLUTE DISCRETION TO SIGN OR NOT SIGN A WARRANT. >> LET ME GO BACK TO YOUR ARGUMENT. TELL US, YOU'RE SAYING IT IS UNCONSTITUTIONAL BECAUSE IT IS PROCEDURAL? >> YES. >> WHAT PARTS PROCEDURAL ARE INFRINGING ON THIS COURT'S RULE MAKING, WHAT PARTS SPECIFICALLY ARE PROCEDURAL THAT YOU'RE ARGUING? >> IT IS DESIGNED TO CUT OFF EXCESSIVE LITIGATION, OR TO PROVIDE THAT SUCCESSIVE LITIGATION HAS TO BE DONE UNDER THE TIME PARAMETERS OF A DEATH WARRANT. >> I GUESS WHAT I -- DOES IT INFRINGE ON OUR ABILITY TO ISSUE A STAY IF A CASE WARRANT SIGNED IN A CASE WHERE THERE IS ONGOING SUCCESSIVE POST-CONVICTION LITIGATION? AS AN EXAMPLE, SWAFFORD. SWAFFORD WAS CERTIFIED IN OCTOBER AS BEING UNDER THOSE CRITERIA. >> CORRECT. >> SWAFFORD HAD ONGOING LITIGATION. IF A WARRANT HAD BEEN SIGNED AFTER OCTOBER AND THIS COURT WAS IN THE PROCESS ONE MONTH LATER OF ISSUING ITS OPINION WE WOULD HAVE HAD THE AUTHORITY TO ISSUE A STAY OF, OF THAT WARRANT WOULDN'T WE, UNTIL, AND THEN HE IS NOW OFF OF DEATH ROW. >> HISTORICALLY THIS COURT HAS ISSUED -- LET ME BACK UP. I FIRST STARTED IN JANUARY OF 1988 AT CCR. SO I'VE SEEN A LOT OF DEVELOPMENTS AND BACK THEN WHEN THIS COURT ISSUED A STAY, IT WAS AN INDEFINITE STAY. THIS COURT SAID, NO, THE EXECUTION CAN NOT GO FORWARD AND WE'RE JUST GOING TO FOLLOW THE USUAL PROCEDURE AND TIMES THAT ARE SET FORTH IN THE RULE. IT IS IN 1996 WHEN THE LEGISLATURE ADOPTS THE CONTINUOUS WARRANT PROVISION. THIS COURT'S MANNER OF TREATING A STAY IS DIFFERENT NOW THAN IT WAS BACK THEN. THIS COURT GRANTS STAYS, TEMPORARY STAYS. I HAVE NOT SEEN AN INDEFINITE STAY FROM THIS COURT. SO THIS COURT, THE WARRANT SIGNING CAUSES THIS COURT TO CHANGE THE RULES, THE TIME PARAMETERS FOR HOW TO PROCEED. >> THERE IS NOTHING IN OUR CASE LAW, THERE IS NOTHING IN OUR CASE LAW THAT INDICATES OR IN OUR PRACTICE THAT INDICATES THAT WE'VE DECIDED THAT WE, THAT WE'RE SOMEHOW CONSTRAINED FROM ISSUING WHATEVER LENGTH OF STAY IS NECESSARY FOR THE CLAIMS THAT HAVE BEEN MADE TO BE ADEQUATELY CONSIDERED AND I DON'T SEE HOW ANYTHING IN THIS LAW WOULD INFRINGE ON OUR ABILITY TO ISSUE WHATEVER STAY IS NECESSARY TO INSURE THAT THE CLAIMS ARE ADEQUATELY CONSIDERED AND DUE PROCESS IS OBSERVED IN THE PROCEEDINGS. >> AND I UNDERSTAND YOUR POINT, YOUR HONOR, AND MY POINT IS ON BEHALF OF THE PETITIONERS, I NEED TO KNOW WHAT IS GOING ON, I NEED NOTICE AND OPPORTUNITY TO BE HEARD. WE'VE GOT A STATUTE THAT IS NOW SET UP TO CHANGE THINGS IN A WAY THAT EVERYBODY DISAGREES AS TO WHAT IT DOES. >> BUT YOU, YOU KNOW, THAT SOUNDS GOOD. >> THANK YOU. >> BUT YOU'RE NOT SAYING ANYTHING SPECIFIC. ARE YOU TELLING US YOU THINK THE ENTIRE STATUTE IS PROCEDURAL AND THAT IT IS A VIOLATION OF SEPARATION OF POWERS? >> WELL THE -- >> THE ENTIRE STATUTE? >> AS NOTED IN THE PETITION, WE'RE NOT, THERE ARE SOME ASPECTS OF THE TIMELY JUSTICE ACT WE'RE NOT ADDRESSING. >> TELL US SPECIFICALLY, AND I THINK JUSTICE PARIENTE HAS ASKED YOU THIS AT LEAST A COUPLE TIMES, WHAT IS IT, WHAT PROVISION ACTUALLY INTERFERES WITH OUR RULE-MAKING AUTHORITY? WHAT? >> 922, WHAT IS IT, .052. >> THAT IS THE LIST, THE LIST SENT TO THE GOVERNOR. IT IS VERY DIFFICULT TO UNDERSTAND WHY THIS COURT IS UNCONSTITUTIONAL UNDER A SEPARATION OF POWERS BASIS FOR THIS COURT TO GIVE INFORMATION THAT THIS COURT HAS. WE DO IT IN ALL OF THE, WITH REGARD TO ALL OF OUR CASES AND HOW THEY'RE PROCEEDING AND, IN CONNECTION WITH ANY DOLLARS, ANY BUDGET REQUESTS, IT IS VERY NATURAL AND NORMAL WITHIN THE OPERATION OF THE COURT SYSTEM TO GIVE INFORMATION, AND STATUS, THAT THAT COURT HAS. >> BUT IT IS REQUIRING THIS COURT TO GIVE INFORMATION THAT THIS COURT DOESN'T HAVE. >> WHAT DON'T WE HAVE? >> YOU DON'T HAVE WHAT IS GOING ON IN FEDERAL COURT. >> ARE YOU SUGGESTING THAT WE DON'T KNOW WHEN THE FEDERAL COURT ISSUES FINAL ORDERS ON THESE THINGS? >> CORRECT. >> WELL, I DON'T KNOW, WHERE DO YOU GET THAT INFORMATION? >> WELL, BECAUSE THE LIST AS ORIGINALLY SENT HAD MISTAKES IN IT. >> THAT IS NOT THE ISSUE. THE ISSUE IS WHERE DO YOU GET THE INFORMATION THAT WE DO NOT, I MEAN FOR EXAMPLE. I GO UPSTAIRS AND LOOK AT MY COMPUTER AND I GET THAT INFORMATION COMING FROM THE CLERK'S OFFICE WHEN ORDERS ARE ENTERED IN FEDERAL COURT. >> YOU MAY BE GETTING INFORMATION BUT MAY BE GETTING ERRONEOUS INFORMATION. >> BUT AGAIN, HOW DOES THAT AFFECT SEPARATION OF POWERS IF A MISTAKE IS MADE? MISTAKES CAN BE CORRECTED. NOW IF YOU SAY