Filing # 21213162 Electronically Filed 12/04/2014 02:02:44 AM

RECEIVED, 12/4/2014 02:03:53, John A. Tomasino, Clerk, Supreme Court

IN THE SUPREME COURT OF FLORIDA

CASE NO. SC14-1011

JAMES DENNIS FORD ,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

ON APPEAL FROM THE CIRCUIT COURTOF THE TWENTIETH JUDICIAL CIRCUIT,

IN AND FOR CHARLOTTE COUNTY, STATE OF FLORIDA

REPLY BRIEF OF APPELLANT

MARTIN J. MCCLAIN

Florida Bar No. 0754773McClain & McDermott, P.A.Attorneys at Law141 NE 30th SheetWilton Manors , FL 33334(305) 984-8344

COUNSEL FOR APPELLANT

TABLE OF CONTENTS

Page

TABIlÉ OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . ii

. REPLY TO STATEMENT OF THE CASE AND FACTS. . . . . . . . . . . . 1

REPLY TO ARGUMENT I.. . . . . . . . . . . . . . . . . . . . . 19

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . 25

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . 26

CERTIFICATE OF FONT.. . . . . . . . . . . . . . . . . . . . . 26

1

TABLE OF AUTHORITIESPage

United States Supreme Court Cases

Atkihs v. Virginia,

. 536 U.S. 304 (2002). . . . . . . . . . . . . . . 2, 3, 4, 12

Berger v. United States,

295 U.S. 78 (1935).. . . . . . . . . . . . . . . . 9, 13, 18

t. Bobby v. Bies,

556 U.S. 825 (2009) .. . . . . . . . . . . . . . . . . 3, 5

Hall v. Florida,

134 S.Ct. 1986 (2014). . . . . . . . . . . . . . . . passim

Penry v. Lynaugh,

492 U.S. 302 (1989). . . . . . . . . . . . . . . . . . . . 3

Porter v. McCollum,

558 U.S. 30 (2009).. . . . . . . . . . . . . . . . . . . 20

Powell v. Alabama,

287 U.S. 45 (1932) . . . . . . . . . . . . . . . . 6, 10, 20

Strickland v. Washington,

466 U.S. 668 (1984). . . . . . . . . . . . . . . . . . 2, 11

Trevino v. Thaler,

133 S.Ct. 1911 (2013). . . . . . . . . . . . . . . . . . 19

U.S. Trust Co. of New York v. New Jersey,

431 U.S. 1 (1977) .. . . . . . . . . . . . . . . . . . . 14

11

Federal Circuit Court Cases

Agan v. Singletary,

12 F.3d 1012 (11° Cir. 1994). . . . . . . . . . . . . . 21

Banks v. Sec'y Fla. Dep't of Corrs.,

2014 WL 5870477, at *5 (11© Cir. Nov. 13, 2014). . . . . 19

Cooper v. Sec'y Dep't pf Corrs.,

646 F.3d 1328 (11 Cir. 2011). . . . . . . . . . . . . . 20

Johnson v. Sec'y Dep't of Corrs.,

643 F.3d 907 (11° Cir. 2011). . . . . . . . . . . . . . 20

Lugo v. Sec'y Fla. Dep't of Corrs.,

750 F.3d 1198 (11° Cir. 2014) . . . . . . . . . . . . . 25

Florida Supreme Court Cases

Abdool v. Bondi,

141 So.3d 529 (Fla. 2014). . . . . . . . . . . . . . 23, 25

Chiles v. United Faculty of Florida,

615 So. 2d 671 (Fla. 1993).. . . . . . . . . . . . . . . 14

Coleman v. State,

64 So.3d 1210 (Fla. 2011). . . . . . . . . . . . . . . . 20

Dale v. Jennings,

107 So. 175 (Fla. 1925) .. . . . . . . . . . . . . . . . 24

Deaton v. Dugger,

635 So.2d 4 (Fla. 1993). . . . . . . . . . . . . . . . . 21

111

Ferrell v. State,

. 29 So.3d 959 (Fla. 2010).. . . . . . . . . . . . . . . . 20

Floydcv. State,

808 So.2d 175 (Fla. 2002). . . . . . . . . . . . . . . . . 2

�042 Floyd v. State,

902 So.2d 775 (Fla. 2005). . . . . . . . . . . . . . . . 21

Ford v. State,

Case No. SC13-1674.. . . . . . . . . . . . . . . . . . . 16

Garcia v. State,

622 So.2d 1325 (Fla. 1993).. . . . . . . . . . . . . . . 21

Gaskin v. State,

737 So.2d 509 (Fla. 1999). . . . . . . . . . . . . . . . . 1

Hoffman v. State,

800 So.2d 174 (Fla. 2001). . . . . . . . . . . . . . . . 21

Hudson v. State,

614 So.2d 482 (Fla. 1993). . . . . . . . . . . . . . . . 21

Lightbourne v. Duqqer,

549 So.2d 1364 (Fla. 1989).. . . . . . . . . . . . . . 1, 2

Maharai v. State,

778 So.2d 944 (Fla. 2000). . . . . . . . . . . . . . . . 20

Mason v. State,

597 So.2d (Fla. 1992). . . . . . . . . . . . . . . . . . 21

Mitchell v. State,

595 So.2d 938 (Fla. 1992). . . . . . . . . . . . . . . . 21

Iv

Mordenti v. State,

894 So.2d 161 (Fla. 2004). . . . . . . . . . . . . . . . 21

Mungin v. State,

79 So.3d 726 (Fla. 2011).. . . . . . . . . . . . . . . . . 2

Occhicone v. State, -

. 768 So.2d 1037 (Fla. 2000).. . . . . . . . . . . . . . . . 1

Peede v. State,

748 So.2d 253 (Fla. 1999). . . . . . . . . . . . . . . . . 1

Porter v. State,

723 So.2d 191 (Fla. 1998). . . . . . . . . . . . . . . . 21

Ragsdale v. State,

798 So.2d 713 (Fla. 2001). . . . . . . . . . . . . . . . 20

Riechmann v. State,

777 So.2d 342 (Fla. 2000). . . . . . . . . . . . . . . . 20

Rivera v. State,

995 So. 2d 191 (Fla. 2008).. . . . . . . . . . . . . . . . 2

Roberts v. State,

678 So.2d 1232 (Fla. 1996).. . . . . . . . . . . . . . . . 1

Robinson v. State,

95 So.3d 171 (Fla. 2012).. . . . . . . . . . . . . . . . 20

Rogers v. State,

782 So.2d 373 (Fla. 2001). . . . . . . . . . . . . . . . 21

Roman v. State,

528 So.2d 1169 (Fla. 1988. . . . . . . . . . . . . . . . 21)

v

Scott v. Duqqer,

604 So.2d 465 (Fla. 1992). . . . . . . . . . . . . . . . 21

Scott v. State,

652 So.2d 1129 (Fla. 1995).. . . . . . . . . . . . . . . . 1

State v. Holton,

835 So.2d 269 (Fla. 2002). . . . . . . . . . . . . . . . 21

State v. Mills,

788 So.2d 249 (Fla. 2001). . . . . . . . . . . . . . . . 20

Swafford v. State,

125 So.3d 760 (Fla. 2013). . . . . . . . . . . . . . . . 21

Thompson v. State,

731 So.2d 1235 (Fla. 1999).. . . . . . . . . . . . . . . 21

Torres-Arboleda v. Duqqer,

636 So.2d 1321 (Fla. 1994).. . . . . . . . . . . . . . . 21

Williams v. State,

987 So.2d 1 (Fla. 2008). . . . . . . . . . . . . . . . . 20

Young v. State,

. 739 So.2d 553 (Fla. 1999). . . . . . . . . . . . . . . . 21

Other Authorities

www.deathpenaltyinfo.org. . . . . . . . . . . . . . . . . . . 20

www.themarshallproject.org. . . . . . . . . . . . . . . . . . 24

V1

REPLY TO STATEMENT OF THE CASE AND FACTS

The Answer Brief's Statement of the Case and Facts is an

exerdise in obfuscation. No where in it does the State accept

that in an appeal from the summary denial of a Rule 3.851 motion,

the facts alleged in the motion are accepted as true. But, the

law is clear that the factual allegations contained in the

successive Rule 3.851 motion at issue in this appeal must be

accepted as true in deciding whether the claims in the motion

warrant evidentiary development. Where as here, the Rule 3.851

motion was denied without an evidentiary hearing, the issue on

appeal is whether accepting the factual allegations as true the

movant has shown a basis for relief. If so, an evidentiary

hearing is required in order to give the movant an opportunity to

prove his factual allegations. Peede v. State, 748 So.2d 253

(Fla. 1999); Gaskin v. State, 737 So.2d 509 (Fla. 1999); Roberts

v. State, 678 So.2d 1232 (Fla. 1996); Scott v. State, 652 So.2d

. 1129 (Fla. 1995). Thus, the most relevant facts are those alleged

in the Rule 3.851 motion which this Court is required to accept

as true.¹ Yet, the State chooses to run from and not address the

Factual allegations in the motion to vacate must beaccepted as true:

Upon review of a trial's court summary denial ofpostconviction relief without an evidentiary hearing,this Court must accept a defendant's factualallegations as true to the extent they are not refutedby the record. See Occhicone v. State, 768 So.2d 1037,1041 (Fla. 2000); Gaskin, 737 So.2d at 516; Lightbourne

1

factual allegations made in the Rule 3.851 motion. Mr. Ford's

factual allegations must be accepted as true nonetheless.2

. In the Statement of the Case and Facts, the State does

briefly discuss Mr. Ford's 1999 trial. Absent from the discussion

and the entirety of Answer Brief is any citation to Atkins v.

|- v. Duqqer, 549 So.2d 1364, 1365 (Fla. 1989).

Floyd v. State, 808 So.2d 175, 182 (Fla. 2002). This principlealso applies in an appeal from the summary denial of a successiveRule 3.851. Mungin v. State, 79 So.3d 726, 733 (Fla. 2011);Rivera v. State, 995 So. 2d 191, 197 (Fla. 2008); Lightbourne v.Dugger, 549 So.2d 1364, 1365 (Fla. 1989).

