Saturday, 22 November 2008

Reply brief lethal injection in Florida


CASE NO. SC08-992








MARTIN J. MCCLAIN Attorney at Law Florida Bar No. 0754773 141 N.E. 30th Street Wilton Manors, FL 33334

(305) 984-8344




This proceeding involves the appeal of the circuit court's summary denial of a post-conviction motion. The following symbols will be used to designate references to the record in this appeal:

"R." -- record on direct appeal to this Court; "1PC-R." -- record on first Rule 3.850 appeal to this Court; "2PC-R." -- record on second 3.850 appeal to this Court; "3PC-R." -- record on third 3.850 appeal to this Court; "4PC-R." --record on fourth 3.850 appeal to this Court; "5PC-R." –-record on the appeal to this Court in Case No.


As to the appeal filed on October 22, 2008, the record has not yet been compiled and provided to counsel. Citations will to specific documents filed in circuit court in the Rule 3.851 proceedings.



Mr.Tompkins has been sentenced to death. The resolution of the issues involved in this action will therefore determine whether he lives or dies. This Court has not hesitated to allow oral argument in other capital cases in a similar procedural posture. Lightbourne v. State, 742 So. 2d 238 (Fla. 1999); Mills

v. State, 786 So. 2d 532 (Fla. 2001); Swafford v. State, 828 So. 2d 966 (Fla. 2002); Roberts v. State, 840 So. 2d 962 (Fla. 2002); Wright v. State, 857 So. 2d 861 (Fla. 2003). A full opportunity to air the issues through oral argument would be more than appropriate in this case, given the seriousness of the claims involved and the stakes at issue. Mr. Tompkins, through counsel, accordingly urges that the Court permit oral argument.



PRELIMINARY STATEMENT......................................... ii

REQUEST FOR ORAL ARGUMENT.................................... iii

TABLE OF CONTENTS............................................. iv

TABLE OF AUTHORITIES........................................... v

ARGUMENT IN REPLY.............................................. 1

ARGUMENT I..................................................... 1

Error One .................................................... 3

Error Two .................................................... 5

Error Three .................................................. 5

Error Four ................................................... 8

ARGUMENT II................................................... 13

CONCLUSION.................................................... 13

CERTIFICATE OF SERVICE........................................ 15

CERTIFICATE OF FONT COMPLIANCE................................ 15




Baze v. Rees, 128 S. Ct. 1520 (2008)........................... 4 Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532 (1985)........ 1 Coleman v. State, 610 So. 2d 1283 (Fla. 1992).................. 9 Ford v. Wainwright, 477 U.S. 399 (1986)........................ 1 Furman v. Georgia, 408 U.S. 238 (1972)........................ 13 Harich v. State, 573 So. 2d 303 (Fla. 1990).................... 8 Herring v. State, 580 So. 2d 135 (Fla. 1991)............. 6, 7, 8 Kokal v. State, 901 So. 2d 766 (Fla. 2005)................. 5, 10 Lightbourne v. State, 742 So. 2d 238 (Fla. 1999)............. iii Mills v. State, 786 So. 2d 532 (Fla. 2001)................... iii Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950)1 Porter v. Singletary, 49 F.3d 1483 (11th Cir. 1995)........... 11 Quince v. State, 592 So. 2d 669 (Fla. 1992).................... 8 Roberts v. State, 840 So. 2d 962 (Fla. 2002)................. iii Smith v. State, 708 So. 2d 253 (Fla. 1998).................... 12 Swafford v. State, 828 So. 2d 966 (Fla. 2002)................ iii Teffeteller v. Dugger, 676 So. 2d 369 (Fla. 1996)..... 2, 3, 5, 6 Williams v. State, 622 So. 2d 456 (Fla. 1993).................. 8 Wright v. State, 581 So. 2d 882 (Fla. 1991)................. 7, 8 Wright v. State, 857 So. 2d 861 (Fla. 2003).................. iii