THERE IS NO WAY TO CORRECT THOSE MISTAKES, MAYBE THAT IS A DIFFERENT SORT OF ISSUE. I'M NOT JUST SPEAKING DIRECTLY TO GIVING INFORMATION TO ANOTHER BRANCH OF GOVERNMENT. >> IT IS SETTING A PROCEDURE FOR WHAT INFORMATION THIS COURT IS TO GATHER AND PROVIDE AND THIS COURT IS TO GATHER INFORMATION REGARDING FEDERAL HABEAS APPEALS. NOW -- >> WELL WE ALREADY, WE ALREADY, WE HAVE A CASE ON A PERSON AND WE ALREADY GET THAT INFORMATION FROM THE FEDERAL COURTS. >> YOU, SOMETIMES GET IT AND SOMETIMES YOU DON'T. THERE'S ALSO RULE 60-B PROVISION, IT MAKES NO PROVISION, THE STATUTE DOESN'T COVER THAT. THAT IS YOU CAN SEEK TO REOPEN A FEDERAL HABEAS CASE IN CERTAIN CIRCUMSTANCES. FOR EXAMPLE, RECENTLY RELEASE HAS BEEN GRANTED ON A 60-B IN MARTINEZ v. RYAN SITUATION. >> THE FEDERAL COURTS ARE LESS RELUCTANT THAN THIS COURT TO GRANT STAYS ALL THE TIME. THE U.S. SUPREME COURT. WHAT YOU'RE SAYING ABOUT THE LIST, YOU KNOW I THOUGHT MAYBE THIS COURT SHOULD ENHANCE THE LIST, SO THERE IS OPPORTUNITY AGAIN IF SOMETHING IS INCORRECT, TO LET THE AG OR CCR GIVE US THAT INFORMATION BUT, BUT WE ALL WANT AN ACCURATE STATUS OF WHERE THESE CASES ARE IN POST-CONVICTION AND YOU KNOW AND I KNOW THAT THERE ON THAT LIST THERE ARE MANY CASES IN WHICH NOTHING IS HAPPENING, WHICH IS, EVERYTHING IS FINISHED AND SO THE CRITICISM IS, WHY AREN'T WARRANTS BEING SIGNED IN CASES -- LET'S GET BACK DOWN TO THIS. IT IS NOT, NO ONE IS WORRIED ABOUT THE CASE WHERE THERE IS ONGOING LITIGATION. THE QUESTION THAT THE LEGISLATURE HAD, WHY ARE CASES TAKING SO LONG TO BE FINALIZED? NOW YOUR INTEREST IS THAT THEY STAY OPEN FOREVER AND THAT'S FINE BECAUSE THAT'S YOUR, YOU KNOW, YOU'RE ADVOCATING FOR YOUR CLIENTS BUT THE ADMINISTRATION OF JUSTICES THAT AT SOME POINT IF THERE'S TO BE A DEATH, DEATH PENALTY IN THIS CASE, THEN WARRANTS NEED TO BE SIGNED AND COMPLETED. >> YOUR HONOR, YOU JUST, IN YOUR STATEMENT STARTED OFF BY SAYING, NO ONE'S CONCERNED ABOUT THE CASES WHERE THERE IS LITIGATION GOING ON. I'M CONCERNED BECAUSE THOSE INDIVIDUALS ARE ON THE LIST AND -- >> BUT THE PROCEDURE, WE DON'T, WE DIDN'T HAVE A PROCEDURE BEFORE FOR CERTIFYING OR KEEPING IT CURRENT. I MEAN THIS COURT COULD DECIDE TO ADOPT SOME INTERNAL MECHANISM TO ENHANCE THE LIST SO THAT, AGAIN, I THINK WHAT WE'RE TRYING TO GET AT IS, WE MAY NOT AGREE THIS IS THE BEST POLICY FOR WHAT THEY'RE WANTING TO ACCOMPLISH BUT WHERE DOES IT FRINGE ON THIS COURT'S AUTHORITY? AND THAT'S YOUR PRIMARY ARGUMENT THAT IT DOES. >> YOU JUST INDICATED THIS COURT TO ADOPT A PROCEDURE FOR DEVELOPING THE LIST. IT IS PROCEDURAL. IF WE'RE TALKING ABOUT THIS COURT DEVELOPING A PROCEDURE FOR CREATING THE LIST, IT'S PROCEDURAL. >> YOU WANT US TO STRIKE THAT PROVISION AND THEN ENACT OUR OWN LIST SO THAT WE CAN SATISFY THE LEGISLATURE AND THE GOVERNOR? WE CAN DO THAT. >> THERE SHOULD BE A OPPORTUNITY FOR THE INDIVIDUAL WHO SO CONDEMNED TO HAVE INPUT, TO POINT OUT I SHOULDN'T BE ON THE LIST. >> THAT IS NOT BINDING ON THE LITIGANTS IN SOME WAY. THERE IS NOTHING TO PROHIBIT YOU, THAT I SEE, FOR TO YOU BE ABLE TO GO TO THE GOVERNOR'S OFFICE ONCE THAT NOTIFICATION IS SENT FROM THE CLERK, SAYING HERE IS OUR INFORMATION. THIS IS WHAT HAPPENED IN STATE COURT AND THIS, TO THE BEST OF OUR KNOWLEDGE IS WHAT HAPPENED IN FEDERAL COURT. THERE IS NO CERTIFICATION THAT IS 100% ACCURATE. YOU'RE STILL OPEN BEING ABLE TO TELL THE GOVERNOR'S OFFICE, HEY, THERE IS SOME LITIGATION GOING ON HERE. >> THE FACT THAT YOU MAY BE ABLE TO GET AROUND A VIOLATION OF SEPARATION OF POWERS AND CREATE SOME SORT OF ACCOMMODATION -- >> YOU'RE ASSUMING THERE IS SEPARATION OF POWERS. LIKE JUSTICE PARIENTE, I DON'T SEE IT. SIMPLY A NOTIFICATION OF THE STATUS AS WE KNOW IT. >> IT SETS FORTH THE PROCEDURE FOR THE NOTIFICATION. THAT IS PROCEDURAL. >> WHAT YOU'RE SAYING IS WE SOMEHOW BY RULE-MAKING AUTHORITY OR SOMEHOW OBLIGATE THE CLERK TO DO SOMETHING MORE THAN WHAT THE STATUTE DOES. WHY SHOULD WE DO THAT? >> BECAUSE THE CREATION OF THE LIST IN PROVIDING IT TO THE GOVERNOR IS PROCEDURAL. IT IS, FOR THIS COURT TO DO AND THEN THE STATUTE PROVIDES THAT THE GOVERNOR DOESN'T HAVE DISCRETION TO DECIDE WHEN TO SIGN A WARRANT OR NOT. HE MAY STILL HAVE THE CLEMENCY POWER BUT THIS COURT HAS RECOGNIZED THOSE ARE TWO SEPARATE POWERS AND THE GOVERNOR, ACCORDING TO THE STATUTE, IS OBLIGATED TO SIGN A WARRANT. THERE ARE MANY PEOPLE WHO HAD CLEMENCY MANY YEARS