Discovery of public records in capital cases.

• Author: Eaton, O.H., Jr.
• Position: Florida

Litigation in a death penalty case does not end when the judgment and sentence of death are affirmed by the Supreme Court of Florida. The next phase of litigation in these cases falls under the general heading of "postconviction relief." It is during this phase that death row defendants litigate matters "collateral" to the judgment and sentence that could not have been raised on appeal. Issues such as competence of defense trial counsel, voluntariness of a guilty plea, and "actual innocence" claims through scientific evidence such as DNA comparisons are examples of claims brought by motions for postconviction relief.

The lawyers who represent death row inmates in postconviction matters are referred to as "collateral counsel." These lawyers practice in one of the most stressful areas of the law. They are charged with reinvestigating the case to find out deficiencies that occurred during the trial. This reinvestigation usually includes review of numerous public records that may have some bearing on the case.

The procedure governing postconviction litigation in capital cases is contained in Fla. R. Crim. P. 3.851. The procedure to obtain public records for use in postconviction litigation is contained in Rule 3.852. The Supreme Court of Florida published its most recent versions of Rules 3.851 and 3.852 on September 26, 2001. Amendments to Florida Rules of Criminal Procedure 3.851, 3.852, and 3.993 and Florida Rule of Judicial Administration 2.050, 802 So. 2d 298 (Fla. 2001). The changes became effective on October 1, 2001, but do not apply to motions pending before that date. This publication is the latest in a series of rules changes governing postconviction procedure in capital cases.

Over the last several years both the Supreme Court and the legislature have made efforts to streamline the processing of postconviction motions in capital cases. These efforts have met with mixed results. For instance, the legislature passed the Death Penalty Reform Act of 2000 (DPRA) and the Supreme Court declared it unconstitutional at its first opportunity. (1) However, the legislature has provided substantive law and, more importantly, resources to allow postconviction litigation in capital cases to proceed more rapidly.

Every death row inmate in Florida has a lawyer. That statement alone is a positive comment on legislative commitment. There are three publicly funded offices of Capital Collateral Regional Counsel representing the vast majority of death row inmates. Also, there is a registry of attorneys available for appointment at public expense if Capital Collateral Regional Counsel are unable to undertake representation of a particular defendant.

Additionally, there is a legislatively created Capital Commission composed of judges and legislators that is tasked to monitor capital cases and make recommendations to the legislature on a periodic basis. (2) This commission also maintains the registry of qualified attorneys available to be appointed to represent a death row inmate if the Capital Collateral Regional Counsel cannot represent the inmate.

Collateral counsel is appointed for a death row inmate by the Supreme Court of Florida upon the issuance of the mandate affirming the judgment and sentence of death on direct appeal. (3)

Prior to 1996, collateral counsel had to file a civil action in order to obtain public records from persons or agencies other than the state attorney and local law enforcement agencies that investigated the crime. (4) This cumbersome process often required suit to be filed in several jurisdictions and delays were inevitable. The Florida Legislature enacted DPRA to streamline processing of capital cases and included a provision for the discovery of public records in the act. (5)

The procedural aspects of the statute were held to be unconstitutional in Allen v. Butterworth, 756 So. 2d 52 (Fla. 2000). In Allen, the court stated:

Next, we feel it is important to specifically address [section] 3 of the DPRA, which substantially amends [section] 119.19. Although this Court has recognized that the Legislature "has the prerogative to place reasonable restrictions" on the right of public records access, Henderson, 745 So. 2d at 326, this Court has also noted that Rule 3.852 is "a discovery rule for public records production ancillary to proceedings pursuant to Rule 3.850 and 3.851." Amendments to Florida Rules of Criminal Procedure 3.852, 754 So. 2d 640, 642 (Fla. 1999). Hence, the Legislature has the authority to define the substantive right to public records, but the adoption of time limitations and procedures governing the production of public records in capital cases is within the exclusive province of this Court. With the exception of [section] 119.19(9) (directing the Secretary of State to provide the personnel, supplies, and any necessary equipment to copy records held at the records repository), which is consistent with our proposed rules, we find that [section] 3 of the DPRA is unconstitutional, as this section attempts to regulate the procedure for public records production in capital cases.

Id. at 66. (Footnote omitted.)

The legislature created a centralized repository for storage of public records in capital cases in order to provide easy access to them. It was the legislature's hope that a process could be developed that would allow these records to be automatically sent to the repository and made accessible to counsel without the necessity of resorting to litigation.

Currently, the Secretary of State is the officer responsible for storing the records and the records repository is located in the R.A. Gray building in Tallahassee.

The location of the repository has met with general criticism because the vast majority of capital cases are filed at the opposite end of the state and air travel to Tallahassee has never been optimal. Collateral counsel may prefer to go to the local agency that maintains the records and review them there. However, the statute governing the appointment of collateral counsel restricts counsel from requesting public records except from the records repository. F.S. [section] 27.708(3) provides as follows: "(3) Except as provided in [section] 119.19, the capital collateral regional counsel or contracted private counsel shall not make any public records request on behalf of his or her client."

This statute is arguably unconstitutional because it violates the equal protection clause by prohibiting collateral counsel from obtaining public records by...