Friday, September 25, 2020

Vote NO on all Florida Judges in 2020 (short version)

 Voters throughout Florida are being asked whether or not to retain appellate court judges. I am recommending a NO vote on each of these judges, no matter what part of the state, for two reasons:

1. These judges aren't doing their job. In 75% of their cases they refuse to give an explanation for their ruling. This is bad for individual litigants but also means that trial judges and prosecutors are not held accountable for failing to follow the law.

2. Each of these judges was appointed by a Republican governor. Many of them are members of the Federalist Society, an organization devoted to dismantling the regulatory state and quashing individual constitutional rights. 

If you would like to read a more detailed explanation of why I believe these judges should not be retained, and for a summary of each Judge's tenure and links to the Florida Bar materials on these elections, you may go here.

Thursday, September 24, 2020

Making the Case to VOTE NO on all FLORIDA JUDGES in 2020

    Floridians will face a lengthy ballot in 2020. Depending on what part of the state they live in, voters will be asked the same question four, five or even six times: "Should Judge so and so of the District Court of Appeal be retained in Office?" This year, there is one justice from the Florida Supreme Court (Carlos Muniz) and twenty-four judges from the five district courts of appeal up for retention. I am encouraging all Florida voters to vote NO on all of these judges. I will give my reasons but first a little history:

History and Georgraphy: In the early 1970's Florida courts were consumed by scandals, especially the Florida Supreme Court, whose members were popularly elected. Governor Reuben Askew led a series of judicial reforms that resulted in the merit selection system. The thinking was that judges should face the voters periodically and could be removed by election if they were corrupt or incompetent. No judge has ever lost a merit retention election in Florida, and these ballots rarely draw any attention.

      Voters should understand that the Florida Supreme Court only hears a limited number of cases, such as death penalty cases or when an issue has statewide importance. The District Courts of Appeal are intended to be the final stop for most appeals, whether civil or criminal. Florida is divided into five regions, so for instance, the First District covers north Florida, the Second District covers most of the west-central section, the Third District covers Miami-Dade and the Keys, the Fourth District covers the rest of south-east Florida, and the Fifth District stretches from the east coast to the west and includes Orlando.

Why Vote No? For years I advised voters who asked me, to vote yes on all judges. This was based in large part on direction from the Florida Bar. Each election the Florida Bar polls its members, finds they overwhelmingly support retention, then publishes a voter's guide that contain biographies of the candidates and descriptions of their job, and an admonition that none of the judges can discuss issues in any manner. The not so subtle message each election is that each judge should be retained, and I went along with this messaging in past elections.

  I have now been a member of the Florida Bar for 35 years. My first 23 years I worked almost exclusively as a criminal defense trial attorney handling major cases in the Sarasota Bradenton area. The past 12 years I began handling numerous appeals in the Second District Court of Appeal in Tampa. An appeal is of course important to someone who has been convicted and sentenced to prison and may represent their last chance at freedom. Appeals are also important for accountability, to make sure that trial judges and prosecutors are following the law, and to require new trials when the rules aren't followed. Therefore, it is very important to ensure these judges are doing their job. In my opinion, they aren't. 

    As mentioned above, the District Courts of Appeal are the final stop for almost all cases. So imagine for a second that you were unjustly accused and wrongfully convicted of a serious crime in Florida. Imagine you hired an attorney who agreed with you that serious mistakes had been made in your trial and agreed to represent you on appeal. Imagine that the attorney works on the case for months, files a compelling written brief of arguments in the court, then makes a powerful oral argument to the judges.  Now imagine that you get the ruling of the court; "Per Curiam Affirmed," commonly known as a PCA. You ask the lawyer what it means, and you are told it means that you lost the appeal, that the court is giving no reasons for their decision, and you have no opportunity for any further appeals.

   Presently, the District Courts of Appeal in Florida are issuing a PCA in approximately 75%  of all cases they hear. This means that three out of four times, the appeal is denied and nobody knows why, except the judges and they're not telling. This is a terrible state of affairs for the citizens of Florida and for their attorneys. On the other hand, trial judges and prosecutors delight in PCAs, taking them as a stamp of approval that they can get away with anything without consequences.

    Attorneys have been complaining about PCAs for as long as I have been practicing. We have a sneaking suspicion that PCAs are used in most cases as a result oriented device to cover up the many errors that occur in a trial court. As such, PCAs have been a tool of mass incarceration, filling our prisons with citizens who were illegally if not wrongfully convicted. Our complaints about PCA's have fallen on deaf ears, with appellate court judges justifying their use due to their alleged heavy work load. They also claim that PCAs are only used "when the points of law raised are so well settled that a further writing would serve no useful purpose." Elliott v Elliott, 648 So.2d  137, 138 (4th DCA 1994) In my experience, this statement is utterly and completely false. 

      I handled homicide cases for the most part, and these trials had numerous legal issues arise with no precedent in Florida law. These were substantial questions that needed definitive responses from the court, yet when I would appear for oral argument the judges showed little interest in the case or the issues. Invariably I would receive my PCA a few days later, giving me little confidence that the judges had considered my issues or even read the arguments. In my view, when Florida appellate judges are issuing PCAs in three out of four cases, they are not doing their job, and therefore should not be retained in office.