AGO, MR. SWAFFORD, FOR EXAMPLE, UNDER THE STATUTE, HIS NAME WAS DELIVERED TO THE GOVERNOR AND THE GOVERNOR UNDER THE STATUTE WAS REQUIRED TO SIGN A WARRANT BECAUSE HE ALREADY HAD BEEN THROUGH CLEMENCY. THE FACT THAT HE DIDN'T, I MEAN ACTUALLY THIS COURT'S OPINION CAME OUT WITHIN THE 60-DAY TIME PERIOD ONCE HIS NAME WAS DELIVERED BUT THE OPERATION OF THE, IT'S AFFECTING BOTH THE JUDICIAL PROCEDURE AND ESTABLISHING PROCEDURE HERE AND IT IS TAKING AWAY A RIGHT THIS COURT HAD SAID WAS UNFETTERED. IN FACT IF THE LEGISLATURE CAN TAKE THAT WARRANT-SIGNING POWER, ABSOLUTE DISCRETION AWAY, THEN THAT IS SUBJECT TO FUHRMAN. THAT MEANS IT IS SUBJECT TO DUE PROCESS. >> EXPLAIN TO ME IF THIS STATUTE WAS SO ONEROUS, HE WAS SENT A LIST OF OVER 100 NAMES I BELIEVE. >> I BELIEVE IT WAS 140, YOUR HONOR. >> SHOULDN'T HE HAVE BEEN SENT, SHOULD HAVE BEEN, SIGNED A WARRANT ON ALL OF THOSE NAMES, ALL OF THOSE WHO HAVE BEEN THROUGH CLEMENCY? >> THAT IS HOW I READ THE STATUTE. >> SO HE DIDN'T. >> HE DIDN'T. >> SO THEN WHAT? >> I DON'T KNOW. THAT IS THE PROBLEM. WE'RE -- WHERE ARE WE'RE THE DEFENSE ATTORNEYS REPRESENTING THESE INDIVIDUALS AND WE DON'T KNOW WHAT THE LAW IS. WE DON'T KNOW WHAT IS GOING TO HAPPEN. >> YOU HAVE NEVER KNOWN WHEN A WARRANT IS GOING TO BE SIGNED, CORRECT? >> CORRECT. THERE HAS BEEN MONEY ALLOCATED IN THE PAST. WHEN THIS COURT CHANGED FROM TWO YEARS TO ONE YEAR THE 3.850 TIME THIS COURT REQUIRED THE LEGISLATURE TO APPROPRIATE MONEY. IF WE'RE GOING TO HAVE A BUNCH OF MORE WARRANTS IT IS GOING TO BE MORE EXPENSIVE. IF ATTORNEYS ARE GOING TO BE REQUIRED TO PRESENT -- >> YOU WANT US TO REQUIRE THE LEGISLATURE TO -- >> THAT'S WHAT THIS COURT DID. >> -- APPROPRIATE MORE MONEY? >> THAT'S WHAT THIS COURT DID -- >> CERTAIN WARRANTS ARE SIGNED, WE SHOULD TELL THE LEGISLATURE, WHAT? THAT YOU CAN NOT, THAT THE ABOVE CAN NOT SIGN WARRANTS UNLESS MORE MONEY IS APPROPRIATED? >> THIS COURT, IN ITS, I MEAN IN ITS RULE-MAKING POWER IN 3.851 RECOGNIZES THE CHANGE FROM TWO-YEAR TO ONE YEAR, AND ONLY MADE THE CHANGE IF THERE WAS PROMISE TO THE LEGISLATURE TO APPROPRIATE MORE MONEY. THAT IS WHY IT IS IMPORTANT FOR THIS COURT TO PROTECT ITS RULE-MAKING POWER. TO ALLOW IT TO GET REDUCED TAKES AWAY THIS COURT'S ABILITY TO EXTRACT MONEY FROM THE LEGISLATURE. AFTER -- >> GO BACK TO SOMETHING YOU SAID AND I'M GOING, YOU'RE IN YOUR REBUTTAL BUT I THINK IT IS IMPORTANT. YOU SAY YOU'RE NOT SURE WHETHER THE GOVERNOR OR YOU CAN'T TELL WHETHER THE GOVERNOR HAS THE ABILITY TO CONTROL STILL WHEN THE WARRANT IS SIGNED BY DECIDING WHEN CLEMENCY IS COMPLETED AND THAT IN SITUATIONS SO WHERE YOU DID -- YOU HAD MR. MOHAMMED HAD CLEMENCY. WAS THERE, WAS THERE A FIRST CLEMENCY PROCEEDING AND WAS THERE A SECOND ONE? HOW DID THAT WORK? >> IN HIS CASE IT WAS SORT OF COMPLICATED. THERE WERE TWO DIFFERENT DEATH SENTENCES IN TWO DIFFERENT COUNTIES. HE RECEIVED A DEATH WARRANT ON THE MIAMI-DADE CASE BACK IN THE MID '80s AND SO THERE HAD BEEN A CLEMENCY PROCEEDING AND I ACTUALLY DON'T KNOW BECAUSE THE GOVERNOR'S OFFICE POSITION IT IS A SECRET. THE CLEMENCY PROCESS IS A SECRET, THEIR POSITION WAS THERE HAD TO BE ANOTHER CLEMENCY AS TO THE BRADFORD COUNTY CASE. >> WAS THERE ANOTHER CLEMENCY? >> I DON'T KNOW. I KNOW THERE WAS A CLEMENCY ATTORNEY APPOINTED. MISS McDERMOTT WAS APPOINTED TO PRESENT A CLEMENCY PETITION BUT THERE ARE TWO SEPARATE CASES. IT IS KIND OF HARD TO USE -- >> YOU DON'T KNOW THE ANSWER AND MAYBE MISS DITTMAR KNOWS. THE QUESTION WHETHER CLEMENCY WAS HELD, SAID, 10, 15 YEARS AGO DOES THE GOVERNOR HAVE DISCRETION TO SAY, BEFORE SIGNING THE WARRANT I'M GOING TO DO AN UPDATED CLEMENCY WHICH WOULD HOLD OFF THE TIME PERIOD IN WHICH THE WARRANT HAS TO BE SIGNED? I MEAN THAT IS THE FAIL-SAFE FOR THE GOVERNOR. >> I KNOW THAT THERE HAVE BEEN PEOPLE, FOR EXAMPLE, DAVID GORE, WHO HAD GOTTEN A DEATH WARRANT, THEN A RESENTENCING AND GOVERNOR'S OFFICE RELIED ON THE PRIOR CLEMENCY PROCEEDING. >> WELL, BUT THE POINT IS THIS, IT SEEMS TO ME. IS THERE ANYTHING IN THE CONSTITUTION THAT PRECLUDES THE GOVERNOR FROM REOPENING CLEMENCY AND CONSIDERING IT AGAIN? >> NO. >> WELL, OKAY. THAT SEEMS TO BE, TO ESTABLISH THE POINT THAT THE GOVERNOR IS IN CONTROL OF THIS PROCESS BECAUSE IF HE WANTS TO REOPEN CLEMENCY, HE REOPENS CLEMENCY. >> BUT THERE, THIS COURT HAS RECOGNIZED THE CLEMENCY POWER IS DIFFERENT THAN THE WARRANT-SIGNING POWER. IT IS THE WARRANT-SIGNING