Other Authorities

ABA Report on Florida......................................... 13



Fed. R. Civ. Pro. 19........................................... 9

Fed. R. Civ. Pro. 20........................................... 9

Fed. R. Civ. Pro. 23........................................... 9




In his Initial Brief in this appeal, Mr. Tompkins set forth

the following summary of his first argument:

1. Mr. Tompkins was deprived of his due process rights of notice and opportunity to be heard and to present evidence on his challenge to Florida’s lethal injection procedures. The judge and the prosecutor had ex parte communication, and the judge had decided to deny an evidentiary hearing before allowing counsel to argue. Mr. Tompkins’ challenge was filed before the second part of the evidentiary hearing in Lightbourne
v. McCollum had started. Even though Mr. Lightbourne was given an opportunity to be heard and present evidence on his challenge to the lethal injection procedures, Mr. Tompkins was denied that right when the circuit court erroneously ruled that this Court’s decision in Lightbourne required the claim to be summarily denied.

(Initial Brief at 14-15).

Within the text of Argument I of his Initial Brief, Mr.

Tompkins set forth:

The touchstone of due process is notice and reasonable opportunity to be heard. The right to due process entails "‘notice and opportunity for hearing appropriate to the nature of the case.’" Cleveland Bd.of Ed. v. Loudermill, 470 U.S. 532, 542 (1985), quotingMullane v. Central Hanover Bank & Trust Co., 339 U.S.306, 313 (1950). "[F]undamental fairness is thehallmark of the procedural protections afforded by theDue Process Clause." Ford v. Wainwright, 477 U.S. 399,424 (1986)(Powell, J., concurring in part andconcurring in the judgment). The deprivation of this bedrock due process right is structural error that can be no more harmless that the denial of the right to trial by jury.

(Initial Brief at 25). Upon the bedrock due process right to

notice and a reasonable opportunity to be heard, Mr. Tompkins’


argument rested.

Mr. Tompkins set forth a specific case from this Court in

which this bedrock due process right was found violated in the

Rule 3.850 procedure that had been followed in circuit court and


This Court relied upon this basic due process guarantee in Teffeteller v. Dugger, 676 So. 2d 369(Fla. 1996). There, several cases were consolidated in front of one judge for evidentiary hearing. At issue in these cases was the impact upon a capital defendant’s right to effective and conflict-free representation at trial when the particular public defender assigned as counsel was a card carrying special deputy sheriff. At the consolidated proceeding, the joined capital defendants were present in court with counsel for the some of the testimony. However, large portions of the proceedings were conducted with only one defendant and his counsel in the courtroom. This Court found that capital post-conviction movants were entitled to be present with counsel for the entirety of their own separate evidentiary hearing on the individual claim,even though each defendant’s claim was premised upon common factual allegations concerning the special deputy status that was enjoyed by the public defender.Under Teffeteller, due process requires each Rule

3.851 movant to a separate evidentiary hearing at which he can be present, be represented by counsel and present evidence in support of his claim while confronting any evidence presented by the State.Because the failure to provide due process in this fashion is structural error, this Court in Teffeteller did not look to whether the error was harmless before ordering the cases all remanded and separate evidentiary hearings to be conducted in each defendant’s case.

(Initial Brief at 25-26).

In its Answer Brief, the State does not address Teffeteller

v. Dugger or the United States Supreme Court cases set forth by

Mr. Tompkins as holding that the touchstone of due process is


notice and a reasonable opportunity to be heard. An examination

of the Table of Authorities set forth in the Answer Brief reveals

that no United States Supreme Court decisions appear in the

State’s brief.1 The examination also shows that there is no

reference in the Answer Brief to Teffeteller v. Dugger.

