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Case No.

:
____________________________________________________________

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
____________________________________________________________

MARKEITH LOYD
Petitioner

v.

STATE OF FLORIDA
Respondent
_____________________________________________________________

Lower Tribunal No: 2016-CF-015738
2017-CF-000826

Ninth Judicial Circuit, Orange County Florida

__________________________________________________________________

PETITION FOR WRIT OF PROHIBITION
_____________________________________________________________

Terence Lenamon
Fla. Bar. No. 970476
245 SE 1st Street, Suite 404
Miami, Florida 33131
Phone: 305-373-9911
Fax: 305-503-6973
Email: terry@lenamonlaw.com
Counsel for Petitioner
TABLE OF CONTENTS

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

INDEX OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CITATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

BASIS FOR INVOKING JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

STATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

A WRIT OF PROHIBITION SHOULD BE GRANTED
ORDERING THE CIRCUIT COURT’S DISQUALIFICATION . . . . . 7

a. The circumstances surrounding the assignment of
Mr. Loyd’s cases to Chief Judge Lauten’s
division require disqualification. . . . . . . . . . . . . . . . . . . . . . . . . . 12

b. Chief Judge Lauten had ex parte communications with law
enforcement officers after Case No. 2016-CF-015738
was assigned to him, and after he ordered Case No. 2017-
CF-000826 to be assigned to him, and he failed to
disclose this to Mr. Loyd for nearly two years . . . . . . . . . . . . . . .14

c. The cumulative effect of Chief Judge Lauten’s
actions requires disqualification . . . . . . . . . . . . . . . . . . . . . . . . . .20

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21

CERITIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
i
INDEX OF APPENDICES

1. February 15, 2017 Indictment Case No. 2016-CF-015738
2. February 15, 2017 Indictment Case No. 2017-CF-000826
3. January 2017 Affidavits for Search Warrants
4. January 2017 Authorizations for Applications for Interception
5. January 17, 2017 Warrant
6. January 19, 2017 Weekly Report for Orlando Police Department Homicide
7. January 18, 2017 Order of Reassignment
8. April 25, 2017 Orlando Police Department Homicide Report
9. January 19, 2017 Affidavit for Arrest Warrant
10. April 20, 2017 Notice of Inventory Regarding Telephone Wiretap
11. November 27, 2018 Motions Hearing
12. November 30, 2018 Supplemental Discovery Exhibit #36
13. December 4, 2018 Defendant’s Verified Motion to Disqualify Trial Judge
14. December 10, 2018 State’s Response to Defendant’s Verified Motion to
Disqualify Trial Judge
15. December 10, 2018 Order Denying Defendant’s Verified Motion to
Disqualify Trial Judge
16. January 19, 2017 Authorization for Application for Interception

ii
TABLE OF CITATIONS
Cases

Aberdeen Property Owners Ass'n, Inc. v.
Bristol Lakes Homeowners Ass'n, Inc.
8 So.3d 469 (Fla. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 9

Atkinson Dredging Co. v. Henning
631 So.2d 1129 (Fla. 4th DCA 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Barnhill v. State
834 So.2d 836 (Fla. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Carey v. Piphus
435 U.S. 247, 262 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

Chastine v. Broome
629 So. 2d 293 (Fla. 4th DCA 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

Chillingsworth v. State
846 So.2d 674 (Fla. 4th DCA 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Crosby v. State
97 So.2d 181 (Fla. 1957) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Dickenson v. Parks
104 Fla. 577, 140 So. 459 (1932) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

Fischer v. Knuck
497 So.2d 240 (Fla.1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

Frengel v. Frengel
880 So.2d 763 (Fla. 2d DCA 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16

In re Henderson
22 So.3d 58 (Fla. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 19

In re Murchison
349 U.S. 133 (1955) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7, 10
iii
Kielbania v. Jasberg
744 So.2d 1027 (Fla. 4th DCA 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 14

Livingstone v. State
441 So.2d 1083 (Fla. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Love v. State
569 So.2d 807 (Fla. 1st DCA 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15

Marcotte v. Gloeckner
679 So.2d 1225 (Fla. 5th DCA 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Marshall v. Jerrico, Inc.
446 U.S. 238 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

Martin v. State
804 So.2d 360 (Fla. 4th DCA 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Michaud-Berger v. Hurley
607 So.2d 441 (Fla. 4th DCA 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Mistretta v. United States
488 U.S. 361 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

Offutt v. United States
348 U.S. 11 (1954) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

Pearson v. Pearson
870 So.2 248 (Fla. 2d DCA 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