POWER THE STATUTE LIKES WANTS TO TAKE AWAY. I SAVE THE REST OF MY TIME FOR REBUTTAL. >> GOOD MORNING, YOUR HONOR, MAY IT PLEASE THE COURT. I'M CAROL DITTMAR FROM THE ATTORNEY GENERAL'S OFFICE REPRESENTING THE RESPONDENT IN THIS CASE. >> I WANT TO HAVE THIS AS SORT OF SET UP. IT SEEMS TO ME, AND THIS IS REALLY JUST MORE OF A COMMENTARY ON WHAT THE LEGISLATURE WANTED TO DO. BY PUTTING THIS LIST WHERE IT JUST SAYS HAVE THEY COMPLETED THEIR FIRST POST-CONVICTION AND NOT ASKING THE COURT TO STAY WHETHER THERE IS STILL ONGOING POST-CONVICTION LITIGATION IT IS PUTTING MORE DEFENDANTS ON THE LIST THAN REALLY WOULD BE READY FOR A WARRANT TO BE SIGNED. SO THE ONLY FAIL-SAFE REALLY IS THAT IF THIS STATUTE IS INTERPRETED SO THAT THE GOVERNOR DOES CONTROL WHEN, STILL WHEN THE WARRANT'S SIGNED BY DECIDING I'M NOT SIGNING A WARRANT UNTIL I DECIDE THAT CLEMENCY IS COMPLETED, AND SOMEONE IN THE GOVERNOR'S OFFICE IS SAYING, WELL, I KNOW, FOR EXAMPLE, LIKE SAY MR. SWAFFORD, I KNOW THERE'S ONGOING LITIGATION, SO I'M NOT GOING TO DO CLEMENCY ON HIM BUT THERE IS A LITTLE BIT OF, WELL, WE'RE CERTIFYING SOMETHING THAT IS INCOMPLETE BECAUSE THAT'S WHAT THE LEGISLATURE ASKED AND WE DON'T KNOW WHAT PROCEDURES THE GOVERNOR IS TAKING BUT WE KNOW THAT 140 WARRANTS WEREN'T SIGNED AFTER OUR OCTOBER LIST AND THE AG, I WOULD IMAGINE, WOULD BE IN A GREAT DEAL OF TROUBLE IF THE GOVERNOR HAD SIGNED 100 WARRANTS AT ONE TIME. SO HOW DOES THIS IN PRACTICAL TERMS, AND MAYBE THAT IS NOT THE CONSTITUTIONAL ISSUE BUT I THINK WE WANT TO MAKE SURE THAT THE LEGISLATURE PASSED A LAW THAT REALLY DOES FURTHER THE ADMINISTRATION OF JUSTICE, HOW DOES THAT WORK WITH CLEMENCY? DOES THE GOVERNOR JUST GET TO DECIDE IF CLEMENCY CAN STAY OPEN UNTIL HE IS READY TO SIGN A WARRANT? >> THAT'S MY UNDERSTANDING OF THE WAY CLEMENCY WORKS. IT IS COMPLETELY SUBJECT TO THE GOVERNOR'S DISCRETION -- >> SO THEN REALLY HAPPENED, SO THEN NOTHING HAS CHANGED. THIS SOUNDS GOOD AND WE'RE HAVING THIS SCURRY TO PUT A LIST TOGETHER BUT IT IS STILL UP TO THE GOVERNOR TO DECIDE WHEN AND IF HE IS GOING TO SIGN A WARRANT? >> IT IS. IT IS STILL UP TO THE GOVERNOR AND THE STATUTE MAKE THAT IS CLEAR. THE STATUTE ALSO SAYS THAT EVEN IF THERE IS SOMEBODY THAT IS NOT ON THE LIST, THE GOVERNOR CAN STILL SIGN A WARRANT ON THAT PERSON. SO IT REALLY IS, I THINK THE LIST IS JUST TO PROVIDE FOR INFORMATIONAL PURPOSES, TO THE GOVERNOR, TO LET, TO LET HIM KNOW WHAT THE STATUS OF THESE CASES ARE. >> ARE YOU TELLING ME THAT BEFORE THIS, THAT THE ATTORNEY GENERAL WASN'T ADVISING THE GOVERNOR OR THE GOVERNOR'S COUNSEL WASN'T AWARE OF WHAT THE STATUS OF THE CASES WERE? >> I'M SURE THE GOVERNOR'S, I ASSUME THE GOVERNOR'S COUNSEL LOOKED INTO THE STATUS OF CASES BEFORE THE WARRANT WAS SIGNED. I DON'T HAVE -- FORMAL PROCEDURES WHERE THIS INFORMATION WAS PROVIDED. >> IT IS NOT EVEN, WE'RE NOT REQUIRED TO GIVE A CASE NUMBER. AGAIN, AND IT DOESN'T, MR. SWAFFORD IS A GOOD EXAMPLE. IT DOESN'T SAY THAT THAT CASE WAS ON APPEAL TO THIS, TO THIS COURT ON A ISSUE OF A NEW TRIAL. >> WELL, AGAIN, I THINK THE IDEA IS JUST TO NARROW FOR THE GOVERNOR, OKAY, IF HE IS INTERESTED IN SIGNING A WARRANT RATHER THAN LOOKING AT 400 PEOPLE ON DEATH ROW, HE WANTS TO FOCUS ON PEOPLE WHO HAVE BEEN THROUGH THE INITIAL PROCESS AND HAD THEIR INITIAL POST-CONVICTION ROUND OF APPEALS AND BEEN TO FEDERAL COURT AS A STARTING POINT. I DON'T THINK THIS IS THE END ALL TO THE GOVERNOR, OBVIOUSLY HE DOESN'T JUST GET THE LIST AND SIGN EVERYBODY ON THE LIST. I THINK THAT ACTUALLY COMES DOWN TO A THRESHOLD QUESTION THAT THIS COURT HAS TO ADDRESS AND THAT'S YOUR JURISDICTION TO HEAR THIS POSITION. WHEN YOU ISSUED YOUR OPINION IN ALLEN v. BUTTERWORTH, YOU FOUND YOU HAD JURISDICTION OVER THAT AS A MANDAMUS POSITION, BECAUSE IT AFFECTED SO MANY CASES PENDING ALL OVER THE STATE AND IN THIS COURT AND EVERY COURT AT EVERY LEVEL IN THE STATE BY ENACTING SPECIFIC TIME FRAMES AND GETTING INTO THE JUDICIAL PROCEEDINGS. HERE WE'RE TALKING ABOUT THE GOVERNOR SIGNING A WARRANT. THAT IS NOT A JUDICIAL PROCEEDING. THE GOVERNOR MAKING THAT DETERMINATION IS NOT A JUDICIAL PROCEEDING. THAT IS PART OF THE REASON WHY THIS COURT REALLY DOESN'T HAVE THE RULE MAKING BECAUSE IT IS NOT A JUDICIAL FUNCTION THAT IS BEING DONE. IT IS AN EXECUTIVE FUNCTION TO SIGN A WARRANT AND THAT IS WHAT THIS IS GOING TO. >> THERE ARE OTHER PARTS WE HAVEN'T YET DISCUSSED. >> SURELY. >> FOR