Within the text of the argument as to Issue I appearing in

the Answer Brief, only one paragraph of the ten pages devoted to

the issue references "due process". This paragraph provides:

Tompkins apparently asserts that since he did not participate in the Lightbourne evidentiary hearing, due process requires that he be given an individual hearing to litigate the constitutionality of lethal injection.If Tompkins is correct, there is no issue in the law or fact no matter how well settled that would not entitle a defendant to an evidentiary hearing. As this Court has recognized, due process in post-convictionproceedings only requires "that the defendant be provided meaningful access to the judicial process."Kokal v. State, 901 So. 2d 766, 778 (Fla. 2005). There is no authority to suggest that an evidentiary hearing must be held any time a defendant asserts a claim, particularly when the issue sought to be litigated has been repeatedly rejected as a ground for relief. In this case, as in most death warrant proceedings, the defendant has been afforded process far beyond what is due under the United States Constitution.

(Answer Brief at 14-15)(unrelated footnote omitted).

Within this one paragraph numerous errors are made. They

will be addressed in turn.

Error One

First, Mr. Tompkins does NOT argue that "there is no issue

Citation to two opinions from this Court note the denial of certiorari review by the United States Supreme Court.


in the law or fact no matter how well settled that would not

entitle a defendant to an evidentiary hearing." (Answer Brief at

14). It is well settled that questions of law do not warrant

evidentiary hearings, and Mr. Tompkins does not argue otherwise.

In his Initial Brief, Mr. Tompkins made the scope of his

argument quite clear:

It is important to recognize that a lethal injection challenge involves first a resolution of factual issues, and then second the application of the legal standard, which was most recently enunciated in Baze v. Rees, 128 S. Ct. 1520 (2008). When this Court affirmed the decision in Lightbourne, a case heard over ten days, this Court employed the standard of review requiring it to give difference to the circuit court’s findings of fact. As result, this Court’s ultimate decision affirming was premised upon whether there was competent and substantial evidence to support the circuit court’s ruling. Certainly, a different judge hearing disputed evidence could reach different factual conclusions that would produce a different final result. In another words, the decision in Lightbourne rests upon factual findings. It cannot be divorced from the facts that were found by the circuit court and relied upon by this Court in affirming.

Similarly, the decision in Baze produced a legal standard. The United States Supreme Court explained the standard by which the facts demonstrated at an evidentiary hearing were to be measured. It is not a decision that applies in a vacuum. It requires the trier of fact to make findings to which the standard is applied to determine whether an Eighth Amendment violation has been demonstrated. As a result, neither Baze nor Lightbourne constitute a ruling that no matter what facts are found by the trier of fact, Florida’s lethal injection procedure is constitutional.

(Initial Brief at 24-25). Thus, Mr. Tompkins argued that where

his claim is premised upon disputed facts, he is entitled to an

opportunity to present witnesses and exhibits at an evidentiary



Error Two

The State cited Kokal v. State, as somehow narrowing of the scope the due process right because it "only requires ‘that the defendant be provided meaningful access to the judicial process.’" (Answer Brief at 14)(emphasis added). The context of the quote from Kokal shows that the issue raised there concerned a capital defendant’s right to effective representation in collateral proceedings. There was no question of fact to be resolved; no need for an evidentiary hearing. All that was at issue there was whether, as a matter of law, there was a right to effective collateral counsel included within the meaning of due process. This Court held in Kokal that due process did not guarantee effective representation; unless complete abandonment by counsel was shown, due process was not violated. Kokal v. State, 901 So. 2d at 778.

This Court did not address in Kokal whether the right to a reasonable opportunity to be heard as set forth by the United States Supreme Court included the right to present evidence on disputed questions of fact where the facts as alleged demonstrated a basis for relief. Instead, this Court addressed that issue in Teffeteller v. Dugger, a case cited by Mr. Tompkins in his Initial Brief which was not discussed or even cited by the State in the Answer Brief.

Error Three


In the paragraph from the State’s Answer Brief quoted above, the State asserts that "[t]here is no authority to suggest that an evidentiary hearing must be held any time a defendant asserts a claim, particularly when the issue sought to be litigated has been repeatedly rejected as a ground for relief." (Answer Brief at 14-15). However, Teffeteller v. Dugger, the case cited by Mr. Tompkins, provides such authority.

