As a lawyer (or human being), you don’t want to hear that you were ineffective. Maybe you know it, but you don’t want to hear it. And when four justices of your state’s supreme court seem to imply that you were ineffective, and two write that you were, it’s probably one of those days where you imagine what life would be like had you gone to medical school. That’s what happened at the Florida Supreme Court on Thursday in Leo Louis Kaczmar’s case.
Back in January, the Florida Supreme Court affirmed Kaczmar’s death sentence. The jury recommended the death penalty 12-0. But as Justice Pariente pointed out in her January dissent, the jury “was bereft of any meaningful presentation of mitigation.”
Second time’s a charm?
It wasn’t Kaczmar’s first death sentence. The Florida Supreme Court vacated his first in 2012 because the evidence didn’t support one of the aggravating factors, CCP (“cold, calculated, and premeditated”). At the first sentencing hearing, the defense presented a significant amount of mitigation evidence (that is, evidence at a sentencing hearing that demonstrates why a life sentence is more appropriate than the death sentence). The jury recommended death by an 11-1 vote, the judge imposed it, then the Florida Supreme Court sent the case back for a new penalty phase.
But at his second sentencing hearing, the defense’s mitigation evidence to the new jury was Kaczmar’s age at the time of the crime: 24. That’s all.
This was a strategic move on the defense’s part–they waived the right to present mitigation to the jury. They wanted to avoid putting Kaczmar’s family through the agonizing process of taking the stand and begging for his life again. And, pre-Hurst, this was no problem. Why go through all the trouble when the judge is making the decision anyway and can review all of the mitigation from the first trial?
After the second jury came back with a 12-0 death recommendation, the trial judge reviewed the aggravation evidence and weighed it against the mitigation evidence that was presented to the first (non-unaninimous) sentencing jury. Then the trial judge gave “great weight” to the second (unanimous) jury’s recommendation (read: the jury that didn’t hear any mitigation evidence except Kaczmar’s age), and sentenced him to death.
And then there was Hurst
In January, the Florida Supreme Court affirmed Kaczmar’s sentence because the 12-0 jury made the Hurst error harmless. Not so fast, said Justices Pariente, Quince, and Perry. Justice Pariente took the position that, while the jury was unanimous, the court shouldn’t automatically conclude the Hurst error was harmless. At least in Kaczmar’s case, to Pariente, the fact that the new jury didn’t hear mitigation should’ve taken the case out of the harmless category in the Hurst analysis. You can’t (er, shouldn’t) give “great weight” to a jury that heard half the story. Justice Perry wrote his own opinion, reasserting his position that the court isn’t performing a proper harmless error test in the Hurst cases.
So the case ended. Or so we thought.
By the way, did I mention that . . . .?
On motion for rehearing, Kaczmar’s counsel argued for the first time that the trial judge improperly told the jury that Kaczmar was sentenced to death in a previous trial but the supreme court sent it back for another round of sentencing. (You can read what the judge said and what he was supposed to say in Justice Pariente’s dissent.) That’s a no-no even under pre-Hurst case law (since at least 1996, according to Justice Pariente), and would’ve (probably) been reversible error. But counsel didn’t argue it. Or even mention it. Until rehearing.
[Note: Under the rules, you can’t raise new arguments in a rehearing motion (and expect to be successful) that weren’t presented in the briefs or at oral argument, unless the law changed in the interim. Rehearing’s supposed to address issues that you already presented but the court overlooked or didn’t address in their decision.]
Rather than accept the argument, grant rehearing, and reverse, the court issued an opinion denying rehearing “without prejudice to raise, in a separate habeas corpus proceeding alleging ineffective assistance of appellate counsel, the trial court’s error in disclosing appellant’s prior death sentence for the crime at issue to the venire, which appellate counsel raised for the first time on rehearing.”
And Justices Pariente and Quince explained why they would’ve just granted the motion for rehearing rather than go through the trouble of hearing a habeas petition, etc. To Pariente, “[n]ot raising this issue on appeal, in my view, constitutes ineffective assistance of appellate counsel that is apparent on the face of the record.”
But before you throw stones . . .
To be fair to appellate counsel, the Florida Supreme Court’s supposed to do their own independent review of the record for glaring errors. Presumably they did so and didn’t catch it, either.
And it isn’t clear that trial counsel objected to the judge’s statements to the jury. Trial counsel made the strategic decision not to present mitigation to the jury, so the defense team already wasn’t putting much stock in the jury’s perception of the case. They were focused on the judge. In a pre-Hurst context, this was was understandable. But it was still error for the judge to tell the jury that Kaczmar was already sentenced to death for the crimes.
On appeal, the briefs were in before Hurst. They weren’t too concerned about the jury because the jury was only advisory.
But then Hurst comes along and the jury becomes the most important part of the case. In their supplemental post-Hurst brief, there’s no mention of the judge’s erroneous instruction. Same in the reply brief.
Is that ineffective assistance? Now counsel’s in the situation where ineffective assistance means client gets another chance at a life sentence, but it also means potential professional ramifications, let alone public embarassment. Does counsel defend her own actions, or fall on the sword for the client?
Harmless beyond a reasonable doubt?
If anything, the case highlights the shortcomings of projecting post-Hurst responsibility on pre-Hurst juries when evaluating harmless error. The whole trial strategy would’ve been different. This is precisely former-Justice Perry’s point (scroll to page 29).
We’ll see what happens in the habeas corpus proceedings. Or will this be the U.S. Supreme Court’s opportunity to examine Florida’s harmless error approach?
Maybe SCOTUS will grant cert, reverse, and spare counsel the habeas trouble.
That’d be the day you’re glad you chose law school over med school.