EXAMPLE, THIS POSITION OF, I MEAN THE LEGISLATION THAT SAYS IF YOU HAVE BEEN FOUND TO RENDER INEFFECTIVE ASSISTANCE OF COUNSEL IN THREE CASES THAT YOU CAN NO LONGER REPRESENT, HOW CAN THAT BE CONSTITUTIONAL AS TO THE PUBLIC DEFENDER'S OFFICE WHO WOULD BE, HAS A SEPARATE CONSTITUTIONAL OFFICER? WHAT IS THE ARGUMENT? >> QUALIFICATIONS FOR PEOPLE WHO ARE QUALIFIED TO HANDLE CAPITAL CASES AND THAT'S SOMETHING THAT THIS COURT HAS DONE AND THIS COURT RECOGNIZE THE LEGISLATURE'S AUTHORITY TO SET UP A SYSTEM AND DETERMINE THE QUALIFICATIONS OF REPRESENTATION FOR DEFENDANTS AND IT IS PART OF THAT. GETTING BACK TO THE QUESTION OF JURISDICTION THIS COURT SAID IN ALLEN, WELL, WE HAVE JURISDICTION BECAUSE THERE IS A SEVERE ADVERSE IMPACT ON THE FUNCTIONING OF GOVERNMENT WITHOUT AN IMMEDIATE RESOLUTION OF THESE ISSUES. >> YOU WANT THIS CASE TO START OUT IN THE TRIAL COURT? >> I THINK THAT IS WHERE IT SHOULD BE AS ANY CONSTITUTIONAL CHALLENGE TO A NEW STATUTE SHOULD BE TYPICALLY BROUGHT IN A TRIAL COURT AND WORK ITS WAY UP TO THIS COURT FOR APPELLATE REVIEW RATHER THAN BE AN EXTRAORDINARY WRIT. IF THIS COURT WANTS TO CHANGE THE STANDARD FOR ITS JURISDICTION, THEN CERTAINLY THIS COURT, YOU CAN DO THAT BUT NEED TO MAKE CLEAR SO THAT WE HAVE SOME GUIDANCE AS TO WHAT YOUR JURISDICTIONAL BASIS IS. >> IF IN FACT WE SAID, OKAY, THIS CASE NEEDS TO GO TO THE TRIAL COURT, WHAT WOULD HAPPEN IN THE TRIAL COURT? WHAT WOULD BE PRESENTED IN THE TRIAL COURT? >> ANYBODY WHO IS BEING PROSECUTED FOR A CAPITAL CASE COULD FILE A PRETRIAL MOTION TO DECLARE THIS PROVISION, TO DECLARE THE STATUTE UNCONSTITUTIONAL. THE TRIAL JUDGE MAKES A RULING ON THAT. WHEN, IF YOU ASSUME THAT PERSON ULTIMATELY ENDS UP WITH A DEATH SENTENCE AND CASE ENDS UP BEFORE THIS COURT THAT CAN BE AN ISSUE THAT CAN BE RAISED ON APPEAL. >> BUT THIS IS THE ONLY COURT THAT HAS -- THIS IS AFFECTING WHEN WARRANTS ARE SIGNED WHICH GOES DIRECTLY TO THE COURT. >> I DON'T KNOW IT REALLY HAS AFFECTED WHEN WARRANTS ARE SIGNED THOUGH AND THAT'S KEY. YOU TALK ABOUT IN THE PETITION THERE IS THIS PARADE OF HORRIBLES THERE WILL BE 100 PETITIONS SIGNED AND COMPLETE END TO SUCCESSIVE LITIGATION. IT WILL BE COMPLETELY PROHIBITED AND WEE HAVE BOTCHED EXCUSES BECAUSE THERE IS NOT ANY WAY TO LITIGATE PROCEDURALLY THE METHOD OF EXECUTION AFTER A WARRANT HAS BEEN SIGNED. NONE OF THOSE PARADE OF HORRIBLES IS HAPPENING OR HAS HAPPENED. THIS PETITION WAS FILED SEVEN MONTHS AGO AND WE HAVEN'T SEEN ANYTHING COME TO PASS. IF SOMETHING HAPPENED THAT WAS CAUSING SOME ADVERSE IMPACT ON THE FUNCTION OF GOVERNMENT THAT WOULD GIVE THIS COURT CAUSE TO LOOK AT THESE STATUTE AND TO MAKE THIS BASICALLY AN ADVISORY OPINION AS TO WHETHER OR NOT IT IS CONSTITUTIONAL. IF YOU HAD IN MOHAMMED, THE ISSUE WAS RAISED AND COURT DECLINED TO ANSWER THE QUESTION AND SAID THERE'S NO, THERE'S NO SHOWING HERE THAT A MOHAMMED WARRANT WAS ACTUALLY SIGNED BECAUSE OF TIMELY JUSTICE ACT. EVERY DEFENDANT WILL BE UNDER THE ASSUMPTION THAT COMES UNDER A WARRANT. THEY WILL NOT BE ABLE TO POINT ANYTHING BECAUSE THE TIMELY JUSTICE ACT DOESN'T REQUIRE ANYTHING WITH REGARD TO ANY PARTICULAR DEFENDANT. SO IT IS SOMETHING THAT DOES NOT MEET THE STANDARD THE COURT HAS SET FOR ITS OWN JURISDICTION FOR TAKING JURISDICTION TO RULE ON THE CONSTITUTIONALITY OF A STATUTE BECAUSE NONE OF THOSE THINGS HAD HAPPENED. WHEN THE APPEAL WAS FILED IN THE ALLEN v. BUTTERWORTH CASE, IT WAS RESOLVED IN LESS THAN THREE MONTHS. THIS PETITION IS PENDING TWICE AS LONG WITHOUT US SEEING ANY OF THESE ADVERSE EFFECTS THAT ARE ALLEGED TO OCCUR I THINK WEIGHS AGAINST THIS COURT FINDING THAT YOU EVEN HAVE JURISDICTION TO ENTERTAIN THIS PETITION. >> WELL, RATHER THAN PUT ALL YOUR EGGS IN THAT BASKET, THE MAJORITY ALREADY VOTED TO HEAR THE CASE BUT WOULD YOU ADDRESS THE LEGISLATURE STEPPING IN AND MAKING A DECISION AS TO HOW A CONFLICT IS DEFINED WHERE THE COURT VERY CLEARLY HAS ESTABLISHED THE BASIS AND THE STANDARDS FOR CONFLICT OF INTEREST AND, WOULD YOU ADDRESS THAT? WHY THAT THE LEGISLATURE, THIS IS A LITTLE DIFFERENT THAN THE TWO INEFFECTIVE ASSISTANCE INCIDENTS WHERE RELIEF HAS BEEN GRANTED. THIS IS ONE THAT DEFINES WHEN A LAWYER CAN OR CAN NOT OPERATE IN COURT, RIGHT? >> YES, THAT IS SOMETHING, OF COURSE THIS COURT LOOKED AT A VERY SIMILAR PROVISION WITH THE OFFICE OF CONFLICT COUNSEL OFFICE AND WHEN YOU UPHELD THAT STATUTE IN THE PUBLIC DEFENDER CASE, IN THE CRIST CASE, YOU SAID THAT THAT'S NOT A PROBLEM. THE TRIAL COURT THERE DOES MAKE A FINDING ABOUT A CONFLICT OF INTEREST. WHEN THIS COURT HAS TALKED ABOUT CONFLICT OF INTEREST IN THE PAST, WHEN CCRCs TRIED TO WITHDRAW AND ALL THEY HAD TO DO WAS CITE IS A CONFLICT OF INTEREST, THAT IS WHAT THE STATUTE REQUIRED AT THE TIME. THIS COURT'S POLICY AND THIS COURT'S DETERMINATION THAT ALL THEY HAD TO DO WAS SAY, WE HAVE A CONFLICT AND THEY'RE OFF THE CASE, THAT CAME STRAIGHT OUT OF WHAT THE STATUTE REQUIRED WAS ALL THEY HAD TO DO WAS IDENTIFY THERE WAS A CONFLICT. NOW THE STATUTE REQUIRES REQUIRES THEM TO SPECIFY WHAT THE CONFLICT IS AND THE TRIAL COURT MAKE THE DETERMINATION -- >> TOTALLY CHANGES THE STANDARD. WHICH HAD A STANDARD -- DO YOU AGREE THAT THE COURT, THE JUDICIAL BRANCH HAD ESTABLISHED STANDARDS FOR CONFLICT IN CRIMINAL CASES FOR INDIVIDUALS OR FOR PUBLIC DEFENDERS? >> WELL, WHEN YOU'RE TALKING ABOUT JUST CONFLICT, GENERALLY? >> CONFLICT TO REPRESENT AN INDIVIDUAL. IT DID NOT HAVE TO BE AN ACTUAL CONFLICT AS IT IS DESCRIBED NOW. >> WELL I THINK THAT'S, I MEAN IF IT IS A, AGAIN YOU COME BACK TO THIS, THE STATE HAS, THE LEGISLATURE HAS THE RIGHT TO CREATE A SYSTEM OF REPRESENTATION AND WHAT THIS COURT HAS SAID IN THE PAST, LOOKING AT THE CONFLICT COUNSEL CASES IS THAT PART OF THAT DETERMINATION MAY BE DETERMINING WHEN STATE DOLLARS SHOULD BE SPENT, ALLOCATED, BASED ON WHETHER OR NOT THERE'S A CONFLICT OF INTEREST THAT PRECLUDES REPRESENTATION. WHAT THIS COURT SAID, IT IS OKAY TO HAVE A TRIAL COURT MAKE THAT DETERMINATION AS TO WHETHER OR NOT A CONFLICT EXISTS. SO I DON'T SEE ANY DIFFERENCE HERE WHEN YOU'RE TALKING ABOUT A CONFLICT OF INTEREST. I THINK IT IS SOMETHING THAT THE LEGISLATURE CAN DETERMINE. >> HOW ABOUT THE CONSTITUTIONAL POWER OF THE PUBLIC DEFENDER WITH REGARD TO 27.7045? AND THE PROVISION AFTER A LAWYER HAS SUFFERED TWO INEFFECTIVE ASSISTANCE OF COUNSEL LOSSES, AND THE DEFENDANT HAS BEEN GRANTED RELIEF THAT THAT LAWYER IS DISQUALIFIED FOR FIVE YEARS FROM REPRESENTING ANYONE FURTHER? >> WELL AGAIN I THINK THAT'S JUST COMING UP WITH A QUALIFICATION THAT MAKES SOMEONE QUALIFIED TO REPRESENT CAPITAL DEFENDANTS. >> BUT DO WE, WE HAVE A CONSTITUTIONAL PROVISION FOR THE QUALIFICATIONS FOR PUBLIC DEFENDER, CORRECT? >> CERTAINLY AND IT IS NOT SAYING THAT THAT PERSON CAN NOT OPERATE AS THE ELECTED PUBLIC DEFENDER. IT IS NOT PROHIBITING THEM FROM BEING THE PUBLIC DEFENDER. >> PROHIBITING, IT IS PROHIBITING THEM FROM BEING A PUBLIC DEFENDER IN THIS CASE. >> WELL I THINK THEY CAN DELEGATE TO THEIR ASSISTANTS TO DO THE REPRESENTATION. >> I MEAN THEY'RE NOT EVEN GOING TO BE ABLE TO DO THAT BECAUSE IT IS SAYING THAT THE PUBLIC DEFENDER, OR ASSISTANT PUBLIC DEFENDER, CAN NOT UNDERTAKE REPRESENTATION. AS I READ THAT STATUTE, THAT IS WHAT IT IS SAYING. >> I THINK THE STATUTE TO SAY MORE OF A DIRECT REPRESENTATION AS TO WHO THE ACTUAL PERSON WAS REPRESENTING AND NOT JUST THE ELECTED PUBLIC DEFENDER. >> AND SO THEN YOU CAN DO THAT WITH THOSE APPOINTED UNDER THE CONSTITUTIONAL OFFICER BUT COULD NOT DO IT WITH THE CONSTITUTIONAL OFFICER, IS THAT THE ARGUMENT? >> WELL, I, I DON'T KNOW THAT YOU'RE STILL PRECLUDING, I STILL DON'T UNDERSTAND WHY SOMEONE WHO IS AN ASSISTANT IN THE PUBLIC DEFENDER'S OFFICE CAN STILL REPRESENT THE PERSON. I DON'T KNOW -- >> BECAUSE THE STATUTE SAYS IF YOU HAVE BEEN, IF YOU HAVE BEEN INVOLVED IN THE CASES, AND IT HAS BEEN DETERMINED ON TWO OCCASIONS THAT YOU HAVE BEEN INEFFECTIVE IN YOUR REPRESENTATION, AND THE DEFENDANT THAT YOU REPRESENTED IN EACH OF THOSE CASES IS GRANTED RELIEF, THAT YOU THEN BECOME DISQUALIFIED FOR FIVE YEARS. >> RIGHT. BUT I DON'T KNOW WHY, A PUBLIC DEFENDER OBVIOUSLY DOES MANY THINGS BESIDES CAPITAL CASES. >> I UNDERSTAND. >> WHEN THEY DESIGNATE A ASSISTANT PUBLIC DEFENDER TO REPRESENT THE DEFENDANT I THINK THAT'S THE PERSON THAT THEY'RE INTERESTED IN MAKING SURE HASN'T BEEN DISQUALIFIED. >> SO WHAT YOU'RE SAYING, I'M TRYING TO MAKE SURE I UNDERSTAND THE STATE'S ARGUMENT. >> SURE. >> THAT ASSISTANT PUBLIC DEFENDERS ARE NOT PROTECTED UNDER THAT CONSTITUTIONAL PROVISION OF QUALIFICATIONS FOR PUBLIC DEFENDERS AND THAT BEING A CONSTITUTIONAL OFFICE WITHIN THE POWER OF THE PUBLIC DEFENDER? THAT'S WHAT YOU'RE SAYING, THAT THE ASSISTANTS DO NOT PARTAKE OF THAT SAME STATURE EVEN THOUGH THEY'RE APPOINTED AS A PUBLIC DEFENDER, THAT IS YOUR ARGUMENT? >> THE PUBLIC DEFENDER IS DIFFERENT THAN THE PEOPLE HE APPOINTS TO REPRESENT. >> A PUBLIC DEFENDER CAN NOT BE DISQUALIFIED UNDER THIS? THE ELECTED PUBLIC DEFENDER, SHOULD HE OR SHE DECIDE TO GET INVOLVED AND TRY SOME OF THESE CASES AND HAVE TWO ADVERSE SITUATIONS, HE OR SHE COULD NOT BE DISQUALIFIED BUT ALL THE ASSISTANTS THAT FOLLOW IN THAT CATEGORY COULD BE? THAT WOULD BE YOUR ARGUMENT? >> I AM SPECULATING BUT YES, I, I MEAN -- >> I'M TRYING TO UNDERSTAND. EITHER THE ASSISTANTS PARTAKE OF THE SAME PROTECTION AS THE ELECTED PUBLIC DEFENDER BY VIRTUE OF THEIR APPOINTMENT, OR THEY DO NOT. AND THAT IS WHAT I'M TRYING TO GET WHAT THE STATE'S POSITION IS. >> I THINK THE STATE'S POSITION IS THIS IS TALKING ABOUT THE PERSON THAT ACTUALLY REPRESENTS -- >> NO, I UNDERSTAND THAT I AGREE THAT'S WHAT IT IS TALKING ABOUT. >> THE PUBLIC DEFENDER ACTUALLY REPRESENTED DEFENDANTS AND TWICE BEEN FOUND INEFFECTIVE, I'M SURPRISED HE IS BEING ELECTED AS PUBLIC DEFENDER. >> THAT IS NOT THE ISSUE HERE. THE ISSUE IS HOW THIS OPERATES. >> I WOULD SAY HE IS STILL DISQUALIFIED. IF THAT CREATES SOME SORT OF ISSUE WITH THE CONSTITUTIONAL AUTHORITY, THEN I DON'T KNOW THAT THAT IS STILL FINDS THE STATUTE IS INVALID BECAUSE AS THIS COURT HAS SAID WHEN YOU HAVE A SITUATION WHERE THERE'S, IT IS THEORETICAL AS APPLIED TYPE OF CONSTITUTIONAL ISSUE, FOR EXAMPLE, THE STATUTORY FEES. YOU CAN HAVE STATUTORY CAPS ON FEES AND THOSE ARE NOT UNCONSTITUTIONAL BUT WITH THEIR UNCONSTITUTIONALLY APPLIED IN A PARTICULAR CASE THE TRIAL COURT HAS AUTHORITY TO EXCEED THE STATUTORY CAP. I THINK IT WOULD BE A SIMILAR THING WITH THIS TYPE OF PROVISION THAT IF THERE IS AN AS APPLIED CHALLENGE THAT COULD BE MADE, I THINK THE TRIAL COURTS CAN ENTERTAIN THAT WITHOUT FINDING THAT THE STATUTE ITSELF IS FACIALLY UNCONSTITUTIONAL. >> I WANT TO GO BACK TO THE ACTUAL, THE LANGUAGE ON THE ACTUAL CONFLICT AND MAYBE THIS IS FOR AN AS APPLIED CHALLENGE. BUT IT SAYS IT HAS TO BE A ACTUAL CONFLICT OF INTEREST IS DEFINED WHEN AN ATTORNEY IS ACTIVELY REPRESENTING CONFLICTS INTERESTS. WELL, THE OTHER STATUTE THAT WE APPROVED OF USES ADVERSE, IT USES DIFFERENT LANGUAGE. THE IDEA THAT YOU HAD REPRESENTED A CODEFENDANT IN THE PAST AND NOW YOU'RE BEING ASKED TO REPRESENT THE OTHER DEFENDANT, WELL YOU MAY NOT BE ACTIVELY REPRESENTING THAT CODEFENDANT BUT THAT IS AS GREAT A CONFLICT OF INTEREST. SO IS THERE A PROBLEM WITH THE LANGUAGE THAT THE LEGISLATURE USED FOR SAYING, DEFINING AN ACTUAL CONFLICT? AND IF THERE IS WOULD THAT BE SOMETHING, NOT A CONSTITUTIONAL ISSUE BUT ONE RAISED IN A PARTICULAR CASE? >> I DON'T KNOW THAT THERE IS STILL A PROBLEM WITH IT. I THAT THERE IS A LOT OF CASE LAW DEFINING ACTUAL CONFLICT OF INTEREST. >> NO, BUT THEY DEFINE IT. >> I THINK THE ACTIVE REPRESENTATION IS WHAT MAKES THIS DIFFERENT AS OPPOSING TO HAVING CONFLICTS -- >> I WOULDN'T THINK ANYBODY, ANYBODY WOULD SAY THAT IF THERE HAD BEEN CONFIDENCES GIVEN BY ONE PARTY THAT COULD BE, WAS DIFFERENT OR ADVERSE, THAT THAT LAWYER SHOULD REPRESENT THE PARTICULAR DEFENDANT. I MEAN WHAT'S, AND TRYING TO FIGURE OUT WHAT THE PURPOSE OF THIS PARTICULAR STATUTE IS? >> I THINK THE PURPOSE OF THE STATUTE IS TO AVOID, TO REQUIRE THAT THERE BE A IDENTIFICATION OF THE CONFLICT BECAUSE I -- >> THAT IS NOT WHAT IT SAYS THOUGH. >> I THINK THAT IS TRYING TO HELP IT, HELP THE COURTS ASSIST WHETHER OR NOT THERE IS A CONFLICT TELLING THE ATTORNEYS WHETHER OR NOT THEY HAVE A CONFLICT. AND AGAIN IF YOU HAVE A SITUATION WHERE IT APPEARS THAT AS APPLIED THIS CAN BE UNCONSTITUTIONAL, THAT CAN BE HANDLED BY THE TRIAL COURT WITHOUT FINDING THE STATUTE TO BE FACIALLY INVALID. >> ALSO THE ONE ON THIS DISQUALIFICATION, WHAT MAKES THIS KIND OF A, WELL, THERE ARE SOME PROBLEMS WITH IT FROM A PUBLIC POLICY POINT OF VIEW, BUT, YOU SNOW, SOMEONE COULD BE COMPLETELY INCOMPETENT BUT IF IT DOESN'T RESULT IN GRANTING RELIEF BECAUSE THERE IS NO PREJUDICE, YOU KNOW, THEY'RE STILL ON THERE AND WE'VE SEEN LAWYERS, BELIEVE ME, THAT SHOULD BE REMOVED AND NOT REPRESENT, BUT THEY DO NO HARM. STILL NO RELIEF GIVEN. AGAIN WE'VE GOT A LEGISLATURE THAT IS DOING SOMETHING NOT REALLY HELPING THE SITUATION EVEN THOUGH THAT WAS THEIR MOTIVATION. >> I THINK THOSE ARE PERFECTLY VALID POLICY CONSIDERATIONS BUT I DON'T THINK THEY GET TO THE CONSTITUTIONAL ISSUES. I DON'T THINK THEY HELP THE PETITIONERS AT ALL FINDING THE