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STATE OF FLORIDA,
Plaintiff,
vs.
MARKEITH LOYD,
Defendant.
/
MOTION TO STRIKE THE TRIAL DATE AND CONTINUE IT UNTIL A TIME WHEN
THE JUSTICE ADMINISTRATIVE COMMISSION HAS FUNDING TO PAY ALL DUE
PROCESS PROVIDERS INCLUDING EXPERTS, INVESTIGTAORS, COURT
REPORTERS, AND MITIGATION SPECIALISTS
Defendant MARKEITH LOYD, through undersigned counsel, files this Motion to Strike
The Trial Date And Continue It Until A Time When The Justice Administrative Commission (JAC)
Has Funding To Pay All Due Process Providers Including Experts, Investigators, Court Reporters,
I. INTRODUCTION
Defendant is charged with three counts of first-degree murder in case numbers 2016 CF
15738 and 2017 CF 826. The 2016 case is set for trial on May 9, 2019. The State has indicated that
All death penalty cases are complex and unusual. White v. Board of County Commissioners,
537 So.2d 1376, 1378 (Fla. 1989). But the very natures of the offenses alleged here have only
complicated matters further. One case involves the purported murder of a mother-to-be and her
unborn child, the other concerns the death of a police officer. The latter, in particular, has generated
an enormous amount of ongoing, negative pre-trial publicity in local television and print media.
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There are thousands and thousands of pages of discovery to review, hundreds of witnesses
to depose and interview, and countless audio and video clips to view. These cases demand an
extensive amount of investigation for guilt and potential penalty phases of trial. Thus, in order to
provide effective representation to Defendant, undersigned counsel have necessarily retained, via
court appointment, the services of numerous state-funded due process providers, including a
mitigation specialist, investigator, mental health experts, etc. Each and every one of these providers
is absolutely essential to the defense. But as outlined below, the JAC expects to run out of money to
pay these due process providers for their services starting in late February 2019, and to be unable to
make payments on their invoices until the new fiscal year begins in July 2019. As a result, these
providers will be forced to work for long periods of time without any prospect or reasonable
II. THE STATE OF FLORIDA WILL NOT MEET ITS FINANCIAL OBLIGATIONS
FOR CRIMINAL CONFLICT CAPITAL CASES DURING THE UPCOMING
FISCAL YEAR
In Arbelaez v. Butterworth, 738 So.2d 326 (Fla. 1999), Capital Collateral Regional Counsel
(CCRC) for the northern and southern regions of Florida asked the Florida Supreme Court to
“exercise its all writs jurisdiction to stay all applicable time limits, court proceedings, and
executions until adequate funding was provided to CCRC or until July 1, 1998, the start of the next
fiscal year.” Before the Court could decide the issue directly, the funding in question “significantly
changed and increased” causing a substantial change in circumstances, thus depriving the Court of
a case or controversy to rule on. Id. at 326-327. Nearly 20 years later, the State of Florida is once
again facing a significant shortfall in funds that have been made available for representation of
On October 2, 2018, Cris Martinez, General Counsel to the JAC, issued a memorandum
(attached hereto) to the JAC Commissioners projecting an approximate $16.4 million shortfall for
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the fiscal year. Nearly $10 million of that shortfall is connected to Criminal Conflict case costs,
which includes all due process providers (experts, investigators, etc.) and related expenses. The
original appropriation for Criminal Conflict case costs for the fiscal year was set at $25,484,827.00.
The estimated expenditure for the same period is $35,459,523.00. Based on these estimates, JAC
will run out of money for due process providers by late February to mid-March 2019.
As of today, JAC is taking in excess of 4 weeks to process due process provider payments.
At that rate, those due process provider bills filed beginning in late January 2019 will not be paid
until the new fiscal year (which begins on July 1, 2019). Thus, there will be an approximate
5-month window where due process providers will not be receiving any payment for their services.
“An invoice submitted to an agency of the state or the judicial branch, required by law to be
filed with the Chief Financial Officer, shall be recorded in the financial systems of the state,
approved for payment by the agency or the judicial branch, and filed with the Chief Financial
Officer not later than 20 days after receipt of the invoice and receipt, inspection, and approval of the
goods or services, except that in the case of a bona fide dispute the invoice recorded in the financial
systems of the state shall contain a statement of the dispute and authorize payment only in the
amount not disputed.” Fla. Stat. § 215.422(1). This 20-day requirement may be waived by the
with rules and regulations of the department.” Ibid. The DFS must approve payment of the invoice
within 10 days after the agency’s filing, but this requirement may also be waived by the DFS “on a
showing of exceptional circumstances in accordance with rules and regulations of the department.”
Fla. Stat. § 215.422(2). The failure to issue a warrant of payment for undisputed amounts “within 40
days after receipt of the invoice and receipt, inspection, and approval of the goods and services”
results in the State of Florida incurring an interest penalty. Fla. Stat. § 215.422(3)(b).