2 As noted in Mr. Ford's Initial Brief, the billingrecords for Mr. Mercurio, Mr. Ford's registry counsel, wereattached to the Rule 3.851 at issue in this appeal and showedthat Mr. Mercurio did not obtain the services of either an expertor an investigator. Those billing records show Mr. Mercurio didnot have Mr. Ford evaluated by any expert, nor obtain copies ofpublic records, the trial attorney file, or otherwise investigateMr. Ford's case for possible constitutional claims. The billingrecords show that Mr. Mercurio conducted no investigation. He didnot seek reimbursement of any kind; no reimburse was sought forcopying costs or other expenses routinely incurred in the courseof an investigation in a capital case (2PC-R 27). He did notsubmitted any billable hours or seek any attorney fees for anywork on behalf of Mr. Ford. In the motion at issue here, Mr. Fordalleged that billing records as well as the non-capital Rule3.850 pro se form motion Mr. Mercurio filed demonstrated that hedid no investigation, he did no research of any kind, and at mostserved as a scrivener in filling out the pro se Rule 3.850 formbased only upon what a mentally impaired Mr. Ford said. Themotion at issue in this appeal alleged that Mr. Mercurio wasunfamiliar with the governing requirements that in presenting anineffective assistance of counsel claim, registry counsel was notonly required to plead and prove trial counsel's deficientperformance, but also demonstrate the resulting prejudice byshowing what information or evidence would have been unearthedhad counsel performed adequately under Strickland v. Washington,466 U.S. 668 (1984). In fact, Mr. Mercurio's use of the form forfiling a pro se Rule 3.850 demonstrated that he was unaware ofRule 3.851 and the pleadings requirements set forth therein.

2

Virginia, 536 U.S. 304 (2002). No where is it noted that Atkins

issued three years after Mr. Ford's trial concluded.3 With a

magigjan's sleight of hand maneuver, the State seeks to shift the

focus to some evidence presented at the 2004 evidentiary hearing

concerning the various mental health experts who reportedly

conducted some testing of Mr. Ford or reviewed the results of

The fact that Mr. Ford's trial was in 1999 and threeyears before the United States Supreme Court's decision in Atkinsv. Virginia, is extremely significant. As that US Supreme Courtsubsequently explained, pre-Atkins evidence regarding mentalretardation as a mitigating factor was governed by Penry v.Lynaugh, 492 U.S. 302 (1989), and not by Atkins. Bobby v. Bies,556 U.S. 825, 834 (2009) ("At the time Bies was sentenced and ondirect appeal, Penry, not Atkins, was this Court's guidingdecision."). The presentation of mental retardation as amitigating factor was a double-edged sword, and as a result theparties had entirely different incentives in deciding how toproceed when mental retardation was offered as a mitigator,rather than, when after Atkins, it was served as a bar to a deathsentence. Id. at 836-37 ("Bies, in contrast, was not acquitted -and, as already observed, determinations of his mental capacitywere not necessary to the ultimate imposition of the deathpenalty. Moreover, even if the core requirements for issuepreclusion had been met, an exception to the doctrine'sapplication would be warranted due to this Court's interveningdecision in Atkins. Mental retardation as a mitigator and mentalretardation under Atkins and Lott are discrete legal issues. TheAtkins decision itself highlights one difference: '[R]eliance onmental retardation as a mitigating factor can be a two-edgedsword that may enhance the likelihood that the aggravating factorof future dangerousness will be found by the jury.' 536 U.S., at

. 321, 122 S.Ct. 2242. This reality explains why prosecutors,pre-Atkins, had little incentive vigorously to contest evidenceof retardation. See App. 65 (excerpt from prosecutor's closingargument describing as Bies' "[c]hief characteristic" his"sensitivity to any kind of frustration and his rapid tendency toget enraged"); id., at 39-54 (cross-examination of Bies' expertwitness designed to emphasize Bies' dangerousness to others).Because the change in law substantially altered the State'sincentive to contest Bies' mental capacity, applying preclusionwould not advance the equitable administration of the law. SeeRestatement § 28, Comment c.").

3

testing conducted by others. Clearly, the State wants the reader

to believe that the 2004 hearing involved adversarial testing of

Mr. Eord's intellectual disability.4 However, it did not; Mr.

Ford's intellectual disability was simply not at issue in 2004.

As to the evidence in 2004, the State writes: "The reports

reflected full scale IQ scores of 88 and 95 (PCR. V2/109, 114);

each one of the doctors specifically rejected a finding of

intellectual disability (PCR. V2/109, 114, 119, 127, 132-33, 179-

80; V3/308-312, 337)." (Answer Brief at 4-5). There are a number

of problems with this representation. First, there was no

discussion of "intellectual disability" at the 2004 evidentiary

hearing because the term used prior to 2007 was mental

retardation·. At the May 12, 2004, evidentiary hearing, the phrase

used was "mental retardation." It came up after Mr. Mercurio had

announced that the defense rested after calling one witness, Mr.

Ford, His testimony was short, 27 pages in the transcript.5 Mr.

In Atkins, the Supreme Court found that the EighthAmendment precluded the imposition of a death' sentence on amental retarded defendant. Later in 2007, the mental healthprofession refined its definitions and labeling of the conditionpreviously known as mental retardation. This was noted by the USSupreme Court in Hall v. Florida, 134 S.Ct. 1986 (2014).

At a status hearing on April 13, 2004, Mr. Mercurio hadorally moved for a continuance of the evidentiary hearing. As thejudge later explained, "the motion was based on theunavailability or non-retention of a potential witness," (PC-R260). The judge noted that the motion had been denied at theApril 13© status "without prejudice" to renew at or before theMay 12© scheduled evidentiary hearing (PC-R 260). On May 12©,the judge began the proceeding by inquiring: "So I need to ask

4

Mercurio was raising no penalty phase issues and had presented no

evidence regarding Mr. Ford's mental health at the evidentiary1

. hear ng before resting.6

The State then called Mr. Ford's trial counsel to testify.

During the direct examination of the trial attorneys, the State

elicited testimony not relevant to the two guilt phase issues

that Mr. Mercurio was pursuing. The State asked trial counsel

"why you did not pursue a defense of mental retardation" (PC-R

312).7 No objection to this line of questioning was registered by

again, Mr. Mercurio, the status of your efforts to retain otherwitnesses." (PC-R 260). Mr. Mecurio responded: "I've advised [Mr.Ford] that I have been unable to secure an expert that will beable to testify that at or before the time of these events he

.. would have testified that Mr. Ford was classified, or could beclassified as mentally retarded." (PC-R 260-61). Mr. Mercuriothen waive the mental retardation claim at the outset of the May12" evidentiary hearing.

As explained infra, this waiver was made by Mr. Mercuriowithout obtaining public records, without accessing the trial

. attorney files, without hiring an investigator, without obtainingthe services of a mitigation specialist, and without contractingwith or retaining a mental health expert to assist with themental retardation issue or to evaluate Mr. Ford. Mr. Mercurioincurred absolutely no expenses and expended absolutely nobillable hours on the issue. The waiver was made in a completeand total vacuum.

The State refuses to acknowledge that Mr. Mercuriopresented no challenges to Mr. Ford's death sentences under theSixth Amendment or the Eighth Amendment or that the Atkins claimhad been waived without any investigation and withoutconsultation with an expert. And, Mr. Mercurio did not conduct

.. any investigation into any other Sixth or Eighth Amendment claimsthat Mr. Ford may have had as to his death sentences.

Of course at the time of the 1999 trial, there was noavailable "defense of mental retardation." As explained in Bobbyv. Bies, 556 U.S. at 836, prior to the 2002 decision in Atkins v.

5

Mr. Mercurio even though it was irrelevant to the two guilt phase

claims he was presenting. Thus, the State gratuitously presented

. - through the testimony of Mr. Ford's trial counsel - hearsay

evidence regarding what some mental health experts had indicated

prior to Mr. Ford's trial.

Prior to the 2004 evidentiary hearing, the State had sought

access to Mr. Ford's trial attorney files. See Appendix A. As was

.clear from the joint stipulation dated November 17, 2003, Mr.

Mercurio had not previously obtained access to the attorney files

. that trial counsel had maintained. This showed that six months

after Mr. Mercurio had been acting as Mr. Ford's scrivener

(preparing and filing a Rule 3.850 pro se form motion for Mr.

Ford's sign-ature) Mr. Mercurio still had not accessed the trial

attorney files and reviewed their contents." On December 24,

Virginia, mental retardation was only available as a mitigatingcircumstance and as such was a "two-edged sword."

8 Mr. Mercurio had also not obtained or reviewed the.. public records that had been provided to the records repository

regarding Mr. Ford and his case. In fact, Mr. Mercurio neverobtained the public records that were provided to the records

. repository for his use in investigating and presenting Mr. Ford'scollateral challenges to his conviction and sentence of death. Itis absolutely shocking that a capital collateral counsel wouldobtain no public records regarding his client, would fail toobtain the trial attorney's trial file, and would conduct noinvestigation whatsoever into possible claims for collateralrelief that his client might have, other than speaking with hismentally impaired client. It is absolutely shocking that theState of Florida gave Mr. Ford a capital collateral counsel whobelieved his job was to be Mr. Ford's scrivener and simply fillout the pro se form for noncapital cases and call that collateral"representation" on Mr. Ford's behalf. Cf. Powell v. Alabama, 287

6

2003, circuit court ordered trial counsel to produce all of their

trial.files for inspection and copying made clear that the trial

attozney files were still in the possession of the trial

attorneys at that time. See Appendix B. In the State's January

22, 2004, motion to continue to the evidentiary hearing set for

February, it was noted that as of that date, trial counsel had

advised the State that "these files (15 boxes) were not yet ready

for pick-up and copying by the State." See Appendix C. By the

time of the May evidentiary hearing, the State had obtained and

copied the trial attorney "files (15 boxes)" and reviewed them.

Counsel for Mr. Ford, however, had not.

