Bill gives prosecutors the last say in all cases

first_img December 1, 2005 Regular News Bill gives prosecutors the last say in all cases Bill gives prosecutors the last say in all cases Mark D. Killian Managing Editor A law that would rewrite a criminal procedural rule that has given the defense the last say in some cases for more than 150 years has cleared a Florida House panel.The House Criminal Justice Committee voted 8-0 November 9 to pass out HB 147, sponsored by Rep. Dick Kravitz, R-Orange Park, the committee’s chair, during one of the legislature’s interim committee weeks.If it passes both chambers by a two-thirds vote, it would replace part of Florida Rule of Criminal Procedure 3.250. That rule provides in cases where the defense calls only the defendant to testify and no other witnesses that the defense attorney gets the first closing argument, and then a rebuttal after the prosecution makes its closing argument. In other cases where the defense calls other witnesses, the prosecution gets the first and last closing arguments.The bill provides that in all criminal cases, the state attorney gets the first closing argument, the defense lawyer may reply, and the prosecutor may offer a rebuttal to the defense attorney’s closing. The issue is also now pending before the Florida Supreme Court as part of a package of proposed rule amendments.Kravitz said it was time for Florida to change which side gets the last say to conform with how it is done in 47 other states, the federal courts, and the District of Columbia.This is the third year Kravitz has sponsored the measure. An identical bill – SB 658 by Sen. Steve Wise, R-Jacksonville — has been filed in the Senate.“Since the state has the burden of proof, then it is my feeling that we should have the last shot at the jury,” Kravitz said.Rep. Marcelo Llorente, R-Miami, voted in favor of the bill, but expressed separation of powers concerns and said he is retaining “the right to change my mind” when the bill is heard again at the House Justice Council.“I would encourage the people who testified today to provide the data to support that this is a matter of substance as opposed to procedure, according to how the other states and the [federal] courts are doing it,” Llorente said. “This is a matter that concerns me a great deal—-the separation of powers issue. It came before the legislature last year and had great debate on this matter. I will look forward to hearing more about this issue at the next stop.”Kravitz cited the case of a rape victim who testified in support of the bill last session as evidence for changing the rule. The women said her attacker, whom she did not know, was able to get personal information about her from her pretrial deposition and then claim they had a relationship, and her rape claim was in retaliation for his ending it.“In [the defense’s] closing argument to the jury, they made it sound like it was somewhat consensual because he knew all about her,” Kravitz said. “And [the state] obviously did not have a chance to rebut and so the last thing the jury heard was the defendant, so he was acquitted.”One of the defense attorneys in the case, Christopher Brown, however, has said having the last say played no role in the outcome.Paula Saunders, representing the Florida Association of Criminal Defense Lawyers, spoke in opposition saying the rule has been a vested procedural right in Florida since 1853 and the only reason she’s heard for changing the rule is “that somewhere, sometime, someone felt they lost a case” because the defense got the final closing argument.“Well, I’d like to think all criminal defense lawyers have such brilliant oratory skills that we won our cases based solely on our closing arguments, but the truth is the cases are won and lost on the strengths or weaknesses of the evidence, on the credibility of the witnesses, on failures in investigations,” Saunders said. “There are a host of factors that go into winning and losing cases, not just the closing arguments of counsel.”Saunders said if the rule is changed, defense lawyers will no longer have an incentive to not put on marginal witnesses or exhibits or recall state witnesses, which will result in extending trials and clogging up already overcrowded dockets.Sixth Circuit Public Defender Bob Dillinger, representing the Florida Public Defender Association, said the rule is set up now to level the playing field.“I would submit to you when a jury walks into a criminal courtroom — even though we all learned in civics class the defendant is presumed innocent — when a jury sits down and looks at a defendant they don’t usually say, ‘What is this falsely accused person doing in this courtroom?’” Dillinger said. “They usually say, ‘What did he do?’ or ‘What is he charged with?’ That is a tremendous benefit the government has and tremendous burden for the defense to overcome in terms of presumption of innocence.”He said allowing the defense to go last in these cases protects the citizens against the immense power and resources of the state.However, Buddy Jacobs, general counsel for the Florida Prosecuting Attorneys Association, said times have changed significantly since 1853 and the “playing field” is much more level now, noting the state spends a great deal on providing counsel to indigent defendants, and private defense lawyers are highly skilled.Jacobs also noted the Third DCA in Diaz v. State urged the Supreme Court to “revisit the wisdom” of the provision.“This is something that needs to change,” Jacobs said. “It is good for victims in Florida, and it certainly is good for the system.”Kravitz said he can appreciate the opponents’ arguments because the way the rule works now benefits their clients “and that’s their job.“But when the status quo is unfair, then in my opinion it is time to change and this has became a defense tactic. . . and. . . a fairness issue,” Kravitz said. “If the people have the burden of proof, then the people should have the last shot at the jury.”last_img

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