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“Prompt payment is the terminology used to describe the statutory requirement to pay
obligations of the state within a period of 40 calendar days from the date the obligation is eligible to
be paid.” Justice Administrative Commission, JAC Disbursements Accounting “Hot Topics,” May
16, 2017. Starting in February 2019, the State of Florida will not live up to its obligation to provide
prompt payment to due process providers in Criminal Conflict capital cases. Once the JAC runs out
of money, there will be no other legally available sources to make these payments until the new
fiscal year.
The U.S. Supreme Court has long professed the principle that death is different: “[t]he
taking of life is irrevocable. It is in capital cases especially that the balance of conflicting interests
must be weighed most heavily in favor of the procedural safeguards of the Bill of Rights.” Reid v.
Covert, 354 U.S. 1, 45-46 (1957) (on rehearing) (Frankfurter, J., concurring). See also Gregg v.
Georgia, 428 U.S. 153, 188 (1976) (“the penalty of death is different in kind from any other
Death penalty litigation is different in scope and kind than any other legal proceeding.
Capital defense representation is complex and specialized. See, e.g., McFarland v. Scott, 512 U.S.
849, 855 (1994) (noting the uniqueness and complexity of death penalty jurisprudence). The
responsibilities of capital defense counsel “are uniquely demanding, both in the knowledge that
counsel must possess and in the skills he or she must master.” ABA Guidelines for the Appointment
and Performance of Defense Counsel in Death Penalty Cases, Revised Edition February 2003
(herein “ABA Guidelines”), Guideline 1.1, Commentary. But no capital defense attorney is an
island entire of itself. Capital representation demands the assistance of a range of persons, including
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“Criminal cases will arise where the only reasonable and available defense strategy requires
consultation with experts or introduction of expert evidence, whether pretrial, at trial, or both.”
Harrington v. Richter, 562 U.S. 86, 106, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011). The need to
consult with experts in specialized fields is inextricably intertwined with a defense attorney's ability
to investigate and prepare for trial. See Richey v. Bradshaw, 498 F.3d 344, 362 (6th Cir. 2007)
(“[T]he mere hiring of an expert is meaningless if counsel does not consult with that expert to make
For example, due the exceeding complicated nature of modern scientific evidence, counsel
is generally incapable of conducting serious investigations into complex scientific matters (DNA
testing, ballistics evidence, etc.) without the assistance of experts. Counsel requires the assistance
of experts to ensure his ability to understand and critique the prosecution’s scientific evidence and
The possibility that a defense attorney can competently defend a capital case without the
assistance of experts is effectively non-existent. See ABA Guidelines, Guideline 4.1, Commentary
(“The prosecution commits vast resources to its effort to prove the defendant guilty of capital
murder. The defense must both subject the prosecution’s evidence to searching scrutiny and build
an affirmative case of its own. Yet investigating a homicide is uniquely complex and often involves
evidence of many different types. Analyzing and interpreting such evidence is impossible without
Hinton v. Alabama, 571 U.S. 263, 273 (2014), is an example of a capital murder case where
“the only reasonable and available defense strategy requires consultation with experts or
introduction of expert evidence.” In Hinton, “the core of the prosecution's case was the state
experts' conclusion that the six bullets had been fired from the [defendant’s] revolver, and
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effectively rebutting that case required a competent expert on the defense side.” Ibid. The
defendant’s attorney mistakenly believed that the court could not have allotted him sufficient funds
to hire an effective expert on firearms and toolmark evidence. As a result, the only firearms and
toolmark expert the attorney was able to retain to rebut the prosecution’s case was one he himself
knew to be inadequate. Id. at 267-269. Unsurprisingly, the expert proved seriously ineffective at
trial. The Court held that the “trial attorney's failure to request additional funding in order to replace
an expert he knew to be inadequate because he mistakenly believed that he had received all he could
get under Alabama law constituted deficient performance.” Id. at 274. Hinton is just one instance of
a case where the use of qualified expert witnesses is utterly necessary for criminal defendants.
The Court further described the invaluable and indispensable role that experts play in
Indeed, we have recognized the threat to fair criminal trials posed by the potential
for incompetent or fraudulent prosecution forensics experts, noting that “[s]erious
deficiencies have been found in the forensic evidence used in criminal trials.... One
study of cases in which exonerating evidence resulted in the overturning of criminal
convictions concluded that invalid forensic testimony contributed to the convictions
in 60% of the cases.” This threat is minimized when the defense retains a competent
expert to counter the testimony of the prosecution's expert witnesses. . .