Rose v. State
601 So.2d 1181 (Fla. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16, 20

Siegel v.State
861 So.2d 90 (Fla. 4th DCA 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

State v. McClain
572 So.2d 23 (Fla. 4th DCA 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16
iv
State v. Steele
348 So.2d 398 (Fla. 3d DCA 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

State ex rel. Brown v. Dewell,
131 Fla. 566, 179 So. 695 (1938) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

State ex rel. Davis v. Parks
141 Fla. 516, 194 So. 613 (1939) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

State ex rel. Mickle v. Rowe
100 Fla. 1382, 131 So. 3331 (1930) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

Suarez v. Dugger
527 So. 2d 191 (Fla. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

Taylor v. Hayes
418 U.S. 488 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

Other Authorities

Fla. Stat. § 38.02 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Fla. Stat. § 38.10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Fla. Stat. § 934.09 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19

Fla. R. App. Proc. 9.100 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

Fla. R. App. Proc. 9.030. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Fla. R. Jud. Admin. 2.330 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1, 8

Florida Code of Judicial Conduct, Canon 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19

Florida Code of Judicial Conduct, Canon 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . .1, 17

v
I. INTRODUCTION

Pursuant to Rule 9.100 and 9.030, Petitioner Markeith Loyd respectfully

petitions this Court for a writ of prohibition restraining the Honorable Frederick

Lauten, Chief Judge of the Circuit Court of the Ninth Judicial Circuit in and for

Orange County, Florida, from presiding as the judge in this matter.

This petition follows the denial of a timely filed motion for disqualification

where Mr. Loyd established that he is fearful that he will not receive a fair trial, or

that he will suffer prejudice or bias from the court. This petition is premised on the

Florida Rules of Judicial Administration, Florida Statutes, and the Florida Code of

Judicial Conduct, all of which require that a judge disqualify himself once the

defendant has established a reasonable fear that he will not obtain a fair hearing.

See Fla. R. Jud. Admin. 2.330; Fla. Stat. §§ 38.02, 38.10; Fla. Code Jud. Conduct,

Canon 3.

II. BASIS FOR INVOKING JURISDICTION

This Court has original jurisdiction to issue writs of prohibition pursuant to

Article V, section 4(b)(3) of the Florida Constitution, and under Rule 9.100 and

Rule 9.030(b) of the Florida Rules of Appellate Procedure. Prohibition is the

proper remedy to test the validity of the denial of a motion for the disqualification

of a judge. See Pearson v. Pearson, 870 So.2 248, 248-250 (Fla. 2d DCA 2004).

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III. STATEMENT OF THE FACTS

Markeith Loyd is facing multiple charges of first-degree murder and related

offenses. If convicted of at least one count of first-degree murder, he faces the

possibility of a death sentence.

On December 13, 2016, Sade Dixon was shot and killed, and her unborn

child died, as a result. Markeith Loyd is presently charged with these murders via

indictment in Case No. 2016-CF-015738. Appendix, Tab 1.

On January 9, 2017, Sergeant Debra Clayton of the Orlando Police

Department was shot and killed. Mr. Loyd is presently charged with this murder

via indictment in Case No. 2017-CF-000826. Appendix, Tab 2.

After Sgt. Clayton‟s death, a massive search including hundreds of law

enforcement officers from local, state, and federal agencies was undertaken in an

attempt to locate and arrest Mr. Loyd. On January 17, 2017, at approximately 7pm,

Mr. Loyd was arrested and taken into custody. During the course of the arrest, Mr.

Loyd suffered serious injuries to his head, which caused him to lose his eye after

being kicked and struck repeatedly by the police.

Frederick Lauten is the Chief Judge of the Ninth Judicial Circuit in and for

Orange County, Florida. Beginning on January 9, 2017, and until January 19, 2017,

Chief Judge Lauten was the only judge utilized by local police in obtaining

2
warrants related to the instant cases. During that time he reviewed numerous

affidavits for search warrants detailing both the Dixon and Clayton homicides, and

he signed the corresponding warrants. Those occurred on January 9, 10, and 17,

2017. Appendix, Tab 3.

Unbeknownst to Mr. Loyd until recently, Chief Judge Lauten also reviewed

numerous affidavits and applications requesting authorization for wiretaps, and

Chief Judge Lauten signed the corresponding orders authorizing the requested

wiretaps. Those occurred on January 11, 13, 15, and 19, 2017. These applications

targeted family and friends of Mr. Loyd, and Mr. Loyd himself was named

specifically as a target in certain applications and warrants (including the January

19 application and order). As a result of these orders, communications between Mr.