There, as noted by Mr. Tompkins in his Initial Brief, a number of capital defendants who had been represented at trial by the same public defender argued that the public defender’s status as a special deputy sheriff constituted a conflict of interest. Each defendant’s claim was premised upon the same disputed factual issue: What exactly was the public defender’s status with the sheriff’s office? In Teffeteller, one consolidated evidentiary hearing had been held in which the four appellants had participated.2 As the dissenting justice in Teffeteller noted, the evidentiary hearing had been required by an earlier opinion by this Court in which it suggested a consolidated hearing may be appropriate. The prior decision was Herring v. State, 580 So. 2d 135 (Fla. 1991). There, this Court held:

With regard to Herring's public defender's service as a

2In fact, there had been even more Rule 3.850 movants who hadbeen consolidated into the evidentiary hearing. Besides Mr.Teffeteller, Mr. Quince, Mr. Herring, and Mr. Randolph (thenamesd appellants in Teffeteller), the hearing included Joel DaleWright, Robert Dale Henderson, and a non-capital defendant.


special deputy, we hold that due process principlesrequire an evidentiary hearing. In Harich v. State, 542 So. 2d 980 (Fla. 1989), we found that this same publicdefender's service as a special deputy was sufficientto require an evidentiary hearing on the issue ofwhether his relationship to law enforcement officialsaffected his ability to provide effective legalassistance. After the evidentiary hearing in Harich, the trial judge made detailed findings of fact anddenied relief. We affirmed the trial judge, holdingthat the fact that this public defender was a specialdeputy in an adjacent jurisdiction, particularly giventhe circumstances of the duties and status of such deputy sheriff, did not result in a per se conflict of interest. Harich v. State, 573 So. 2d 303 (Fla. 1990).

The trial judge in this case concluded that it was notnecessary to duplicate the evidentiary hearingregarding this issue because he had previously madefactual findings on this identical issue in Harich. We find that due process principles do not allow the trialjudge to adopt factual findings made in a prior caseinvolving a different defendant, even though itconcerns the same issue. Herring must be afforded anopportunity to present evidence and examine and cross-examine witnesses on this issue. Although we recognizethat the evidence presented may be duplicative, dueprocess requires that Herring be afforded anopportunity for a hearing on this matter. If otherdefendants raise this same claim, however, we find thatit would be proper for the chief judge to consolidatethe cases for one hearing on this single issue.

Herring v. State, 580 So. 2d 138-39.

On the basis of Herring, this Court reversed and ordered an

evidentiary hearing on the same issue in Wright v. State, 581 So.

2d 882 (Fla. 1991). There, this Court stated:

With regard to Wright's claim of conflict due to hispublic defender's service as a special deputy, we find,as we did in Herring v. State, 580 So. 2d 135 (Fla.1991), that due process principles require anevidentiary hearing. While it may seem to be a totalduplication of effort, it is clear that the trial judgein this case cannot adopt the factual findings of atrial judge in a different case involving a different


defendant, even though those findings concern the sameissue. While we might prefer to resolve this issuedifferently for judicial administration purposes,Wright must be afforded an opportunity to presentevidence and examine and cross-examine witnesses on this issue. As we stated in Herring, the chief judgemay consolidate this case with other cases in whichdefendants make this identical claim.

Wright v. State, 581 So. 2d at 886.3

So even though this Court had affirmed the denial of relief following an evidentiary hearing in Harich v. State, 573 So. 2d 303 (Fla. 1990), other capital defendants with the same claim premised upon the same disputed factual allegations were entitled to evidentiary hearings. Thus, the State’s assertion here is simply wrong.

Error Four

In above quoted paragraph, the State also erroneously stated that Mr. Tompkins "has been afforded process far beyond what is due under the United States Constitution." (Answer Brief at 15). Besides Teffeteller, Herring, Wright and Quince, the due process right to be heard and contest factual issues is well recognized in contexts beyond a criminal collateral proceeding. In cases in which more than one defendant is charged with criminal activity and/or criminal conspiracy, each defendant is entitled to his own trial unless the cases are consolidated. For example, in Williams

v. State, 622 So. 2d 456, 459 (Fla. 1993), Mr. Williams received

3Based upon Herring and Wright, this Court also reversed andremanded Quince v. State, 592 So. 2d 669 (Fla. 1992).


his own separate trial even though others had already been convicted of having been sent by Mr. Williams to commit murder. The other defendants in the case had been joined for trial. Though there was one trial for three defendants, each was present and represented by counsel. Coleman v. State, 610 So. 2d 1283 (Fla. 1992).

Similarly in the civil context, the resolution of a factual issue is not binding upon one who was not a party to the litigation. This can be seen in the rules of federal procedure setting forth the procedures to be followed where joinder is required or permitted. See Fed. R. Civ. Pro. 19, 20. It can also be seen in the requirements for the certification of a class action. See Fed. R. Civ. Pro. 23.

If the State had wanted to protect Mr. Tompkins’ due process rights, an effort to join or certify that Mr. Lightbourne adequately represented a class of Rule 3.851 movants was necessary. However, that was not done here. In fact, just the opposite occurred. When the all writs petition was filed in the Lightbourne case, it was filed not just on the behalf of Mr. Lightbourne, but on the behalf of a large number of capital defendants, including Mr. Tompkins. On February 9, 2007, this Court issued an order in Case No. SC06-2391, the all writs proceeding, in which it dismissed all of the petitioners besides Mr. Lightbourne out of the case without prejudice. This Court’s order specifically stated:


Other than petitioner Lightbourne, all of thepetitioners' claims are dismissed. The dismissal iswithout prejudice to the petitioners' filing any claimwhich they may have in the appropriate court for thatindividual petitioner. This Court has made no decisionas to the validity of the claims raised and whetherthose claims are timely or otherwise barred. If apetitioner files a claim, the court in which the claimis filed shall treat the claim as if it had initiallybeen filed in that court.

Order of February 9, 2007, Case No. SC06-2391.4 Pursuant to that order, Mr. Tompkins filed his Rule 3.851 motion with his lethal injection claim in circuit court as soon as the circuit court reacquired jurisdiction after this Court affirmed the denial of his previous Rule 3.851 motion.

The State includes a string citation to cases which have affirmed the summary denial of Rule 3.851 claims on the basis of this Court’s affirmance of the denial of relief in Lightbourne (Answer Brief at 17). In not one of those decisions did this Court address Mr. Tompkins’ due process argument. The law of this Court is very clear that issues that are not timely raised are waived. Jones v. Butterworth, 701 So. 2d 76, 78 (Fla. 1997). Since this Court did not address the due process issue in any of those string cited case, there is no indication that the issue was raised. As a result, those case are not on point. Certainly

4As a result of this Court’s order, Mr. Tompkins was not a partyin the Lightbourne proceedings. He was not present and notrepresented by counsel. Under the meaning of due process at issuein Kokal, Mr. Tompkins was deprived of due process. The absenceof counsel representing him in those proceedings is the same as"abandonment" within the meaning of Kokal.


other defendants are entitled to waive their due process rights. Just because they did, in no way means that Mr. Tompkins must also waive his right to due process.

Finally, the State addressed the ex parte discussion between the presiding judge and the prosecuting attorney that occurred prior to the case management hearing in February of 2008. As to this ex parte contact, the State writes:

It is unclear why Tompkins asserts that an improper ex

parte communication occurred between the trial court

and a prosecutor during the case management conference.

To the extent Tompkins is attempting to raise a

separate due process claim based upon the ex parte

communication, this claim is barred on appeal because

it was not raised below.