The Florida Supreme Court has also recognized the need for counsel to engage with experts
in capital cases. The Court has held that an attorney’s performance can be constitutionally deficient
based on the failure to hire experts to assist in conducting reasonable investigations. See, e.g., State
v. Fitzpatrick, 118 So.3d 737 (Fla. 2013) (granting new trial in death penalty case where trial
counsel’s performance was deficient when he failed to retain and consult with forensic experts who
could have challenged the State’s evidence); Ibar v. State, 190 So.3d 1012 (Fla. 2016) (granting
new trial in death penalty case where trial counsel’s performance was constitutionally deficient
because he failed to retain a facial identification expert to challenge the State’s identification
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evidence).
The same principle concerning the indispensability of forensic experts in capital cases holds
true for mitigation specialists and experts, as well. In Ake v. Oklahoma, 470 U.S. 68 (1985), the U.S.
Supreme Court reversed a death sentence and remanded for a new trial where the trial court denied
the defendant’s request for a psychiatrist to perform a mental health evaluation. The Court held that
when a defendant’s sanity at the time of the offense will be a significant factor at trial, due process
requires the state to provide him “access to a competent psychiatrist who will conduct an
appropriate examination and assist in evaluation, preparation, and presentation of the defense.” Id.
at 83.
And on multiple occasions the Court has reversed death sentences where counsel was
ineffective for failing to investigate and present mitigating evidence. See, e.g., Williams v. Taylor,
529 U.S. 362, 395 (2000) (the defendant was denied the right to effective counsel when his attorney
failed to introduce evidence of his “nightmarish childhood”); Wiggins v. Smith, 539 U.S. 510, 535
(2003) (death sentence reversed where counsel didn’t discover or introduce evidence of the
defendant’s childhood privation, abuse, sexual assaults, homelessness, and diminished mental
capacities); Rompilla v. Beard, 545 U.S. 374, 391-392 (2005) (death sentence reversed where
counsel was ineffective for failing to introduce evidence of the defendant’s childhood and mental
illness); Porter v. McCollum, 558 U.S. 30, 43 (2009) (death sentence reversed where counsel failed
to investigate and present evidence including the defendant’s childhood history of physical abuse,
“Thus, Ake and Wiggins [as well as Williams, Rompilla, and Porter] together stand for the
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The Florida Supreme Court has vacated numerous death sentences because trial counsel was
ineffective for failing to investigate and present mitigating evidence. See, e.g., Phillips v. State,
608 So.2d 778 (Fla. 1992); Rose v. State, 675 So.2d 567 (Fla. 1996); Hurst v. State, 18 So.3d 975
(Fla. 2009); Parker v. State, 3 So.3d 974, 985–86 (Fla. 2009); Salazar v. State, 188 So.3d 799
(Fla. 2016).
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following propositions: (1) upon a preliminary showing, an indigent criminal defendant is entitled
to expert assistance where such assistance is necessary to marshal an adequate defense; and (2) at
least in the capital context, counsel's failure to pursue expert assistance that may generate
Revitalization of Ake: A Capital Defendant's Right to Expert Assistance, 60 Okla. L. Rev. 283, 300
(2007). But the mitigating evidence necessary for a capital defense can only be obtained through the
ABA Guidelines, Guideline 4.1, Commentary. The U.S. Supreme Court has deferred to ABA
standards as guides to determining what is reasonable. Wiggins v. Smith, 539 U.S. at 524; Rompilla
The foregoing illustrates that defense counsel’s ability to provide constitutionally effective
representation in death penalty cases requires consultation with specially-trained experts who will
assist in preparing and presenting the defense’s case. Therefore, it is wholly impossible for
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undersigned counsel to prepare the instant cases for trial without the continued and unhindered
The U.S. Supreme Court “has long recognized that when a State brings its judicial power to
bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the
defendant has a fair opportunity to present his defense. This elementary principle, grounded in
significant part on the Fourteenth Amendment's due process guarantee of fundamental fairness,
derives from the belief that justice cannot be equal where, simply as a result of his poverty, a
defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his
In Ake, an indigent defendant who was charged with murder asked the trial court to approve
financial provisions to allow the defendant to obtain a psychiatrist to conduct a mental health
examination. The trial court denied the request, and the defendant was found guilty at trial and
sentenced to death. Id. at 72. The State of Oklahoma argued on appeal that to provide the defendant
with the requested psychiatric assistance “would result in a staggering burden to the State.” Id. at
78. The Court explained that, “The State's interest in prevailing at trial—unlike that of a private
litigant—is necessarily tempered by its interest in the fair and accurate adjudication of criminal
cases. Thus, also unlike a private litigant, a State may not legitimately assert an interest in
maintenance of a strategic advantage over the defense, if the result of that advantage is to cast a pall
on the accuracy of the verdict obtained. We therefore conclude that the governmental interest in
denying [the defendant] the assistance of a psychiatrist is not substantial, in light of the compelling
interest of both the State and the individual in accurate dispositions.” Id. at 79.
