Office of Attorney General Pam Bondi
Criminal Law Alert
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Date issued: 04/08/2009
Editor: Carolyn Snurkowski
Clicking the icon following the number of each case cited below will link you directly to the cited opinion. In addition, full texts of recent slip opinions are available by clicking "VIEW" at the top of your screen, then "SLIP OPINIONS." AGOs are available in the separate AGO database.
United States Supreme Court
Some voluntary confessions still out. Summary from NAAG.
Corley v. U.S., 07-10441. Decided April 6, 2009.
Under the rule established in McNabb v. United States, 318 U.S. 332 (1943) and Mallory v. United States, 354 U.S. 449 (1957), a voluntary confession is inadmissible if it is given after an unreasonable delay between arrest and presentment to a magistrate. By a 5-4 vote, the Court held that when Congress enacted 18 U.S.C. § 3501, it intended merely to limit the application of McNabb-Mallory, not to abrogate the rule entirely. Although 18 U.S.C. § 3501(a) appears to make all voluntary confessions admissible, and § 3501(b) identifies the factors that a judge should consider in determining voluntariness, the Court held that to read these sections as eliminating the McNabb-Mallory rule would make § 3501(c), which provides that a confession given within six hours of arrest will not be inadmissible solely because of a delay in presentment, superfluous. The majority found support for its reading in the legislative history and noted that adopting the government’s view would leave the Federal Rule of Criminal Procedure 5 presentment requirement “without any teeth.”
Decision:
What does Miranda require? Summary by Lyle Denniston / SCOTUS.
Florida v. Powell, 08-1175. Order issued April 2, 2009.
If police have a suspect in custody, and tell him that he has a right to talk to a lawyer before being questioned, is that enough to satisfy the right-to-counsel warning that is required by Miranda v. Arizona (1966)? It is an issue that has long split the lower courts, and it is one that some members of the Supreme Court have been leaning toward hearing. Now, a new case that could test the issue has reached the Court, and Justice Clarence Thomas and some of his colleagues have given at least a tentative sign that it may be reviewed.
The Florida Supreme Court, in a decision last September, ruled that it is not enough merely to tell a suspect that his right to a lawyer applies before he is asked any questions by police. Rather, it must tell him explicitly, the state court said, that he has a right to have that lawyer with him while the questioning proceeds. The opinion is listed below.
In an order issued Thursday, Justice Thomas, as Circuit Justice for the area that includes Florida, put the state court’s ruling on hold until after the Court acts on a newly filed petition by Florida officials (Florida v. Powell, 08-1175). While the Justice did not explain the order, one of the factors a Justice considers is whether a case is likely to attract the votes of at least four Justices to hear the case and whether it has a good chance of a reversal of the lower court after the decision is reviewed. (The response to the petition is now due on April 22. The Court may act on it before the end of the current Term in late June.)
In an even stronger indication that the Court is moving closer to taking on the issue, the Justices, by a 5-4 vote on March 25, temporarily blocked another, more recent ruling by the Florida Supreme Court in a case, Florida v. Rigterink, in which the state court had applied its Powell ruling in ordering a new death penalty hearing for convicted murderer Thomas William Rigterink. The four dissenting Justices — Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens — did not explain their votes. (The state on Thursday filed its petition for review in the Rigterink case; it has not yet been assigned a docket number.)
In the background is a further factor: In May 2001, when the Court passed up a chance to review the issue in a case from a Texas state court (Bridger v. Texas, docket 00-8942), three Justices commented that a warning without reference to counsel’s presence during interrogation left out “an essential Miranda element.” The brief statement, by Justice Breyer, joined by Justices Souter and Stevens, said that “if the problem purportedly present here proves to be a recurring one, I believe that it may well warrant this Court’s attention.” (Their dissenting votes last month in the Rigterink order may cast some doubt on whether those three are ready to consider the issue, but, in fact, their votes may not be needed.)
The State of Florida, in its new appeal in the Powell case, argued that the problem Breyer cited eight years ago does in fact continue, “and there is clearly a need for a resolution from this Court to the existing division among the courts across the country.”
The petition said that four Circuit Courts have “found sufficient Miranda warnings that did not specifically advise a suspect of his right to have an attorney present during interrogation.” By contrast, it added, four other Circuit Courts “have held that a suspect is entitled to be expressly informed of the right to have an attorney present during questioning.”
The Florida state court, agreeing with the broader view of what Miranda requires, issued its ruling in the case of Kevin DeWayne Powell of Tampa. He was convicted of being a felon who had a gun, and was sentenced to ten years in prison. His guilty verdict was based on part on a confession he had given to police that a gun found in the home Powell shared with a girlfriend belonged to him.