When the State called trial counsel to testify and then

without obj.ection proceeded to ask about "why you did not pursue

a defense of mental retardation" (PC-R 312), it had scoured the

15 boxes of files and cherry picked documents and notes that it

liked. Mr. Mercurio, on the other hand, had not accessed the 15

boxes, had not reviewed those files, and did not know what

information was contained therein.3 Perhaps Mr. Mercurio in his

U.S. 45, 57 (1932) ("the circumstance lends emphasis to theconclusion that during perhaps the most critical period of theproceedings against these defendants, that is to say, from thetime of their arraignment until the beginning of their trial,when consultation, thorough-going investigation and preparationwere vitally important, the defendants did not have the aid ofcounsel in any real sense, although they were as much entitled tosuch aid during that period as at the trial itself.")

Reviewing 15 boxes of a trial attorney's trial filestakes many, many billable hours if done by a registry attorneywithout the assistance of an investigator. Mr. Mercurio did not

7

own mind rationalized that it was unnecessary since his two guilt

phase.claims were insular and built solely on Mr. Ford's

testimony. He had waived any mental retardation claim because he

had not retained an expert. Certainly, the guilt phase claims had

been written without seeking access to the 15 boxes of trialI

files or to the public records sitting at the records repository.

Still, Mr. Mercurio had no reason for failing to object to

evidence regarding "a defense of mental retardation" that was

entirely unrelated and irrelevant to the two (2) pending guilt

phase ineffectiveness claims, and he was clearly not prepared for

the testimony elicited by the State. In fact, Mr. Mercurio asked

no questions in cross about "a defense of mental retardation."

W, All of. the evidence about "a defense of mental retardation"

came from the testimony of the two trial attorneys about what

others had told them and the records the State cherry picked from

their files and showed them while on the stand. All of the

evidence that the State now seeks to highlight in its Statement

of the Case and Facts regarding what it now calls "intellectual

disability" is hearsay evidence that was not and is not

admissible for the truth of the matter asserted. Mr. Ford's right

of confront and challenge the evidence was not exercised.

In May of 2004, there was no adversarial process, no

obtain the assistance of an investigator as the billing recordsfrom the DFS clearly show. Just as significant, he submitted nobillable hours for reviewing the 15 boxes of trial files, norsought reimbursement for copying 15 boxes of trial files.

8

adversarial testing of "a defense of mental retardation." There

was no one on Mr. Ford's behalf who went through the 15 boxes of

trial files and found documents, notes, reports, or information

that was favorable to Mr. Ford and presented it. There was no one

at the May of 2004 hearing to contest, challenge and impeach the

cherry picked materials that the State decided to insert into the

record.¹° There was no one there to exercise any of Mr. Ford's

Sixth Amendment rights as to "a defense of mental retardation.""

l° Counsel for the State at the 2004 evidentiary hearingwere very much like children with a sleeping babysitter whodecide to sneak some cookies out of the cookie jar and hide themin their bedrooms for later when they know that they are notsupposed to be eating sweets. In children, the behavior may becute. In adults, it is not, particularly when the adults areprosecutors who are:

.. the representative[s] not of an ordinary party to acontroversy, but of a sovereignty whose obligation togovern impartially is as compelling as its obligationto govern at all; and whose interest, therefore, in acriminal prosecution is not that it shall win a case,but that justice shall be done.

Berger v. United States, 295 U.S. 78, 88 (1935).

The State's Answer Brief ignores that according the DCFrecords, the IQ score of 95 that Mr. Ford received on 1/21/1999occurred after Mr. Ford had been supplied the test with thecorrect answers earlier the same day. As the records noted: "It

. was clear from the beginning of this evaluation that Mr. Ford hadtaken this earlier in the day. In addition to the problemsrelated to practice effects, [Mr. Ford] also indicated he wasprovided the answers on those questions he failed." When Mr.Ford was given a Stanford-Binet the following day, his reportedscore was 78. Obviously, there were problems with methodologywhich severely undercut those who relied on the 95 score as theState does here. Further, a 1/22/1999 Family Psychological Reportnoted in April of 1972 on the Columbia Test of Mental MaturityMr. Ford scored a 68 verbal and a full scale 76. On subtests ofthe WAIS III, Mr. Ford was as in the 5©, 16° and 25° percentile.

9

This was not an adversarial testing of the issue as the

State.implicitly suggests in its Statement of the Case and Facts.

Mr. Mercurio did not object to the irrelevant evidence. He did

not confront the witnesses. He did not act as counsel on the

. issue at all. Indeed, he just sat there - an empty suit. While he

did rise to conduct cross, he only addressed the guilt phase

issues (waiver of speedy trial and use of a voluntary

intoxication defense at the guilt phase) raised in the motion to

vacate that he had filed using the pro se Rule 3.850 form. Cf.

Powell v. Alabama, 287 U.S. 45, 57 (1932) ("the circumstance

lends emphasis to the conclusion that during perhaps the most

critical period of the proceedings against these defendants, that

is to say, .from the time of their arraignment until the beginning

of their trial, when consultation, thorough-going investigation

and preparation were vitally important, the defendants did not

have the aid of counsel in any real sense, although they were as

much entitled to such aid during that period as at the trial

itself.")

The State refuses in its Statement of the Case to address

Mr. Ford's factual allegations in motion at issue in this appeal:

Thus it is clear that in the previous Rule 3.851motion, a claim of penalty phase ineffective assistance

. was not presented and pursued. Indeed, Mr. Mercuriodid not investigate any penalty phase issues, let aloneraise any challenge in the initial collateral review ofMr. Ford's death sentences as to the effectiveness oftrial counsel at the penalty phase of Mr. Ford's trial.Mr. Ford had wished to challenge his death sentences

10

. and wished to challenge the effectiveness of therepresentation that he received under the SixthAmendment.

(2PC-R 4). Later in his motion, Mr. Ford alleged:

Mr. Ford was recognized by the sentencing judge as. "learning disabled," and having "mild organic brain

impairment." Ford v. State, 802 So. 2d at 1127 n.3.And the learning-disabled, brain-impaired Mr. Ford washoused on death row at the time of the initialcollateral review proceedings completely dependent uponhis court-appointed registry counsel to investigate andpresent his ineffective assistance challenge to hispenalty phase counsel. The court-appointed registrycounsel without adequately investigating presented nochallenges to Mr. Ford's death sentence and raised noineffectiveness claim as to the penalty phase at theproceeding which was Mr. Ford's first opportunity toraise a Sixth Amendment claim under Strickland v.Washington, 466 U.S. 668 (1984).

(2PC-R 11) (footnotes omitted). Later in the motion, he alleged:

Mr. Ford's registry counsel in his initial collateralreview proceedings failed to investigate Mr. Ford'spenalty phase ineffective assistance of counsel claim.Mr. Ford wanted the issue raised. While learningdisabled and suffering from mild brain impairment andincarcerated on death row, Mr. Ford relied upon court-appointed registry to do what he could not, investigatethe facts in light of thè controlling standards setforth in Strickland v. Washington, and challenge theadequacy of his penalty phase counsel's representationand the death sentences that were imposed. Counsel'sfailure to conduct an adequate investigation and raisethe available challenge to the adequacy of penaltyphase counsel's representation, indeed present anychallenge to Mr. Ford's death sentences, is really nodifferent that the circumstances in Steele v. Kehoe,where collateral counsel failed to file a timelycollateral challenge causing the convicted to lose hisright to file a Rule 3.850 motion. Indeed unless thisCourt permits the presentation of Mr. Ford's Stricklandchallenge to the penalty phase representation that hereceived, Mr. Ford will have lost the right tochallenge his death sentence in a Rule 3.850 motion.

11

(2PC-R 15).

All of these allegations and Mr. Mercurio's failure to do

any geaningful work on Mr. Ford's behalf as reflected by his

billing records are ignored and omitted from the State's

Statement of the Case and Facts.

Sliding past Mr. Ford's factual allegations, the State

instead writes: "Following the evidentiary hearing, Ford's

postconviction motion was denied, and this Court affirmed that

ruling on appeal." (Answer Brief at 6). Omitted is any reference

to the fact that Mr. Mercurio only raised two issues on appeal in

this Court. Argument I was captioned:

I. THE TRIAL COURT'S FINDING THAT APPELLANT'S TRIALCOUNSEL DID NOT RENDER INEFFECTIVE ASSISTANCE OFCOUNSEL WITH RESPECT TO THE VOLUNTARY INTOXICATION

- DEFENSE ISSUE IS NOT SUPPORTED BY COMPETENT,SUBSTANTIAL EVIDENCE.

Initial Brief, Case No. SC04-1611, at 16. Argument II was

captioned:

. II. APPELLANT'S TRIAL COUNSEL RENDERED INEFFECTIVEASSISTANCE OF COUNSEL BY WAIVING APPELLANT'S RIGHT TO ASPEEDY TRIAL.

Initial Brief, Case No. SC04-1611, at 18. The Initial Brief did

not raise a mental retardation claim, did not cite Atkins v.

Virginia, 536 U.S. 304 (2002), did not rely on the Eighth

Amendment or any Eighth Amendment jurisprudence, and presented no

challenge to the penalty phase proceeding and/or the resulting

death sentences. Those issues were not litigated.

12

Finally in reply to the Statement of the Case and Facts in

the Answer Brief, Mr. Ford must address the following passage

written by counsel for the State:

The State filed an answer to the [2013] motion [tovacate] (V1/51-57). However, before the case managementconference, issues arose with regard to Ford'srepresentation when Mr. McClain filed a motion tocontinue the case indefinitely because his contract forrepresentation had expired, he was not satisfied withthe new terms he had been offered, and he refused toprepare for any case management conference until he hada valid contract assuring compensation for his services(VI/58-200; V2/209-22). The representation issue wasultimately resolved and then two days before therescheduled case management conference, McClain filed amotion to amend.

(Answer Brief at 7) (emphasis added). Here, counsel for the

State, Carol Dittmar, knowingly makes false assertions in order

to cover up her own shenanigans in seeking "to win" at any cost

regardless of a defendant's constitutional and statutory rights.

See Berger v. United States, 295 U.S. 78, 88 (1935).

In fact, the Timely Justice Act was signed into law on

Friday, June 14, 2013 (2PC-R 65). One of its provisions provided

for the Justice Administrative Commission (JAC) to replace the

Department of Financial Services (DFS) as the contract manager

for all capital collateral cases in which a capital collateral

registry counsel had been appointed as collateral counsel (2PC-R

87). On Wednesday, June 19, 2013, JAC sent undersigned counsel a

form letter indicating that JAC was construing the Timely Justice

Act as terminating his contract to represent Mr. Ford effective

13

July 1, 2013 (2PC-R 145). Unless he executed a new and different

agreement with different terms "which will soon be posted on

JAC'g.website," the letter warned he would not "receive any fees

or costs through JAC. DFS will no longer be directly responsible

for such payments." (2PC-R 145). This letter threatened that

undersigned counsel would not be reimbursed for work done on Mr.

Ford's behalf on or after July 1, 2013. On Tuesday, June 25,

2013, JAC notified undersigned counsel that the new agreement he

was required to sign in order to be paid for work he did on

behalf of Mr. Ford after July 1, 2013, which had been posted on

JAC's website, contained a scrivener's error (2PC-R 149). The

corrected agreement was provided to undersigned counsel on June

25, 2013, exactly eight days before the case management hearing

scheduled for July 3, 2013 (2PC-R 82).

JAC's announcement that it construed the Timely Justice Act

as terminating undersigned counsel's contract to represent Mr.

Ford violated black letter law, i.e. the Contract Clause of the

United States Constitution.¹²

See Chiles v. United Faculty of Florida, 615 So. 2d671, 672-73 (Fla. 1993)("Once the executive has negotiated andthe legislature has accepted and funded an agreement, the stateand all its organs are bound by that agreement under theprinciples of contract law."); U.S. Trust Co. of New York v. NewJersey, 431 U.S. 1, 25-26 (1977) ("As with laws impairing theobligations of private contracts, an impairment may beconstitutional if it is reasonable and necessary to serve animportant public purpose. In applying this standard, however,complete deference to a legislative assessment of reasonablenessand necessity is not appropriate because the State'sself-interest is at stake. A governmental entity can always find

14

Because of JAC (a state agency) threatened to not compensate

counsel for work performed on Mr. Ford's behalf, undersigned

counspl served a motion for continuance on July 1, 2013, when JAC

refused to budge on its assertion that counsel's contract to

represent Mr. Ford was a nullity and that he would not be

compensated for any work he did on behalf of Mr. Ford unless he

agreed with JAC and signed a new and more onerous contract.

On July 2, 2013, undersigned counsel was orally advised that

his motion to continue the July 3rd hearing was being granted and

that an order re-setting the hearing would follow.¹³

Later on July 2, 2013, the State served "State's Request for

Appointment of Counsel (CCRC-S) to Represent Defendant Ford (2PC-

R 58). In this motion, the State asserted that in light of the

July 1, 2013, motion for continuance, "it is clear that Ford is

currently without counsel and will be without counsel until some

uncertain time in the future." (2PC-R 60).¹4 The State's motion

a use for extra money, especially when taxes do not have to beraised. If a State could reduce its financial obligationswhenever it wanted to spend the money for what it regarded as animportant public purpose, the Contract Clause would provide noprotection at all.") (emphasis added).

The written order that was subsequently filed with theclerk on July 15, 2013, shows the judge's signed the order July2, 2013 (2PC-R 84).

The State did not challenge JAC for the threats that itmade to not reimburse counsel for his time expended serving asMr. Ford's counsel, a violation of this Court's ruling in McClainv. Atwater, 110 So.3d 892 (Fla. 2013). Nor did the State pointout that JAC's position was contrary to the Contract Clause of

15

asked the circuit court to appoint CCRC-South as counsel for Mr.

Ford '.'as soon as possible" (2PC-R 60). Thereupon, the circuit

courg,. without addressing the impropriety of JAC's threats to

court-appointed counsel, ordered Mr. McClain to "resolve[] his

dispute with the JAC" by July 26, 2013, or withdraw as Mr. Ford's

counsel (2PC-R 82). When Mr. McClain gave notice that he had a

valid existing contract in place and was prepared to move forward

in reliance upon the contract he had entered with DFS, and upon

McClain v. Atwater, the circuit signed an order on August 2,

2014, granting the State's motion finding that undersigned

counsel "has failed to comply with the Court's order." The order

rescinded Mr. McClain's appointment to represent Mr. Ford (2PC-R

195). Mr. McClain then filed an Interlocutory Petition with this

Court challenging the circuit court's action. See Ford v. State,

Case No. SC13-1674. After JAC was ordered to respond to the

petition, JAC called undersigned counsel in early October and

conceded that the contract that Mr. McClain entered into with DFS

to represent Mr. Ford had not been terminated by the Timely

Justice Act, but remained in effect (2PC-R 589). Ms. Dittmar

participated in the telephone conference at which JAC's

capitulation was announced on the record and it was stated that

she was aware of JAC's concession (2PC-R 588).

The State's assertion in its Statement of the Case and Facts

the US Constitution.

16

that Mr. McClain's "contract for representation had expired" is

false, Not only is it false, the record shows that Ms. Dittmar

knowg it is false as shown by the transcript of an October 16,

2013 hearing. JAC sought to void a valid contract in violation of

the Contract Clause. JAC sought to interfere with counsel's

.. ability to represent Mr. Ford; it threatened that he would not be

.l paid in violation of McClain v. Atwater. Ms. Dittmar's assertions

that "Mr. McClain['s] . . . contract for representation had

expired, he was not satisfied with the new terms he had been

offered, and he refused to prepare for any case management

conference until he had a valid contract" are false. The record

shows that Ms. Dittmar is aware that her assertions are false.

. Certainly to the reader, this all sounds petty. Indeed,

undersigned counsel concedes that he would not have bothered to

even discuss this, but for the fact that the false assertions

appear to have been inserted in order to camouflage the glaring

omission, i.e. it was the State - Ms. Dittmar - who sought to use

JAC's actions to get Mr. McClain removed from of Mr. Ford's case.

Her action in this regard must be compared to her actions

. when Mr. Mercurio filed a motion to vacate on behalf of Mr. Ford

on a pro se form for use in Rule 3,850 proceedings, 1.e. non-

capital cases. Clearly, Mr. Mercurio did not know the most basic

matter in capital collateral litigation - what rule governs

capital collateral proceedings and sets forth the pleading

17

requirements and the procedure to be followed. When Ms. Dittmar

received Mr. Mercurio's motion to vacate on a pro se Rule 3.850

form.motion, she knew that it was not in compliance with Rule

3.851 and that it was woefully inadequate. She said as much in

her response. But what she did not do was express genuine concern

to the circuit court or to this Court by saying, "We have a

problem here. Mr. Mercurio doesn't know what he is doing" and/or

"he isn't up to the task of providing effective representation to

Mr. Ford."

Instead, Ms. Dittmar urged the circuit court to move forward

and conduct an evidentiary hearing. At the 2004 hearing, Ms.

Dittmar chose to take advantage of Mr. Mercurio's incompetency by

introducing· cherry picked, irrelevant evidence that Mr. Mercurio

would not know enough to challenge or contest and that she could

later be used to Mr. Ford's detriment.

Ms. Dittmar's actions in Mr. Ford's case (embracing

incompetent representation for Mr. Ford, and then later seeking

to get rid of the most experienced and successful capital

collateral counsel on the registry) are the living embodiment of

what the US Supreme Court warned against in Berger v. United

States, 295 U.S. 78, 88 (1935). It is this kind of prosecutorial

conduct that infects the process, undercuts the search for

reliability, and results in the highest death row exoneration

rate in the nation.

18

REPLY TO ARGUMENT I

"The death penalty is the gravest sentence our society mayimpose. Persons facing that most severe sanction must have a fair

opportunity to show that the Constitution prohibits theirexecution. Florida's law contravenes our Nation's commitment to

dignity and its duty to teach human decency as the mark of acivilized world. The States are laboratories for experimentation,

but those experiments may not deny the basic dignity the.. Constitution protects."

Hall v. Florida, 134 S.Ct. 1986, 2001 (2014).

The above quote appeared on page 1 of Mr. Ford's Initial

Brief. As the Table of Contents reflected, Hall v. Florida was

cited seven times in Mr. Ford's Initial Brief. Mr. Ford's

argument was that he was deprived of the Eighth Amendment right

set forth in Hall that those facing execution "must have a fair

opportunity. to show that the Constitution prohibits their

execution."¹³ He argued that Hall, in conjunction with the

equitable right recognized in Trevino v. Thaler, 133 S.Ct. 1911

(2013), warranted providing Mr. Ford with the "fair opportunity"

Recently, this "fair opportunity" requirement set forthin Hall was discussed by Judge Martin in Banks v. Sec'y Fla.Dep't of Corrs., 2014 WL 5870477, at *5 (11° Cir. Nov. 13,2014), in her concurring opinion:

The Supreme Court has recently said, "[p]ersons facingthat most severe sanction must have a fair opportunityto show that the Constitution prohibits their

.. execution." Id. Although I agree with the Majority thatMr. Banks has gotten all the review that the lawentitles him to have, I cannot say with confidence thathe has been given a 'fair opportunity' to show anyconstitutional violation that might be associated withhis conviction or the sentence of death that will becarried out today.

19

that he did not receive when the State foisted Mr. Mercurio on

him as the state-provided registry counsel. See Powell v.

Alabama, 287 U.S. at 56-57.

Despite Mr. Ford's heavy reliance on the newly issued

decision in Hall v. Florida, the State does not cite or mention

Hall in its Answer Brief or make any effort to respond to Mr.

Ford's reading of it. The State does not make, and in truth

cannot make, the argument that Mr. Ford, saddled with first Mr.

Mercurio and then Mr. Truskoski, had "a fair opportunity" to

demonstrate that his death sentence was unconstitutional.

When those facing execution in Florida have been provided

effective collateral counsel who insures that the condemned

receive "a fair opportunity to show that the Constitution

prohibits their execution," many have shown that penalty phase

relief was warranted and then in further proceedings received a

sentence of less than death. See Porter v. McCollum, 558 U.S. 30

(2009); Cooper v. Sec'y Dep't pf Corrs., 646 F.3d 1328 (ll" Cir.