     My primary argument for voting NO on all Florida judges is that they are simply not doing their job. The problem is institutional and systemic, that is, the system is designed to fail, not to vindicate the constitutional rights of litigants. But why should an individual judge lose their job because of systemic failure? This leads to my next justification for voting NO on all judges -- politics. Every judge up for retention in 2020 was appointed by a Republican governor.

    In the past I have been leery about politicizing judicial races but that position feels naive now. Without a doubt, Florida judges have been politicized over the past 20 years. These days, membership in the Federalist Society seems like a prerequisite to being named judge. Though they deny it, the Federalist Society is a political organization whose primary goal is to dismantle the regulatory state for businesses while reducing constitutional protections for individual litigants. Judges who come out of the Federalist Society are chosen because they will vote a certain way, not for their fealty to the law.

  Voters in Florida have been given the power of the ballot and it is time that they use it. If you are dissatisfied with mass incarceration, judicial hostility to constitutional rights and judges who won't do their job, then VOTE NO. It is doubtful that this article will result in sufficient NO votes to remove any judge, and even if it did, Florida's Governor (who is in large part responsible for these judges) gets to appoint their replacements. Nevertheless, each NO vote will send a message to Florida's judiciary that they need to do better.


All Florida voters will vote whether to retain Justice Carlos Muniz. Justice Muniz was appointed by Governor DeSantis in January of 2019. He has chosen to ignore binding United States Supreme Court precedent in death penalty cases. VOTE NO on Justice Carlos Muniz


Joseph Lewis, Jr. was appointed by Jeb Bush in 2001. VOTE NO to retain Judge Lewis.

Scott Makar was appointed by Rick Scott in 2012. VOTE NO to retain Judge Makar.

Rachel Nordby was appointed by Ron DeSantis in October of 2019. VOTE NO to retain Judge Nordby.

Tim Osterhaus was appointed by Rick Scott in 2013. VOTE NO to retain Judge Osterhaus.

Clay Roberts was appointed by Charlie Crist in 2007. Roberts was the director of the Florida Division of Elections during the disastrous 2000 presidential election. VOTE NO to retain Judge Roberts.

Adam S. Tanenbaum was appointed by Ron DeSantis in October 2019. VOTE NO to retain Judge Tanenbaum.


Drew Atkinson was appointed by Rick Scott in 2018. VOTE NO on Judge Atkinson.

Morris Silberman was appointed by Jeb Busch in 2001. VOTE NO on Judge Silberman.

Daniel H. Sleet was appointed by Rick Scott in 2012. VOTE NO on Judge Sleet.

Andrea Teves Smith was appointed by Rick Scott in January of 2019. VOTE NO on Judge Smith.


Monica Gordo was appointed by Ron DeSantis in 2019. VOTE NO on Judge Gordo.

Eric William Hendon was appointed by Rick Scott in 2018. VOTE NO on Judge Hendon.

Fleur Jeannine Lobree was appointed by Ron DeSantis in 2019. VOTE NO on Judge Lobree.

Thomas Logue was appointed by Rick Scott in 2012. VOTE NO on Judge Logue.

Bronwyn Catherine Miller was appointed by Rick Scott in 2018. VOTE NO on Judge Miller.


 Alan O. Forst was appointed by Rick Scott in 2013. VOTE NO to retain Judge Forst.

Mark W. Klingensmith was appointed by Rick Scott in 2013. VOTE NO to retain Judge Klingensmith.

Martha C. Warner was appointed by Bob Martinez in 1989. VOTE NO to retain Judge Warner.


Kerry I. Evander was appointed by Jeb Bush in 2006. VOTE NO to retain Judge Evander.

John M. Harris was appointed by Rick Scott in 2018. VOTE NO to retain Judge Harris.

Richard B. Orfinger was appointed by Jeb Bush in 2000. VOTE NO to retain Judge Orfinger.

Meredith Sasso was appointed by Rick Scott in January, 2019. VOTE NO to retain Judge Sasso.

F. Rand Wallis was appointed by Rick Scott in 2013. VOTE NO to retain Judge Wallis.

The Florida Bar provides official biographies on all candidates.

Thursday, April 30, 2020

Brainstorming jury trials when they resume

This post comes from an email by Kelvin Bohnet from the Office of the Capital Defender in Norfolk, Virginia, and was the product of soliciting ideas as to how to go forward with jury trials while the virus is with us.

Here is the list of ideas:
  • Written jury questionnaires to the greatest extent possible;
  • Individual or small panel voir dire;
  • Daily questionnaires/inquiry for empaneled jurors on health/family concerns;
  • Extra alternate jurors;
  • Expanded empaneled jury seating, either with extra well seating or in the gallery;
  • Larger juror deliberation chambers to facilitate spacing;
  • PPE (mask, gloves, etc.) for jurors, gallery, and courtroom personnel (consensus was that PPE for counsel and client may do more harm than good);
  • Temperature screening for anyone coming into court;
  • Full COVID-19 testing at some appropriate interval;
  • Disinfectant supplies/procedure for courtroom spaces (juror seating, counsel tables, podiums, witness stands, etc.);
  • Video/telephone witness testimony;
  • Shortened daily hours and/or more days "off" in multi-week proceedings;
  • Partial or full closure of the proceedings to the public.