When he was taken by Tampa police to headquarters for questioning, he was given Miranda warnings. Detectives, reading from a standard form, included this warning in their recital: “You have a right to talk to a lawyer before answering any of our questions.” Powell agreed to talk to them, and then provided the incriminating statement. He appealed his conviction, challenging the adequacy of that warning.
The Florida Supreme Court took on the issue, treating it as a matter of “great public importance.” In its ruling, that Court remarked: “In this case the warning was misleading. The warning said ‘before answering any questions.’ The ‘before questioning’ warning suggests to a reasonable person in the suspect’s shoes that he or she can only consult with an attorney before questioning; there is nothing in that statement that suggests the attorney can be present during the actual questioning.” That, it said, is a direct violation of the Supreme Court’s Miranda decision.
Order:
18 U.S.C. § 3599 provides federally funded counsel for state clemency proceedings for indigent defendants.
Harbison v. Bell, 07-8521. Decided April 1, 2009. Summary by SCOTUS.
The Court has released the opinion in Harbison v. Bell (07-8521), on federally funded counsel in state clemency proceedings. The decision, which held for the United States, is reversed in a 7-2 opinion by Justice Stevens. The Court, over two Justices’ partial dissents, ruled that a 2005 federal law providing free defense lawyers for individuals facing a possible death sentence allows such a lawyer to seek clemency for the client from state officials. Justice John Paul Stevens wrote for the majority and Justice Scalia filed a partial dissent, joined by Justice Samuel A. Alito, Jr.
Decision:
Certiorari Granted:
Perdue (Governor of Georgia) v. Kenny A., et al., 08-970. April 6, 2009.
At issue is whether a reasonable attorney’s fee award under a federal fee-shifting statute can ever be enhanced based solely on quality of performance and results obtained when these factors already are included in the lodestar calculation? The question arises in the context of a case alleging wide-ranging neglect and child abuse of children in state-supervised foster homes. After three years of litigation, the parties reached a settlement regarding a consent decree mandating many changes in the management of foster homes; but could not agree on attorneys’ fees. The District Court, praising the quality of the plaintiffs’ lawyers, awarded a lodestar fee of more than $6 million and then applied a multiplier of 1.75, bringing the award to more than $10.5 million. The Court denied review of a second question regarding whether an enhancement is ever permissible after a judge has reduced the lodestar claim for seeking payment for too many hours of work.
Florida Supreme Court
Due Process Clause does not prevent the State from prosecuting defendants based on inconsistent theories.
Byrd v. State, SC06-539. Opinion filed April 2, 2009.
Byrd, convicted of first-degree murder and sentenced to death, appealed the denial of his successive 3.851 postconviction relief motion. In one issue, Byrd argued “the State violated his constitutional right to due process under Bradshaw v. Stumpf, 545 U.S. 175 (2005), by maintaining inconsistent positions regarding whether codefendant Sullivan was a credible witness at Byrd’s trial and at Sullivan’s own subsequent violation of probation hearing.”
The record revealed that Byrd hired Ronald Sullivan and James Endress to kill his wife. All three men participated in the murder. Byrd and Endress were tried separately. Sullivan negotiated a plea agreement and testified at both trials. Sullivan, in exchange for his truthful testimony at Byrd’s trial, entered into a plea agreement by pleading guilty to second-degree murder and receiving a term of probation. Sullivan, during cross-examination at his probation violation hearing, “admitted telling a lie to police when he was first arrested regarding the murder.” The prosecutor, at trial, told the jury “Sullivan lied on that occasion because he was afraid of the consequences of a murder charge and there was no plea agreement in place.” He further argued, “that incident should not “undermine Sullivan’s credibility because once the plea deal was made, Sullivan implicated himself as well as Byrd in the murder.” The same prosecutor argued at Sullivan’s probation violation hearing and stated, “the incident showed that Sullivan would lie to protect himself and was lying at the probation hearing to avoid imposition of a life sentence for the murder.”
The Court determined the facts provided no basis for Byrd’s due-process claim. The State argued at both proceedings that Sullivan would lie to protect himself and held the claim was meritless. The Court stated that “[c]learly, Stumpf did not articulate a new rule of law, and this successive postconviction claim is therefore barred.” The Court affirmed the circuit court’s order denying Byrd’s successive postconviction relief motion finding all of Byrd’s claims either to be barred or meritless.
Assistant Attorney General Scott Browne represented the state.
[Byrd v. State, 04/02/09]
Opinion: