As a criminal defense lawyer, I am often faced with a series of inquiries from friends and family like, “How can you represent those people?” (Roy Black has a very interesting blog post (and twist) on this precise question).
A less-prevalent, but nonetheless common question is: “Have you ever gotten someone off on a technicality? (And if so, how do you sleep at night?)”
Put simply, I reject the premise that underlies such a question. What are “technicalities” under the law? I can think of none. For, at least in my view, the Rules of Criminal Procedure, Florida & Federal Statutes, and Florida & Federal Constitution, (and the decisions of our appellate courts interpreting them), are the laws of the land, not “technicalities.”
People hardly dispute the proposition that for every violation of the law there should be an adverse consequence. So why do they reject the notion that, for every violation of a person’s rights (statutory, common law, or constitutional), there should be a remedy? That’s a question better answered on another day. For now, take a look at this recent decision from Florida’s 11th Judicial Circuit.
When I was an Assistant Public Defender in the Miami-Dade Public Defender’s Office, I routinely worked on cases with facts that, had we gone to trial, would have made an acquittal an uphill battle for sure. The case of Ms. Martinez was one of those.
DUI, DUI with Property Damage, Leaving the Scene of an Accident, all witnesses (police and civilian eyewitness alike) showing up on trial day, High Blows, etc. And yet, for reasons irrelevant here, a trial was going to happen.
But the trial didn’t happen…and all the charges were dismissed. Why? Speedy Trial issues. No, not your run-of-the-mill “we dropped an NOE; the State fell asleep behind the wheel; we filed a Motion for Final Discharge.” This was different. We found ourselves facing down the barrel of trial deep into the Notice of Expiration period, but not yet beyond the recapture window. The State still had time to impanel a jury, and they wanted to.
But then, on the morning of trial, after our motion to suppress breath samples was denied, we found ourselves in the unexpected position of having to move to disqualify County Judge Ortiz (I constantly referred to it as “recusal,” which, evidently, was wrong. It’s “disqualification,” as the 11th Judicial Circuit pointed out) after a more-than stern colloquy of our client and an impermissible pre-judging of the facts. That motion was granted, but she charged it as a defense continuance because the case would have to be reset, blind filed, and assigned to another judge. Stated another way, we felt the ruling was: “You have presented an argument that you won’t get a fair trial. We will remedy that. But as a penalty, you also won’t get a speedy one.”
“Do you still want to do the trial today? You want me to find another judge right now?” — “Yes, we do,” I replied. (A defense continuance was charged anyway).
We waited a few days and still no trial, so we filed our Motion for Final Discharge before Judge Altfield. He denied the motion, noting that we had filed a complex motion to suppress (he referred to it as a motion to dismiss, which it wasn’t) after filing an NOE and had moved to disqualify a judge. The latter move was juxtaposed with a speedy trial and characterized as a “Hobson’s Choice”: the right to a speedy trial v. the right to a perceived fair trial.
We felt confident the law was on our side, which is to say, we felt naked. But thanks to the great work of APD Brian Ellison, ultimately, the Circuit Court granted the Writ and ordered that all charges be dismissed. (Shout out to APD Klara Stephens, as Ms. Martinez was her client and she vigorously argued the “Hobson’s Choice” issue before Judge Altfied–the aptly characterized quandary described by APD Robert Klassman).
The opinion provides a wonderful (defense friendly) analysis of one’s right to Speedy Trial. A solid precedent for the defense bar.
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