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Filing # 80820491 E-Filed 11/14/2018 10:03:14 PM


CASE NUMBERS: 2016 CF 15738 A
2017 CF 826




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,

and Mitigation Specialists, and in support of this motion states:


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

it intends to seek the death penalty if it obtains a first-degree murder conviction.

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.

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

guarantee of payment for their services.


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

defendants in capital cases.

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

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

Department of Financial Services (DFS) “on a showing of exceptional circumstances in accordance

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).

“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

punishment imposed under our system of criminal justice.”).

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

investigators, forensic and mental health experts, mitigation specialists, etc.

“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

an informed decision about whether a particular defense is viable.”).

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

witnesses (i.e., to actually participate as an adversary).

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

consulting experts – whether pathologists, serologists, microanalysts, DNA analysts, ballistics

specialists, translators, or others.”).

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

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

criminal cases when it stated:

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. . .

Hinton, 571 U.S. at 276 (citations and quotations omitted).

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


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,

brain abnormality, and difficulty reading and writing).1

“Thus, Ake and Wiggins [as well as Williams, Rompilla, and Porter] together stand for the

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).

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

mitigation evidence constitutes ineffective assistance of counsel.” Cara H. Drinan, The

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

use of expert and specialized assistance:

A mitigation specialist is also an indispensable member of the defense team
throughout all capital proceedings. Mitigation specialists possess clinical and
information-gathering skills and training that most lawyers simply do not have.
They have the time and the ability to elicit sensitive, embarrassing and often
humiliating evidence (e.g., family sexual abuse) that the defendant may have never
disclosed. They have the clinical skills to recognize such things as congenital,
mental or neurological conditions, to understand how these conditions may have
affected the defendant’s development and behavior, and to identify the most
appropriate experts to examine the defendant or testify on his behalf. Moreover, they
may be critical to assuring that the client obtains therapeutic services that render him
cognitively and emotionally competent to make sound decisions concerning his

Perhaps most critically, having a qualified mitigation specialist assigned to every
capital case as an integral part of the defense team insures that the presentation to be
made at the penalty phase is integrated into the overall preparation of the case rather
than being hurriedly thrown together by defense counsel still in shock at the guilty

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

v. Beard, 545 U.S. at 387.

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

undersigned counsel to prepare the instant cases for trial without the continued and unhindered

assistance of due process providers.


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

liberty is at stake.” Ake v. Oklahoma, 470 U.S. at 76.

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

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

depriving a defendant access to necessary expert assistance.

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

“unconstitutional when applied to cases involving extraordinary circumstances and unusual

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

prisoners in executive clemency proceedings when necessary to ensure effective representation”);

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


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

will substantially undermine Defendant’s constitutional right to meaningful and effective

representation in the instant cases.

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

to the press that may harmfully influence potential jurors.

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

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

remedy.” White v. Board of County Commissioners, 537 So.2d at 1380.

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

52, 67 (Fla. 2000).

WHEREFORE, Defendant requests that this Court grant the continuances of trial as requested



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,

s/Teodoro Marrero Jr. s/Terence M. Lenamon
Teodoro Marrero Jr., Esq. Terence M. Lenamon, Esq.
Marrero Law Firm, P.A. Lenamon Law, PLLC
Florida Bar No. 818127 Florida Bar No. 970476
100 North Orange Ave. 245 S.E. 1st St.
Suite 300 Suite 404
Orlando, FL 32801 Miami, FL 33131
p. 407-459-1226 p. 305-373-9911
f. 407-9154137 f. 305-503-6973