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Why Some Florida State Criminal Court Judges Rule Correctly On Constitutional Issues

The Author has wondered 'why' Florida State Court Judges rule differently when presented with the same set of facts and identical Constitutional issue presented in Court. It seems that other intangible and non-legal factors oftentimes weigh in on judicial determinations of a putative defendant's constitutional rights. Bear in mind that when a defendant loses a constitutional challenge in court the prosecution wins, and vice versa. It seems that many times a judge's political affiliation, past employment history, peer pressure, public pressure, and what they ate for lunch on any given day, may have a bearing. Do they like the attorney standing in court or not? Do political endorsements come into the judge's decision making process? Personal friendships? There are too many variables that must be tabulated to figure out that conundrum, however, there seems to be an overriding characteristic of certain Florida State Court Judges that refuse to correctly rule according the law and their own consciences; that is, fear of how they will be viewed by others after a controversial ruling. Unfortunately, many Florida State Court Judges prefer just not to make waves by Denying many well founded constitutional motions presented as a matter of course. Is it possible that Florida State Criminal Court Judges rule based upon what is good for their personal careers? It is rare indeed for a Florida State Criminal Court Judge to make a bold ruling because it is the correct ruling, notwithstanding that others view the ruling made as a political bombshell for that Judge personally.

There are other Florida Judges, such as the Honorable Milton Hirsch, Eleventh Circuit in and for Miami-Dade County Florida, who is not afraid to rule correctly for fear of reprisal. Judge Hirsch just rules the way judges are supposed to rule; in an unbiased fashion with sound legal reasoning to support his rulings-come what may. In 2011 Judge Hirsch found the Florida Drug Statutes Unconstitutional, arguably helping putative defendants. In 2016 Judge Hirsch found Florida's Death Penalty Statute (as written) Unconstitutional, again, arguably helping defendants. In 2017 Judge Hirsch found Florida's 2017 (shifting burden of proof) Amendment to Florida's Stand Your Ground Law Unconstitutional, arguably helping the prosecution. From these three rulings, without delving deeply into the nuances of each, it is the Author's opinion that Judge Hirsch is clearly unbiased and looking at the laws on the books and trying to do the right thing-always, as opposed to being just prosecution oriented, or defense oriented, like so many other Florida State Criminal Court Judges. Why aren't more Florida Court Judges like Judge Hirsch? Judge Hirsch is fairly outspoken while most Florida Judges prefer not to make any ripples in the pond on their respective watches.

Federal Judges In Florida tend to follow the law and always make the correct decisions. Is that because they are more professional and generally smarter people? The Author believes that to be true on both counts. The difference is that Federal Court Judges do not fear reprisal, ever, based upon their rulings. One may not like a Federal Court Judge's rulings on a case, but these rulings always have merit and follow the doctrine of stare decisis in the Circuit where these Judges sit.

Many Florida State Criminal Court Judges believe that they can ignore on-point Federal caselaw interpreting the United States Constitution from the Eleventh Circuit Court Of Appeals, the federal circuit that includes the State Of Florida. The Author believes that is wrong, as many Florida Judge's interpretation of the Florida Constitution winds up being more restrictive of a defendant's rights than a Federal Judge's interpretation of the same United States Constitutional provision. When a Florida Judge makes a bad ruling, based upon the notion that Federal caselaw interpreting the United States Constitution from the Eleventh Circuit, is "persuasive", but not "mandatory", there is a breakdown in the rule of law and the criminal justice system. Although that happens quite often, Florida attorneys rarely appeal Florida State Court rulings during the pendency of the case, notwithstanding availability of extraordinary Writs that may be filed to combat bad rulings received. Oftentimes a courts' ruling pre-trial will make or break the entire case, so it is critical to obtain the correct ruling from the Court not to devastate the rest of the case. Very few attorneys will take the time to appeal an adverse ruling 'real time' even where the attorney believes the court's ruling is completely wrong, based upon fears of making the judge mad, due to laziness, time constraints, monetary constraints, or just incompetence. That is the ultimate harm feared by a bad judicial ruling.