2011); Johnson v. Sec'y Dep't of Corrs., 643 F.3d 907 (ll" Cir.

2011); Robinson v. State, 95 So.3d 171 (Fla. 2012); Coleman v.

State, 64 So.3d 1210 (Fla. 2011); Ferrell v. State, 29 So.3d 959

(Fla. 2010); Williams v. State, 987 So.2d 1 (Fla. 2008); State v.

Lewis, 838 So.2d 1102 (Fla. 2003); Ragsdale v. State, 798 So.2d

713 (Fla. 2001); State v. Mills, 788 So.2d 249 (Fla. 2001);

Maharai v. State, 778 So.2d 944 (Fla. 2000); Riechmann v. State,

20

777 So.2d 342 (Fla. 2000); Young v. State, 739 So.2d 553 (Fla.

1999); Thompson v. State, 731 So.2d 1235 (Fla. 1999); Porter v.

State 723 So.2d 191 (Fla. 1998); Torres-Arboleda v. Duqqer, 636

So.2d 1321 (Fla. 1994); Deaton v. Duqqer, 635 So.2d 4 (Fla.

1993); Garcia v. State, 622 So.2d 1325 (Fla. 1993); Hudson v.

State, 614 So.2d 482 (Fla. 1993); Scott v. Duqqer, 604 So.2d 465

(Fla. 1992); Mason v. State, 597 So.2d (Fla. 1992); Mitchell v.

State, 595 So.2d 938 (Fla. 1992).¹6 These were human beings who

This is by no means an exhaustive list of all thoseFlorida death sentenced individuals who when provided "a fairopportunity to show that the Constitution prohibit[ed] theirexecution," were able to prevail on a collateral challenge totheir death sentences and then receive a sentence of less than

. death. Counsel is aware of a number of instances were the Stateconceded relief and a lesser sentence before a 3.851 appealreached this Court. Those condemned individuals included: LarryBrown, Nathaniel Jackson, Frank Griffin, Mauricio Beltran-Lopez,Henry Espinosa, Antonio Carter, Gregory Capehart, David Cook,Charlie Kight, Carlis Lindsey, Jose Maquiera, Ernesto Suarez, andKenny Watson. Yet in still other cases, the condemned whenprovided "a fair opportunity" were able to have their convictionsoverturned and subsequently received a resolution. of their cases

. with a life sentence or less. Swafford v. State, 125 So.3d 760(Fla. 2013); Floyd v. State, 902 So.2d 775 (Fla. 2005); Mordentiv. State, 894 So.2d 161 (Fla. 2004); State v. Holton, 835 So.2d269 (Fla. 2002); Hoffman v. State, 800 So.2d 174 (Fla. 2001);Rogers v. State, 782 So.2d 373 (Fla. 2001); Roman v. State, 528So.2d 1169 (Fla. 1988). See also Agan v. Singletary, 12 F.3d 1012(11© Cir. 1994). In Juan Melendez's case, the State did notappeal a circuit court granting a new trial and dropped allcharges. As to each of the Florida death sentenced individualsidentified in this footnote, the convictions and death sentenceswould have remained intact had the condemned been providedcollateral counsel like Mr. Mercurio or Mr. Truskoski, who didnot obtain the available public records, who did not obtain thetrial attorneys's files, who did not have the assistance of aninvestigator, who did not retain an expert to assist as tomatters involving expert opinion, who did no investigate of theirown other than a quick conversation with the condemned at which

21

were facing the gravest sentence our society permits. These

humans were convicted and sentenced to death just like Mr. Ford.

This..gourt affirmed on direct appeal the death sentences imposed

. on all these individuals just like it affirmed Mr. Ford's death

sentence. But unlike Mr. Ford, each and everyone of these

condemned received competent collateral counsel who through hard

work and investigation insured that the individuals were afforded

a "fair opportunity" to show that their death sentences were

unconstitutional, the "fair opportunity" demanded by the Eighth

Amendment demands. See Hall, 134 S. Ct. at 2001.

Without a "fair opportunity" demanded by the Eighth

Amendment, the unreliability and/or unconstitutionality of any

given death- sentence will remain unseen. Should this Court rely

on a failure of the condemned to show that his death sentence was

unreliable and/or unconstitutional when he was not provided the

"fair opportunity" that others received and that the Eighth

Amendment demands before an execution is carried out, this Court

the condemned's thoughts were jotted down and inserted in a prose Rule 3.850 form motion, and who were unaware of the proceduralrules that governed capital collateral proceedings. Had anyone ofthe individuals identified in this footnote received the unfairopportunity, i.e. no actual opportunity, that was given Mr. Ford,they would either still be on death row or already executed. And,all the facts that became known because of competent collateralcounsel actually working the case and investigating in an effortto find claims for relief, would still not be unknown, e.g., theevidence demonstrating Juan Melendez's innocence would never havebeen discovered, the evidence demonstrating Antonio Carter'sincompetence to stand trial would have remained hidden, and KennyWatson's mental retardation would not have been discovered.

22

would be embracing an "ignorance is bliss" approach in capital

cases. In another words, the rule of law would be that "as long

as we..don't know that the death sentence is unreliable and/or

unconstitutional, carrying out the death sentence does not offend

'the basic dignity the Constitution protects.'" Hall v. Florida,

134 S.Ct. at 2001. Such a rule, which is what the State is in

fact asking for in Mr. Ford's case, clearly violates the Eighth

Amendment principles set forth in Hall. Since as explained in

Hall, "our Nation[] . . . [has a] duty to teach human decency as

the mark of a civilized world," what kind of lesson would there

be to be drawn from such an ignorance is bliss approach to

capital cases? The answer to that question is easy: if you hide

the unreliability or the constitutional infirmities below the

surface, then the unreliability and infirmities don't count. That

hardly counts as teaching human decency. It violates the Eighth

Amendment principles set forth in Hall.

Recently in Abdool v. Bondi, 141 So.3d 529, 555 (Fla. 2014),

Justice Pariente wrote a separate concurring opinion, joined by

Justices Labarga and Perry, in which she discussed this Court's

commitment to "ensure that the ultimate punishment of the death

. penalty is inflicted in a manner that fully comports with the

Constitution." She then elaborated:

Recent cases such as Johnson and Swafford demonstratethis Court's commitment to thorough judicial review ofdeath penalty cases throughout the course ofproceedings, even after a death warrant has been

23

signed, and even though we ultimately reject the vastmajority of successive postconviction claims that comebefore us.

Id. t 556. But, this Court's tolerance of Mr. Mercurio's view of

his role as merely a scrivener for Mr. Ford would show that this

Court's commitment to "thorough judicial review" is illusory or

at best transitory. To accept that it is permissible for the

State of Florida to thrust upon a capital collateral defendant an

empty suit who shuffles papers with no regard to content and

calls that legal representation, while holding the condemned

accountable for the incompetency of the empty-suit collateral

counsel provided by the State is a violation of the bedrock

equitable principle, the clean hands doctrine. Dale v. Jennings,

107 So. 175·, 180 (Fla. 1925) ("It is proper to state in this

connection that the doctrine of clean hands need not be pleaded

to be available, but where the evidence discloses the

unconscionable character of the transaction, equity will of its

own motion apply the maxim and deny relief.").

It is well known nationally that Florida leads the nation in

the number of exonerations of individuals on its death row. See

www.deathpenaltyinfo.org/innocence-and-death-penalty#inn-st. At

the same time Florida is now making news for blown deadlines for

seeking federal habeas review in capital cases. See Appendix D,

www.themarshallproject.org/2014/11/15/death-by-deadline-part-one,

at page 8 ("Since its death penalty was reinstated in 1976,

24

Florida, for example, has bounced from one troubled arrangement

to another for the provision of post-conviction counsel. Of the

80 capital cases with a missed deadline, Florida has 37 - the

most of any state by far."). The blown federal habeas deadlines

mean the death sentences will not be subject to federal review.

See also Lugo v. Sec'y Fla. Dep't of Corrs., 750 F.3d 1198, 1216-

17 (11© Cir. 2014) (Martin, J., concurring in judgment). It is

clear that the blown deadlines are a product of the State

thrusting upon capital defendants incompetent counsel. Yet,

though the State chooses the counsel, enters into a contract with

counsel, pays counsel, and thus has the means to insure registry

counsel actually provides competent representation, this Court

could cannot under the Eighth Amendment choose to hold the

condemned accountable for attorney errors when the condemned has

no power over the state-provided counsel while the State does.

Any tolerance of incompetent state-provided collateral

representation belies Justice Pariente's words in Abdool. The

reliability of Florida's capital scheme is at stake; indeed,

Florida is becoming a national embarrassment.

CONCLUSION

Based upon the record and the arguments presented herein and

in his Initial Brief, Mr. Ford respectfully urges the Court to

reverse the circuit court and order an evidentiary hearing.

25

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing motion

has been furnished by email service to

Carol.Dittmar@myfloridalegal.com which is the primary email

. address given for opposing counsel, Carol Dittmar, Assistant

Attorney General, on December 4, 2014.

/s/ Martin J. McClain

MARTIN J. MCCLAINFlorida Bar No. 0754773McClain & McDermott, P.A.Attorneys at Law141 NE 30thWilton Manors, FL 33334(305) 984-8344martymcclain@earthlink.net

Registry Counsel for Mr. Ford

CERTIFICATE OF FONT

This is to certify that this Reply Brief has been produced

in a 12 point Courier type, a font that is not proportionately

spaced.

/s/ Martin J. MócIain

MARTIN J. MCCLAIN

26

e

APPENDIX A

21/07/2003 FRI 11:00 FAI 941 505 4863 CC ECONOMIC CRIME UNIT 004/006

IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCulTIN AND FOR COLLIER COUNTY, FL ' CRIMINAL ACTION

STATE OF FLORiDA CASE NO.: 97-351-CF-cae...

... Vs.

JAMES D. FORDDefendant .