(Answer Brief at 15).5 Of course, conveniently overlooked by the State, is the fact that the party excluded from ex parte contact is unaware that it has occurred until someone who was there apprises him. See Porter v. Singletary, 49 F.3d 1483 (11th Cir. 1995)(litigants are entitled to assume that judges have complied with the code of judicial conduct and not investigate for misconduct until a specific basis for such an investigation is present). In this instance, neither the judge nor the State advised either Mr. Tompkins or his counsel what occurred while

5It is striking that here as to this ex parte contact constituting a due process violation the State remembers thisCourt’s case law that the failure to raise a due processchallenge procedurally bars this Court from considering it; yetwhen string citing the affirmances of the denial of Rule 3.851claims on the basis of Lightbourne, the State seems blissfullyignorant of the procedural bar rules.


the matter was pending in circuit court. It was not until after

Mr. Tompkins received the supplemental record on appeal which

included the transcript of proceedings on February 21, 2008, that

counsel learned of the ex parte contact. As this Court is well

aware, a number of extensions of time were granted while the

court reporter delayed the production of this transcript. In

fact, the supplemental record which included this transcript was

not prepared until October 3, 2008, and was not received by

counsel until October 6, 2008.6 Thus, Mr. Tompkins has raised it

before this Court as soon as possible. If it is the State’s

position that the issue must be first litigated in circuit court,

Mr. Tompkins would have no objection to a remand to get the facts

as to this issue. See Smith v. State, 708 So. 2d 253 (Fla. 1998).

As it is, Mr. Tompkins was deprived of due process when the

6The State cites in its Answer Brief to the proceedings on Mr.Tompkins’ subsequent Rule 3.851 motion to the subject of theappeal in Case No. SC08-1979. No explanation is provided by theState as to how proceedings in that case are relevant as towhether the ex parte contact on February 21, 2008, violated Mr.Tompkins’ right to due process.

Moreover as should be clear, neither Mr. Tompkins nor hiscounsel learned of the ex parte contact until after October 6,2008, when the supplemental record was received. By that time,this Court had ordered counsel to pursue any circuit courtmotions first before briefing the current case to this Court.Accordingly, counsel focused on filing another Rule 3.851 motionbefore preparing the Initial Brief in Case No. SC08-992. It wasnot until October 23, 2008, that counsel read the transcript fromFebruary 21, 2008, and learned of the ex parte contact. This was after he had filed the notice of appeal in Case No. SC08-1979. Ifthe State wishes to stipulate that this was error and the judgeshould have been recused from the proceedings at issue in Case


circuit court denied him an evidentiary hearing on a fact based claim after the circuit court engaged in ex parte contact and on the basis of factfinding following an evidentiary hearing in another case to which Mr. Tompkins was not a party.


The State asserts that Mr. Tompkins’ has "offered nothing compelling, or, for that matter, even slightly persuasive" in Argument II of his Initial Brief. (Answer Brief at 23). The repeated ex parte contact that has occurred in the history of his case, and the disregard of his due process rights are beyond dispute. It is precisely this kind of arbitrariness that was at issue in Furman v. Georgia and which the ABA Report identified as once again infecting the Florida capital process. The fact that the State does not find the conduct troubling in the least, and continues to repeat the misconduct, makes it clear that arbitrariness will continue infecting the capital process in Florida until its presence is taken seriously and efforts to eradicate it are undertaken.


For the reasons stated herein and in his Initial Brief, Mr. Tompkins requests that this Court grant the relief specifically sought in his arguments.

No. SC08-1979, Mr. Tompkins would have no objection to a reversaland remand in that matter.

13 ____________________________

MARTIN J. McCLAIN Florida Bar No. 0754773 Special Assistant CCRC-South141 N.E. 30th Street Wilton Manors, FL 33334

(305) 984-8344

NEAL DUPREE CCRC-South 101 N.E. Third Avenue Fort Lauderdale, FL 33301

(954) 713-1284

Counsel for Mr. Tompkins

14 ____________________________ ____________________________


I HEREBY CERTIFY that a true copy of the foregoing has been furnished by U.S. Mail, postage prepaid, to Scott Browne, Assistant Attorney General, Department of Legal Affairs, 3507 Frontage Road, Suite 200, Tampa, FL 33607 on October _____, 2008.



The undersigned counsel hereby certifies that this brief complies with the font requirements of rule 9.210(a)(2), Fla. R. App. P.



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