STATUTE UNCONSTITUTIONAL. >> ON THE PUBLIC RECORDS PRODUCTION, ARE THERE SOME PROVISIONS THERE, I WAS CONCERNED, I DIDN'T DO A SIDE BY SIDE WITH 3.852 WHICH IS CAREFULLY CRAFTED WHERE THIS STATUTE IS INCONSISTENT WITH 3.852? >> WELL THE LANGUAGE OF THE PETITION THIS MIRRORS THIS COURT'S RULING IN 3.852. WHAT THEY HAVE IDENTIFIED THE STATUTE DOESN'T EXPLICITLY TALK ABOUT HOLDING HEARINGS WHETHER THERE HAS BEEN DEMAND OR OBJECTION OR AFTER A WARRANT HAS BEEN SIGNED BUT I THINK THE FACT THAT IS IN THIS COURT'S RULE AND THE STATUTE CERTAINLY DOESN'T PROHIBIT HAVING A HEARING OR PRECLUDE ANY KIND OF HEARINGS. I THINK WHAT -- OBVIOUSLY WE KNOW THAT IS THIS COURT'S FUNCTION. THE WHOLE PUBLIC RECORD RULE IS SOMETHING THIS COURT CAN AND SPENT A LOT OF TIME -- >> WE HAVE A STATUTE THAT DOES NOTHING AND MAY CONFLICT WITH A RULE THAT HAS MORE PROCEDURAL PROTECTIONS. >> WHAT THE STATUTE DID IS CODIFY WHAT THIS COURT CURRENTLY DOES, WHAT THE RULE CURRENTLY PROVIDE AND CODIFIES IT JUST LIKE -- I DON'T THINK THAT MAKES IT UNCONSTITUTIONAL JUST LIKE THE EVIDENCE CODE IS CODIFIED. AS LONG AS IT IS CONSISTENT WITH THIS COURT'S RULE. AND IT IS CONSISTENT WITH THIS COURT'S RULE. IT MAY NOT BE AS EXHAUSTIVE AND THOROUGH AS THIS COURT'S RULE BUT WE KNOW THIS COURT'S RULE WILL BE WHAT IS APPLIED. THE STATUTE IS HELPFUL BETTER THAN HAVING THE OLD STATUTE ON THE BOOKS TALKING ABOUT PUBLIC RECORDS IN A WAY THAT DOESN'T EVEN HAPPEN. I WOULD PREFER THE LAW ACTUALLY, IF THEY'RE GOING TO TALK ABOUT PUBLIC RECORDS I WOULD PREFER THEM HAVE IT BE CONSISTENT WITH WHAT THIS COURT SAYS NEEDS TO HAPPEN WITH THE RULES. WHAT THEY HAVE DONE BASICALLY IS ADOPTED THIS COURT'S RULE. I DON'T THINK THAT IN ITSELF IS AN UNCONSTITUTIONAL ACT. IF IT IS THERE HAS NOT BEEN SHOWN TO HAVE BEEN ANY HARM OR PREJUDICE TO THE DEFENSE AND THERE'S NO HARM OR PREJUDICE REALLY WITH ANY OF THE PROVISIONS WITH THE TIMELY JUSTICE ACT THAT HAVE BEEN IDENTIFIED AS HAVING ANY PREJUDICIAL EFFECT. >> YOU'RE OUT OF TIME. >> THANK YOU VERY MUCH, YOUR HONOR. I WOULD ASK YOU TO DENY THE PETITION. >> ADDRESS THE COURT BRIEFLY. IT SEEMS THAT THE ARGUMENT BEING MADE THAT THE TIMELY JUSTICE ACT WAS ALL FOR SHOW AND DIDN'T ACTUALLY CHANGE ANYTHING. CERTAINLY THAT WAS NOT WHAT WAS EXPRESSED BY THE LEGISLATURE AT THE TIME. THEY MEANT TO MAKE CHANGES. IF IN ORDER TO SAVE THE STATUTE THAT'S WHAT, THE COURT NEEDS TO FIND, THAT IT REALLY DIDN'T CHANGE ANYTHING, I WOULD WELCOME THAT. AT ONE POINT -- >> WELL IT CERTAINLY FOCUSED AS JUSTICE PARIENTE POINTED OUT, THE LIST OF DEFENDANTS ON DEATH ROW WHERE THEY HAVE GONE THROUGH BOTH STATE AND FEDERAL PROCESS BUT NOTHING'S BEEN DONE SO FAR AS A WARRANT BEING SIGNED. >> EXCEPT THE LIST DOESN'T ACTUALLY REFLECT THAT MANY OF THE PEOPLE ON THE LIST ACTUALLY HAVE LITIGATION PENDING. MR. SWAFFORD FOR EXAMPLE. >> COULD WE ADOPT BY ADMINISTRATIVE ORDER SOMETHING THAT ADDS TO THE LIST? GIVES MORE INFORMATION AND ALLOWS THE, THOSE THAT MIGHT BE REPRESENTING THOSE AND THE AG A CHANCE TO SAY, HEY, THAT PERSON SHOULDN'T BE ON THE LIST TO MAKE IT ACCURATE. WOULD THAT BE BETTER? >> THE FACT THAT THE COURT COULD DO THAT SEEMS TO INDICATE IT IS PROCEDURAL. IF THE COURT WANTS TO DO THAT IT CAN DO THAT BUT IT IS PROCEDURAL. >> THERE ARE SOME THINGS THAT ARE NOT EVEN PROCEDURE OR SUBSTANCE BUT IT IS COMITY. WE HAVE AN INTEREST ON SIGNING WARRANTS ON CASES WHERE EVERYTHING IS COMPLETED. THE LEGISLATURE HAS A INTEREST IN HAVING WARRANTS SIGNED. SEEMS AS IF AS YOU SAY, IF ANYBODY IS COMPLAINING SHOULD BE THE GOVERNOR BUT THE GOVERNOR HAS THE OUT BY WHAT MISS DITTMAR HAS SAID IS THE ABILITY TO CONTROL THE CLEMENCY PROCESS. >> ONE FINAL POINT AND THAT IS CERTAINLY IF THIS COURT WANTS TO SAY, I NEED TO LITIGATE THIS ISSUE AND EACH ONE OF MY CASES, I WILL BE HAPPY TO DO THAT. THANK YOU. >> COULD I ASK JUST TO RESPOND TO THAT? >> JUSTICE LEWIS. >> WE SPENT A LOT OF TIME. THIS HAS SEVERAL PROVISIONS AND WE SPENT MOST OF THE TIME ON ONE. WHY IS THE STATE INCORRECT ON WITH REGARD TO THE ACTUAL CONFLICT ISSUE, THAT THIS IS AN APPLIED ISSUE NOT A FACIAL CONSTITUTIONAL ISSUE? >> BECAUSE THE WAY I READ IT ACTUALLY DETERMINING, IT IS THE PROCEDURE FOR DETERMINING THE CONFLICT AND THAT SHOULD BE FOR THE COURT. AND THE COURT SET THE STANDARD WHAT CONSTITUTES CONFLICT, IT IS NOT FOR THE LEGISLATURE TO DETERMINE. >> OKAY. >> THANK YOU. >> THANK YOU FOR YOUR ARGUMENTS.