. JOINT STlPULATION TO OBTAlii.QOPY OF THEDEFENDANT'S TRIAL COUNSEL'S FILES

COMES NOW, the State of Florida, by and through the undersignedAssistant State Attomey, and the Defendant, JAMES D. FORD, by and throughthe undersigned attomey, and hereby jointly.stipulate to the enby of an Orderdirecting the defendanfo trial counsel to provide a copy of their file to the StateAttorney's Office and the defendant's undersigned attorney based ul')on the

. following:

2.

3.

4.

The defendant was represented at trial by attomeys Paul D. Sullivan,Attorney At Law, 520 East Olympia Avenue, Punta Gorda. Florida339504838 and Paul Alessandroni, Attomey at Law, 520 E. OlympiaAvenue, Punta Gorda, Florida 33950-3838.The defendant, JAMES D. FORD, has filed a Motion for PostConviction Relief which alleges that trial counsel provided ineffectiveassistance of counsel and seeks an evidentiary hearing to establishsame. The State has filed a response which alleges no error,in the event this Court should determine that an evidentiary hearing isnecessary, the State and the defendant need to review the trialcounsel's files to adequately prepare for depositions and said hearing.The Florida Supreme Court has ruled that by the filing of e Motion forPost Conviction Relief which alleges a clairn of ineffective assistanceof counsel, the defendant waives the attomey-client privilege. Tumerv. State, 530 So. 2'"' 45, 46 (FLA. 1987). Trepal v. State.. 754 So. 2d702 (FLA. 2000). The waiver extends to trial counsers file. LeCroy b.State, 641 So. 2"d 853 (FLA. 1994), Reed v. State. 640 So_ 2"d 1094(FLA. 1994)

WHEREFORE, The State of Florida and the defendant stipulate to the entryof an Order directing the defendant's trial counsel, Paul D. Sullivan, Esquireand Paul Alessandroni, Esquire to produce their trial file for inspection andcopy to the State of Florida and Defendant's current Attomey, Frededek P.

.1r/07/2003 FRI 11:00 FAX 941 505 4863 CC ECONOMIC CRIME UNIT Ql005/006

JOINT STIPULATIONJAMES D. FORD 'PAGE 2

Mercurio, Attomey At Law, 747 N. Washington Boulevard, Sarasota, Florida34236. _ _.

.... Dated: Dat :

Defendant

/Frederick P. MercuAttorneyfor the De endant

Robert A. LeeAssistant State AttomeyP.O. Box 511927350 East Marion AvenuePunta Gorda, FL 33950(941)505-4870

. . ORDER

THIS CAUSE, having corne before the Court pursuant to the JointStipulation tò Obtain Copyof the Defendant's Trial Counsel's Files, and the Courtbeing fully advised, it is

ORDERED AND ADJUDGED that the defendant's trial counsel, Paul DSullivan, AttomeyAt Law and Paul Alessandroni, Attomey at Law shall, withinthirty (30) days of the date of this Order, produce all their trial files in this case tothe State Attomey and the defendant's current attomey, Frederick P. Memurio,AttomeyAt Law, for inspection and copy.

DONE AND ORDERED in Chambers at Naples, Collier County. Floridathis day of 2003.

Honorable Cynthia A. EllisCircuit Judge

CERTIFICATE OF SERVICE ·

l HEREBY CERTIFY that a true and correct copy of the foregoing has .been fumished to Robert A. Lee, Assistant State Attomey, 350 East Marion

4988SSE sTouaru c>nvc .-- -- - - ----

APPENDIX B

IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FORCHARLOTTE COUNTY, FLORIDA CRIMINAL ACTION

STATF OF FLORIDA CASE NO. 97-351-CF

Petitioner,

JAMES D. FORD

Defendant.

ORDER

THIS CAUSE having come before the Court pursuant to the Joint Stipulation to Obtain

Copy of the Defendant's Trial Counsel's Files, and the Court being fully advised, it is

ORDERED AND ADJUDGED that the Defendant's Trial Counsel, Paul D. Sullivan,

Attorney At Lavt and Paul Alessandroni, AttorneyAt Law shall, within thirty (30) days of the

date of this Order, produce all their trial files in this case to the State Attorneyand the

Defendant's current attorney, FrederickP. Mercurio, AttorneyAt Law, for inspection and copy.

DONE AND ORDERED in Naples, Collier County, Florida on this day of

69mt Å2).L . 2003.

. dYNTHIA A. ELLISrcuit Court Judge

cc: Robert E. Lee, Assistant State AttorneyFrederick P. Mercurio, Esq.Paul D. Sullivan, Esq.Pau1Alessandroni, Esq.

Ford stip & order.wpd

Page 1 of 1

F

a

APPENDIX C

IN THE Cl UlT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN ANDFOR CHARL TTE COUNTY, FLORIDA CRIMINAL ACTION

STATE OF FLORIDA

VS. - CASE NO. 97-351-CF (CAE)(RAL)

JAMES D. FORD

STATE'S MOTION FOR CONTINUANCE OF THEEVIDENTIARY HEARING SET FOR FEBRUARY 4, 2004

COMES NOW the State of Florida, by and through the undersignedAssistant State Attomey, and files this Motion for Continuance of the EvidentiaryHearing in this case set for February 4, 2004 based upon following:

1. An Evidentiary Hearing has been scheduled in this case for the Defendant'sMotion for Post-Conviction Relief for February 4, 2004.

2. On November 7, 2003 at the Status Conference held by the Court, theState and the defendant were ordered to exchange witness and exhibit listsby Monday, December 15, 2003. The Court entered an Order to this effecton December 15, 2003. Although the State filed its Witness and Exhibit listas ordered, the defendant's counsel, to date, has not. Without thedefendant's Witness and Exhibit list, the State has been unable to conductdiscovery and adequately prepare for the February 4, 2004 EvidentiaryHearing.

3. Pursuant to the "Joint Stipulation To Obtain .Copy of the Defendant's TrialCounsel's Files" the Court entered an Order on Decemtiér 24, 2003enabling the State to obtain the files of trial Counsel Paul D. Sullivan and

. Paul Alessandroni. Unfortunately, as of the date of this Motion forContinuance, Mr. Sullivan indicated these files (15 boxes) were not yetready for pick-up and copying by the State. Without these files, the Statehas been unable to set and take the depositions of said trial counsel inorder to adequately prepare for the Evidentiary Hearing set for February 4,2004.

WHEREFORE, the State asks that the Evidentiary Hearing becontinued and reset to provide the State adequate time to prepare.NOTE: The undersigned Assistant State Attorney will be unavailable fromFebruary 17, 2004 until March 22, 2004.

COPY

�04297-351-CF. James D. Ford

Motion for ContinuancePage 2

This Motion is made in good faith.

Robert A. LeeAssistant State AttorneyFla. Bar No. 0219673P.O. Box 511927Punta Gorda, FL 33951

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing hasbeen furnished to Carol Ditmar, Esquire, Asst. Attomey General, Department ofLegal Affairs, 3507 East Frontage Road, 2°d Floor, Tampa, FL 33607 andFrederick P. Mercurio, Esquire, 747 North Washington Boulevard, Sarasota, FL34236-4243-and Administrative Office of the urts in Fort Myers, FL by UnitedStates Mail/Hand Delivery thisMdayof ., 2004.

Robert A. LeeAssistant State Attomey

mhm/ford.motion

2

APPENDIX D

12/1/2014 Death by Deadline, Part One1 The Marshall Project

Deaihby Deadline, Part OneHow bad lawyering and an unforgiving law cost condemned men their last appeal.

In 1992, Kenneth Rouse, an African-American man with an IQ between 70 and 80 - "borderline intellectual

functioning," in the clinical parlance - prepared to stand trial in North Carolina on charges that he had

robbed, murdered and attempted to rape a white, 63-year-old store clerk.

Rouse's lawyers questioned the prospectivejurors to try to expose any racial or otherbias theymighthave

against the defendant. But several years after the all-white jury convicted Rouse and recommended adeath sentence, his defense team made a stunning discovery.

This is part one in a series of stories published in partnership with The Washinaton

Post. Read part two.

One of the jurors, Joseph S. Baynard, admitted that his mother had been robbed, murdered and possibly

raped years before. Baynard had not disclosed this history, he said, so that he'could sit in judgment ofRouse, whom he called "one step above a moron." Baynard added that he thought black men ("niggers"

was the term he was quoted as using) raped white womenfor bragging rights.

As claims ofjuror bias go, the evidence could hardlyhave been stronger. But Rouse's final appeal was

neverheard. Under the Antiterrorism and Effective Death PenaltyAct of 1996, Rouse's lawyers had just

one year after his initial state appeal to petition for a last-resort hearing in federal court.

They missed the deadline by a single day.

A federal appeals judge wrote that it was "unconscionable" for her court to reject Rouse's case because of

such a mistake byhis court-appointedlawyers. But dozens of lawyers have made the same mistake, and

most of their clients, like Rouse, have not been forgiven by the courts for missing the deadline.

An investigationby The Marshall Project shows that since PresidentBill Clinton signed the one-year

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statute of limitations into law - enacting a tough-on-crime provision that emerged in the Republicans'

Contract withAmerica - the deadline has been missed at least 80 times in capital cases. Sixteen of those

inmates have since been executed - the most recent on Thursday, when Chadwick Banks was put to death

in Florida,

Bymissing thë filing deadline, those inmates have usually lost access to habeas corpus, arguably the most

critical safegard in the United States' system of capital punishment. "The GreatWrit," as it is often called

(in Latin it nieans "you have the body"), habeas corpus allows prisoners to argue in federal court that theconviction or sentence they received in a state court violates federal law.

For example, ofthe 12 condemned prisonerswho have left death row in Texas after being exonerated

since 1987, five of them were spared in federal habeas corpus proceedings. In California, 49 ofthe 81

inmates who had completed their federal habeas appeals by earlier this yearhave had their death

sentences vacated.

The prisoners who missed their habeas deadlines have sometimes forfeited powerful claims. Some of

them challenged the evidence oftheir guilt, and others the fairness of their sentences. One Mississippi

inmate was found guiltypartly on the basis of a forensic hair analysis that the FBI now admits was flawed.

A prisoner in Florida was convicted with a type ofballistics evidence that has long since been discredited.