There are many times when a Florida attorney is litigating a constitutional issue in Florida State Criminal Court and believes that he or she has a slam dunk winner only to discover that the Florida State Court Judge ruled against them. What the attorney choses to do with that adverse ruling is paramount to their client's ultimate success. Unfortunately, more often then not, the attorney just accepts the adverse ruling and does not call the Judge to task by appealing that adverse ruling and being outspoken in that cause.

The Author applauds Florida Circuit Court Judge Milton Hirsch for being in the legal arena and actually challenging laws enacted by The Florida Legislature that he believes unconstitutional, instead of being herded around like so many other Florida State Court Judges who make rulings based upon personal considerations, political beliefs, or for a multitude of other reasons unrelated to the law, or the doctrine of stare decisis. Although Judge Hirsch is ultimately overruled some of the time, the fact that Judge Hirsch places select constitutional issues under a microscope is essential.

“It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat.”

― Theodore Roosevelt

Florida criminal laws need to be under a microscope most of the time, because The Florida Legislature often specifically overrules a prior year Florida Supreme Court decision, by enacting legislation to eviscerate constitutional caselaw in Florida related to a specific issue. The result of this end around is that criminal defendants always wind up with less rights than they had before. The Florida Legislature does not consider the constitutionality of any particular criminal statute with the same vigor that they consider the monetary cost of changing the statute, or the monetary cost of permitting a putative defendant to enjoy a constitutional right. For instance, the constitutionality of the general 'knowledge' element of the drug trafficking statutes were presented to Florida Legislature in 2012 stating that defendants would be less likely to plead guilty if the State had to prove specific knowledge [that the substance in their constructive possession was an illicit substance], thereby increasing court costs and costs of prosecution statewide. [See SB 732, January 9, 2012 here]. There is a huge problem when any legislative body enacts criminal laws without considering the constitutional rights of it's citizens in the process of that enactment; or even worse, only permits a defendant to enjoy a constitutional right when it fits squarely within the monetary budget of the legislative body. There is another problem when a legislative body continually repeals, or reenacts laws, just to avoid Florida Supreme Court constitutional caselaw in place to protect a defendant's constitutional rights. [Florida is the only State in the United States where a defendant can be convicted of drug trafficking and receive a huge prison sentence for possessing drugs constructively, and without specific knowledge that they are in possession of illicit substances.] Everyone knows that the Florida Drug Statutes are unconstitutional as a violation of one's constitutional right to presumption of innocence, however, the Florida Legislature does not seem moved to repeal Florida Statute Sec. 893.101. The last consideration to repeal Florida Statute Sec. 893.101, as a part of SB 732, January 9, 2012, "died in budget" in 2012. [This is one example of the Florida Legislature's attempt to give a drug trafficking defendant back a constitutional right that was wrongfully taken away by virtue of the enactment of Florida Statutes Sec. 893.101, by repealing Sec. 893.101. But SB 732 'died in budget' committee e.g. giving back a putative defendant a constitutional right wrongfully taken away would cost the State Of Florida too much.] Florida Statute Sec 893.101 is, and always was, the poster child for a violation of a defendant's 5th Amendment rights. Unless and until a Federal Court gets subject matter jurisdiction to rule on the constitutionality of Florida's Drug Statutes, perhaps in a federal habeas corpus petition, the Florida Legislature will likely continue protect that bad law just like the ugly baby that it is.

This article is for informational and educational purposes only and should not be construed as constituting legal advice. It is intended to provoke critical thinking related to the issues presented. The opinions rendered are the opinions of the Author, a non attorney. Nothing presented in this Article should be interpreted as legal advice as any such interpretation is unintended. In fact it is not legal advice and was written by a non-attorney. You should consult with your attorney to determine the best course of action to take on your case.

Copyright 2018 All Right Reserved, by Joseph J. Pappacoda, JD, Senior Litigation Paralegal, GhostWriter Paralegal, Chartered, Fort Lauderdale, Florida

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