The Court later noted that in a case such as Ake’s, the absence of a mental health expert may
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be devastating to the defense, but the assistance of such an expert might enable a defendant a
reasonable chance of success. “In such a circumstance, where the potential accuracy of the jury's
determination is so dramatically enhanced, and where the interests of the individual and the State in
an accurate proceeding are substantial, the State's interest in its fisc must yield.” Id. at 83. In Ake,
the Court made it clear that a state’s purported financial burden is not a legitimate excuse for
The Florida Supreme Court has also issued a number of rulings explaining the primacy of a
defendant’s constitutional rights over the state’s financial concerns. “In order to safeguard [a
criminal defendant’s] rights, it is our duty to firmly and unhesitatingly resolve any conflicts
between the treasury and fundamental constitutional rights in favor of the latter.” Makemson v.
Martin County, 491 So.2d 1109, 1113 (Fla. 1986) (holding that absolute fee maximums are
representation.”); see also White v. Board of County Commissioners, 537 So.2d at 1379
(concluding that the statute setting a cap on attorney's fees in a first-degree murder case “is
unconstitutional when applied in such a manner that curtails the court's inherent power to secure
effective, experienced counsel for the representation of indigent defendants in capital cases”);
Remeta v. State, 559 So.2d 1132, 1135 (Fla. 1990) (“courts have the authority to exceed statutory
fee caps to compensate court-appointed counsel for the representation of indigent, death-sentenced
Maas v. Olive, 992 So.2d 196, 202-203 (Fla. 2008) (“Overall, the Makemson decision strongly
suggests that a mandatory fee cap interferes with the right to counsel in that: (1) It creates and
economic disincentive for appointed counsel to spend more than a minimum amount of time on the
case; and (2) It discourages competent attorneys from agreeing to a court appointment, thereby
diminishing the pool of experienced talent available to the trial court.”) (citations and quotations
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omitted).
Over the last three decades, the Florida Supreme Court has time and again emphasized that
a defendant’s constitutional rights in criminal cases trump the State of Florida’s financial
shortcomings. Nonetheless, these very shortcomings are on full display in the JAC’s warning that it
will run out of money for Criminal Conflict cases by late-February 2019.
“[S]ince the State of Florida enforces the death penalty, its primary obligation is to ensure
that indigents are provided competent, effective counsel in capital cases.” White v. Board of County
Commissioners, 537 So.2d at 1379. Yet, he anticipated lack of funding for due process providers
In White, the Florida Supreme Court explained that “all capital cases by their very nature
can be considered extraordinary and unusual” Id. at 1378. This is certainly true of Defendant’s two
cases pending before this Court. There are thousands and thousands of pages of discovery to
review, hundreds of witnesses to depose and interview, and countless audio and video clips to view.
In addition, defense counsel are being forced to deal with an extraordinary amount of negative
pre-trial publicity. In particular, certain law enforcement officials have made numerous comments
Counsel can only effectively represent Defendant here with ongoing assistance of due
process providers. But this assistance is put at risk by the State of Florida’s failure to adequately
provide sufficient funding for these providers. “[C]ompensation of counsel and the effectiveness of
counsel are inextricably intertwined.” Florida Dept. of Financial Services v. Freeman, 921 So.2d
598, 600 (2006). “The relationship between an attorney's compensation and the quality of his or her
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representation cannot be ignored. It may be difficult for an attorney to disregard that he or she may
not be reasonably compensated for the legal services provided due to the statutory fee limit. As a
result, there is a risk that the attorney may spend fewer hours than required representing the
defendant or may prematurely accept a negotiated plea that is not in the best interests of the
defendant. A spectre is then raised that the defendant received less than the adequate, effective
representation to which he or she is entitled, the very injustice appointed counsel was intended to
The exact same thing can be said regarding compensation for due process providers.
Without adequate and reasonably assured compensation for investigators, forensic and mental
health experts, and mitigation specialists, there’s no way to ensure that these persons will continue
to effectively provide their necessary services to defense counsel. Without a guarantee of ongoing
assistance of due process providers, capital counsel cannot guarantee their ability to provide
adequate representation to Defendant in the instant cases. This creates an untenable situation that
significantly risks undermining Defendant’s Sixth Amendment right to counsel. This can only be
remedied by continuing the trial in these cases until such a time as JAC will have sufficient funds
for all due process providers in these cases. “A reliable system of justice depends on adequate
funding at all levels. Obviously, this means adequate funding for competent counsel during trial …
including access to thorough investigators and expert witnesses.” Allen v. Butterworth, 756 So.2d
WHEREFORE, Defendant requests that this Court grant the continuances of trial as requested
above.
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing motion was served via
Efiling notification on the Office of the State Attorney and JAC this 14th day of November 2018.
Respectfully Submitted,
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