Just last month, Mark Christeson, a Missouri inmate whose lawyers missed the habeas deadline in 2005,

.. received a stay ofexecution from the Supreme Court justhours before he was set to die by lethal injection.

In a court brief filed on Christeson's behalf, 15 former state and federal judges emphasized that he had not

even met the appellate attorneys handling his federal case until after the filing deadline had passed.

"Cases, including this one, are falling through the cracks ofthe system," theywrote "And when the stakes

are this high, such failures unacceptably threaten the very legitimacy of the judicial process."

The 80 death-penalty cases reviewed here were largely culled from databases offederal court opinions,but they also include other, unpublished rulings that were known to capital defense attorneys and

advocates interviewed around the country. They represent just a fraction of the habeas appeals foreclosed

by the 1996 law, which also applies to non-capital cases,

Like Rouse, who is still awaiting execution in North Carolina, two other inmates missed the habeas

deadline by a single day, and for the mostbanal reasons. One attorneymade the mistake ofusing regularmail instead ofan overnight courier; another relied on a court's after-hours filing system, which turned out

to be broken.

But many of the other habeas petitions from condemned inmates were late byhundreds of days, or eventhousands. (On average, those lawyers missed the deadline by 853 days, or more than two years and four

months.) In one case, the attorneywas more than 11 years late.

Some ofthe lawyers' mistakes can be traced to their misunderstandings of federal habeas law and the

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notoriously complex procedures that have grown up around it. Just as often, though, the errors have

exposed the lack ofcare and resources that have long plagued the patchwork system bywhich indigent

death-rowprisoners are provided with legal help.

The right ofcondemned inmates to habeas review "should not depend upon whether their court-

appointed coùnsel is competent enough to complywith [the] statute of limitations," one federal appeals

judge, BeveglyB. Martin, wrote in an opinion earlier this year. Allowing some inmates into the court

system wlSIÈÃurning others away because ofhow their lawyers missed filing deadlines was making the

federal appeals process "simply arbitrary," she added.

Meanwhile, the problem that the habeas deadline was intended to solve- the ever-lengthening delays in

�042 the carrying out ofdeath sentences - has grown steadily. In 1996, the average time from sentencing to

execution was 10 years and five months, according to the Bureau ofJustice Statistics. In 2012, the latest

year for which the same figure is available, the delay had stretched to 15 years and 10 months.

Average Years from Sentence to Execution,1984-2012

The average time from sentenceto execution in 1996, when the

15 - Antiterrorism and EffectiveDeath Penalty Act passed, was10 years 6 months.

|01

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0

I I i

1990 2000 2010SOURCE: BUREAU OF JUSTICE STATISTICS

Passing habeas reforrn

The 1996 law that set the one-year statute of limitations on habeas appeals was one of the signal

compromises that Clinton forged on domestic policy in the aftermath of the sweeping Republican victory

in the 1994 midterm elections.

Some Republicans had advocated for habeas corpus reform for years, mainly as a wayto streamline and

limit death-row appeals. The idea struggled to gain traction, but it became a small element ofthe Contract

withAmerica championed by then-Rep. Newt Gingrich (R-Ga.), who was on his way to becoming House

speaker. After the Oldahoma City bombing in 1995, the proposal found new life as part of antiterrorism

legislation embraced by both parties.

That pairing created political tension, both between the major parties and within them. Some Democrats

supported the antiterrorism measures but viewed the habeas restrictions as the unnecessary

circumscribing of a fundamental right. Some Republicans backed the habeas restrictions but feared the

possible government excesses that might come from expanding surveillance authorities and other law

enforcement powers also included in the measure.

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"Why is it necessary to link the death penalty and the constitutional guarantees ofhabeas corpus to a

terrorism bill?" Rep. Joseph P. Kennedy II (D-Mass.) asked during the debate in the House. "This is just a

political deal. It is a political deal to get votes on the right."

Bythe mid-1990s, American support for the death penaltyhad climbed to 80 percent, its highest point

since Gallup began polling on the issue in the 1930s. Public patiencewith the appeals process also waswaning as tlgtypical time between sentencing and execution stretched to more than a decade.

"Somehow, somewhei·e, we are going to end the charade of endless habeas proceedings," the chairman of

the House Judiciary Committee, Rep. Henry J. Hyde (R-Ill.), declared in the debate over the antiterrorism

law. "And this bill is going to do it."

But important changes in the legal landscape already were raising concerns among some civil libertarians.One opponent ofthe habeas proposal, Rep. Melvin Watt, a North Carolina Democrat, cited the advent of

DNA evidence and the fact that some prisoners were being exonerated up to 15 years after their trials.

Congress, he said, was proposing "to compromise the most basic thing - innocence - for political

expediency."

Four former U.S. attorneys general who were opposed to the legislation - two Democrats and two

Republicans - wrote to Clinton to urge that any filing deadlines on habeas petitions take effect "only upon

the appointment of competent counsel."

As supporters of the bill lined up four competing attorneys general behind their position, Hyde announced

that he had a "celebrity to trump all of those attorneys general" on the matter. "His name," Hyde said, "is

President Clinton."

Clinton, who had initially opposed linking habeas reform to the antiterrorism measures, changed his mind

- as he had on keyfacets ofwelfare reform, criminal sentencing and other domestic policies. As he began

campaigning for reelection, he described the delays in death-penalty litigation as "ridiculous." Thestreamlining of appeals should begin with the Oldahoma Citybombing cases, he announced.

The ranking Democrat on the Senate JudiciaryCommittee, Joe Biden ofDelaware, introduced

amendments to soften several of the habeas restrictions in the bill. At one point, he proposed to limit theone-year deadline to only federal prisoners, but he eventually supported the bill that came to the floor

without that change.

The legislation passed the Senate by a vote of 91 to 8, and it cleared the House by a margin ofmore than

two to one.

Myriad mistakes

The hurried and often convoluted draftsmanship of the law's habeas provisions began to come undercriticism almost as soon as it took effect. The ambiguities of the measure left a host ofquestions for the

courts to answer, and with each passing year, the relevant case law has grown more complex.

Under the 1996 law, the one-year statute oflimitations to file a federal habeas petition is supposed to begin

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after the conclusion of an inmate's direct appeal, which is filed in the state courts.

The directhypeal - the first ofthree levels ofpossible appeals - must focus on the trial record. It can argue,

for examplé, that an important objection by the defense counsel should have been sustained rather than

overruled.

Post-conviction petitions, which include federal habeas corpus appeals, can go beyond the trial to dealwith anything from new evidence to the discovery ofJuror misconduct.

Lawyers who do post-conviction work in capital cases face a daunting array of challenges: They must

typically reinvestigate the evidence for both guilt and punishment; canvass witnesses called and uncalled;plumb a defendant's criminal, social and family history; and round up and study thousands ofpages of

records. They must also navigate an ever-shifting landscape ofappellate deadlines and procedures,

identify promising issues and craft a detailed petition - all while under the pressure of defending a client

whose life may depend on their success.

Yet while the law guarantees that indigent death row inmates have a court-appointed attorney in federal

habeas corpus proceedings, it does not stipulate that the attorney must be competent. The Constitution

guarantees the effectïve assistance of counsel at trial, but gives no similar assurance for lawyers doing

habeas work.

Some ofthe same federal judges who are responsible for appointing habeas counsel have later traced the

failure of such attorneys to meet the filing deadline to their inexperience, indifference, ineptitude or illness

- and to myriad combinations thereof.

Motions or petitions filed properly in the state courts can suspend the federal deadline. But sometimes the

motions are filed improperly, with lawyers neglecting to secure authorization to practice in a given court

or failing to pay a required filing fee.

In at least three cases since 1996, attorneys filed papers in the wrong court. One appellate attorney

discovered thathis predecessor missed the habeas deadline after failing to even order the client's case file.

Another attorney, who insisted that he had read the relevant case file, was later found to have never picked

up the voluminous records from a state repository.

In some of the 80 cases, mistakes byjudges compounded those ofdefense attorneys.

The lawyer for Richard Hamilton, who was convicted in 1995 ofraping and murdering a 23-year-old

nursing student after kidnapping her from a supermarket parldng lot in Lake City, Fla., thought Hamiltonhad more time to file than he really did. So did a local judge, who told Hamilton not to worry. "It has been

resolved," the judge said, to whichHamilton replied: "Ifyou say so, that's good enough for me."

In two cases out ofTexas, U.S. district court judges granted requests for a illing extension - setting, in

effect, what appeared to be a new deadline - then enforced the old deadline after the petition was filed.

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"Parenthetically, this court may have erred in assuming that it had the authorityto extend the statutory

deadline," one judge later acknowledged.

Sometime courts waited too long to appoint habeas counsel. In California, where the courts have

. struggled mightily to find attorneys for capital appeals, at least six inmates received an attorney only after

their deadline hadpassed - bymore than five years in two cases.

Then there are lawyers who have failed even more basic scrutiny.

Some of the attorneys appointed to the 80 cases include an Alabama lawyerwho was addicted to

methamphetamine and was on probation for public intoxication, and a Louisiana lawyerwho suffered

from a neurological and physiological disorder so debilitating that he was asked to leave his firm.

One attorney in Texas had twice before been reprimanded for misconduct, while another Texas lawyerhad twice been put on probation by the state bar. Two weeks after being appointed in the capital case, he

was put on probation again.

In Mississippi, Willie Jerome Manning's first appointed attorney withdrew, citing his "most limited

knowledged [sic] and familiaritywith post-conviction proceedings at all." A second attorney alsowithdrew, citing his lack of qualifications. A third attorneywas appointed - by a court order that was

misfiled, adding to the delays - seven months after Manning's habeas deadline.

Two other men facing death sentences complained that their lawyerhad a drinking problem - and they

had the same lawyer. "Damn near fell out ofhis chair," one of the inmates wrote of the man in a letter to

the lawyer's co-counsel.

As deadlines approached, some inmates pressed their attorneys for information. "I'm getting a little

worried," one wrote. Another pleaded, "I want to knowwhat's going on!" ChadwickBanks, the inmateexecuted in Florida on Thursday, wrote his attorney three weeks before his filing deadline, asking about

some date" that he understood could make a "big difference." (Ultimately his appeals deadline was

missed by 2,079 days.)

In several cases, courts have shown that prisoners who schooled themselves in habeas law havesometimes demonstrated a better understanding of legal intricacies than their lawyers.

"[P]lease file my 2254 Habeas Petition immediately," one defendantwrote in a typical plea to his lawyer.

"Please do notwait any longer ... again, please file my 2254 Petition at once."

The Supreme Court tooknote ofthe phenomenon in the case ofAlbert Holland, who was sentenced to

death for the 1990 murder of a Florida police officer who tried to arrest him.

"Holland was right about the law," the justices wrote. His lawyer, they added, "was wrong about the law."

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In the tracing ofblame, the case of Mississippi death-row inmate Alan Dale Walker offered a triple bank

shot. Attorneys for the state put a wrong date in a court filing. The Mississippi Supreme Court incorporated

that error into an opinion. An attorney forWalker then used the opinion to calculate the filing deadline.

Walker had a second attorneywho had separately calculated the deadline, without relying on the court's

opinion. He came up with a different date - but his date was wrong, too.

Pitfalls and procedural issues

The struggle to find capable lawyers for capital cases has been particularlyvisible in a handful of states

with large numbers of death-row inmates.

Since its death penaltywas reinstated in 1976, Florida, for example, has bounced from one troubled

arrangement to another for the provision ofpost-conviction counsel. Of the 80 capital cases with a missed

deadline, Florida has 37 - the most of any state by far.

The state originally asked private lawyers to do the work free; it got few takers. It then established a special

government office to do the work, but later shifted much of the load to a registry ofprivate attorneys after

lawmakers complaine'd about the delays and the cost. In 1998, the state also set a cap on the number of

hours per case those lawyers could bill (840) and the rate they could charge ($100 per hour).

The complexities ofhabeas law often have challenged even the most conscientious defense attorneys.

Michelle Kraus is an experienced defense attorneyin FortWayne, Ind., who concentrates ahnost entirely

on trial work. At the request of a lawyer friend, she signed on to assistwith a state-level appeal for Gregory

Scott Johnson, who had been convicted in 1986 ofbeating an 82-year-old woman to death. But after her

friend left the case, Kraus wound up taking it to federal court, where she confronted a steep learning curve,

"It was overwhelming, getting grounded in it," Kraus says. She got the standard text on habeas practice and

procedure - at that point, the two volumes ran to some 2,000 pages - and read it front to back. She also

traveled to Atlanta to attend a one-weekseminar on capital litigation, taught by some of the country's

leading experts.

Kraus devoted long hours to Johnson's petition, which included a claim that prosectitors failed to disclose

evidence thatmight have reduced Johnson's culpability and perhaps spared him the death penalty. She

dropped the petition in the mail three days before deadline, but it arrived one day late.

"Counsel bungled the job," the federal appeals courtwrote in 2004. Instead of using first-class mail, Kraus

should have opted for FedEx or a courthouse messenger, the court said. The person held accountable

would be Johnson. "[L]awyers are agents," the court wrote. "Their acts (good and bad alike) are attributed

to the clients they represent."

Telling Johnson about her mistake - and how he would be punished for it - "was probably the hardest

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thing I've ever done," Kraus says. She stayed on the case - "he forgave me," she says - andwas with

Johnson for his last meal before he was executed in 2005.

But Kraus lias declined to do any more habeas work since then.

"The pitfalls are there, and I fell into one," she recalled. "And it was horrible."

Sometimes, even legal organizations that are usually lauded for the quality of their capitalwork have faced

criticism.

In a Georgia case, a federal judge chastised lawyers with the Southern Center for Human Rights, a

nonprofit that opposes the death penalty and provides free legal support to prisoners in capital cases. The

Southern Center lawyers had left the case well before an inmate's habeas petition was due, but the judge

argued that they should have done more to find replacement counsel and to help the inmate determine

the filing deadline.

One of the authors of the two-volume legal guidebook on habeas practice, James S. Liebman, a law

professor at Columbia University, says the complexity and vagueness of the 1996 law has given lawyers all

Idnds ofprocedural ñuances over which to fight. An important result has been that prosecutors have more

ways to get a petition thrown out on procedural grounds - an advantage that they have seized

"energetically and assiduously," Liebman says.

The guidebook, now in its sixth edition, has grown over the years to 2,700 pages. "There are more and

more pages," he said, but "less and less justice."

Confronted with late filings, courts have embraced a remedycalled "equitable tolling," which allows

judges to waive a missed deadline in some circumstances. But courts limit its application to extraordinarysituations, and the standard has been applied unevenly around the country.

Plain negligence - or a "simple gaffe," as the court labeled the mistake Kraus made - generallywill notmerit a judge's forbearance. But abandoning clients or lying to them often will constitute grounds for

setting the deadline aside.

In the 80 capital cases, courts have granted equitable tolling in about a third. At least three ofthe inmates

whose habeas petitions were reviewed went on to receive new trials.

The courts usuallywon't forgive a missed deadline ifan attorneymisinterpreted the law, a mistake that

gets categorized as negligence. But a federal court in Ohio did so in the case ofMichael Keenan, alandscaper who was convicted ofmurdering a youngman found in a Cleveland park. "He would have

been executed," Keenan's lead defense lawyer, Vicki Werneke, said in an interview. "He came dangerously

close to getting his whole case dismissed."

When Werneke came onto the case in 2008, after Keenanhad been granted equitable tolling, the state's

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case was already showing signs of unraveling. In 2012, a U.S. district court judge considered Keenan's

habeas petition and ordered a newtrial. Citing the state's "egregious prosecutorial misconduct" in

withholding evidence, an Ohio countyjudge later ruled that prosecutors can't retry Keenan, allowing him

to go free.

The state's appeal of that ruling is nowpending before the Ohio Supreme Court.

Race against time

When a deadline is missed, an inmate's federal appeal can be lost - no matter the strength of the argumentfor a newtrial, and even if the late filing can be attributed more to hard luck than ineptitude.

The lawrequires that prosecutors turn over evidence favorable to the defense before trial. But itwasn'tuntil 22 years after William Kuenzel was condemned in Alabama that his appellate attorneyreceived

police notes and grandjury testimony undermining the prosecution's case.

Kuenzel was convicted in 1988 ofmurdering a convenience-store clerk. But in 2010, the state disclosed

that an alleged accomplice originally told police he was with someone else, and that the only eyewitness

who identified Kuenzel at trial had told grand jurors she "couldn't really see a face."

With such revelations, Kuenzel's claim of innocence has attracted an array ofprominent supporters and

generated a polished publicity campaign. Three former district attorneys - Robert M. Morgenthau of

Manhattan, Gil Garcetti ofLos Angeles and E. Michael McCann ofMilwaukee - filed a briefwith the

Supreme Court saying the newly surfaced evidence "completely eviscerated" a prosecution case that they

characterized as "weak, to say the least."

Although Kuenzel now has potentially strong grounds for an appeal, he still lacks a court to hear them - hislawyer missed the federal filing deadline bynearly three years.

When the 1996 law took effect, Kuenzel had one year to file his habeas petition. But the law included a

provision thatwould suspend the normal one-year statute of limitations if an inmate had a "properly filed"

petition pending in state court, effectively stopping the clock on the appeals process.

A petition thatKuenzel had filed in an Alabama circuit court had been dismissed as untimelyin 1994, but

. . then restored to the docket in May 1996. This led Kuenzel and his attorney to believe he had a "properly

filed" state petition pending, and that the countdown toward the appeals deadline had paused.

But three years later, the circuit court reversed itself again at the request of state prosecutors, which was

interpreted by a federal court to mean that the clock had been ticidng all along.

"It is just the most grievous injustice," says David Kochman, an attorney who has been working on

Kuenzel's appeal since 2004. "If any case was crying out for review, it was this case."

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The state has written in court files that the newly disclosed evidence "fails to even come close" to

exonerating Kuenzel. "It is time for this case to finally come to an end," wrote the state, which two months

ago asked for an execution date to be set.

Sentenced to death at26, Kuenzel is now 52. In a letter to this reporter last month, he wrote that he felt likehe was listening to an old grandfather clock as itwound down, knowing he wouldbe killed when it stops.

He can't redïid the clock, he said, because "the courts have shut the hole."

Guarding against racial prejudice

On April17, 1996, as then-Sen. Daniel Patrick Moynihan argued against anyweakening ofhabeas corpus

protections in the pending antiterrorism bill, the NewYork Democrat reminded his colleagues that the

matters at hand were more profound than mere legal procedures.

"We are dealing here, sir, with a fundamental provision of law, one of those essential civil liberties which

precede and are the basis ofpolitical liberties," Moynihan said.

Quoting from a letter that several former attorneys general hadwritten to President Clinton, he cast the

federal courts' ability to review state-court decisions under habeas corpus as an essential guarantee: "It

has a proud history of guarding against injustices born ofracial prejudice and intolerance, of saving the

innocent from imprisonment or execution, and in the process, ensuring the rights ofall law-abiding

citizens."

Two days before Moynihan's speech on the Senate floor, one of the jurors whovoted to send Kenneth

Rouse to his death, Joseph Baynard, signed an affidavit acknowledging thathe had deliberatelywithheld

�541 the fact ofhis mother's murder so that he could get on the jury.

Baynard, who died lastyear, acknowledged in the affidavit that his decision in the Rouse case might have

been colored by "bigotry." A Duke University law student who interviewed the former juror for Rouse's

appeal also filed a separate affidavit detailing.Baynard's racial invective.

At that point, Rouse's case was still in the state courts, which ultimately denied him a newtrial. His one-year habeas deadline came on Feb. 7, 2000, and his lawyers, who miscalculated the date, filed their

petition on his behalfone daytoo late.

While the American public often complains about criminal defendants winning their legal cases on

technicalities, the opposite is often true, says Gretchen Engel, a habeas expert who had advised Rouse'sdefense team and provided the correct filing date: "What they don't realize is how often people lose on

technicalities, or in ways that would offend most people's sense ofjustice."

Despite the federal courts' refusal to hear his case, Rouse got one more chance in 2009, when the North

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