Loyd and others were intercepted by law enforcement officers. Appendix, Tab 4,

Tab 16. Mr. Loyd was not informed of these wiretap applications, affidavits, and

warrants until late November 2018. On January 17, 2017, Chief Judge Lauten

issued a warrant for a pen register and a trap and trace device for Mr. Loyd‟s

phone. Appendix, Tab 5. Again, Mr. Loyd was not informed of this warrant and

the application for warrant until late November 2018. Per the wiretap orders, Chief

Judge Lauten also received at least one weekly report regarding the wiretaps. This

report included transcriptions of phone conversations of various persons that

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occurred between the dates of January 11 – 17, 2017. This includes recorded

conversations of Mr. Loyd. Appendix, Tab 6, pg. 227, 233-237.

On January 18, 2017, the Administrative Judge for the Criminal Division of

the Ninth Judicial Circuit issued an order in Mr. Loyd‟s first case, Case No. 2016-

CD-01573-A-O (the murder of Sade Dixon and her unborn child) stating:

THIS CAUSE having come to be heard before this Court on its
own motion and this Court, as Administrative Judge of the Circuit
Criminal Division, having determined that it is in the interest of
justice to assign murder cases on a rotating basis, and this Court being
fully advised in the premises, it is therefore
ORDERED AND ADJUDGED that the Clerk of the Court
shall assign case number: 2016-CF-01573-A-O to Division 99. All
future proceedings will be heard in Division 99.

Appendix, Tab 7. Chief Judge Lauten presides over Division 99.

The aforementioned January 19, 2017, application and affidavit requesting

authorization to intercept telephonic communications specifically sought to

intercept communications for the telephone number 407-793-7288, known to be

Mr. Loyd‟s phone number. On that same date, Chief Judge Lauten signed an order

authorizing the requested wiretap. This order also retroactively approved and

authorized interceptions that began on January 17, 2017, as “an exigent

interception of communications . . .” Appendix, Tab 16, pg. 473. Orlando Police

Department Detective Michael Moreschi, the affiant for the wiretap affidavits, later

confirmed that the 407-793-7288 was known to be Mr. Loyd‟s phone. Appendix,
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Tab 8, pg. 258. As with all the other wiretap material, Mr. Loyd was not informed

of the particular wiretap application, affidavit, or warrant until late November

2018.

Also on January 19, 2017, Chief Judge Lauten reviewed an affidavit for

arrest warrant for Mr. Loyd. The affidavit was sworn before Chief Judge Lauten,

and the judge issued the corresponding warrant. Appendix, Tab 9.

As noted, it wasn‟t until November 2018 that Mr. Loyd learned of the

above-described wiretaps. In November 2018, while defense counsel was

investigating Mr. Loyd‟s cases, it was discovered that wiretap notices were

provided to some of Mr. Loyd‟s friends and family members at some point in

2017. On November 20, 2018, Mr. Loyd filed a motion to compel production of

the wiretap notifications sent to his friends and family members. Subsequently,

defense counsel obtained a copy of a letter sent by the Orlando Police Department

to Jacqueline Hoilie. The letter, dated April 20, 2017, was a Notice of Inventory

regarding a telephone wiretap. The letter identified Chief Judge Lauten as the

person that authorized the wiretap, and it also listed Mr. Loyd as one of the parties

whose communications were targeted. Appendix, Tab 10.

On November 27, 2018, Chief Judge Lauten held a hearing on numerous

pending motions in Mr. Loyd‟s cases. During this hearing, Chief Judge Lauten

5
explained that he had previously (presumably in January 2017) directed the

Administrative Judge to assign Mr. Loyd‟s cases to him. Judge Lauten stated:

I don't really think I'm obligated to disclose this, but you raised it, and
I'm comfortable sharing it with you.

There were administrative discussions within the court about how the
impact that a case of this size would have on a judge handling a full
docket of other cases, and I talked to the administrative judge in
criminal, Judge Lisa Munyon, about the impact it would have and
decided that I would take the case because I don't have that kind of
docket, although I have a lot of responsibilities as chief judge. And so,
after conversation with the administrative judge in circuit criminal
about the impact of this case, I decided just send it to me and had her
enter the administrative order to transfer it to me. It was done for
efficiency and so that the other judges in the circuit could operate a
full caseload while this case was pending. So that's how this case
ended up with me.

Appendix, Tab 11, pg. 292-293.

At the November 27, 2018, hearing, the State acknowledged that there was a

discovery violation concerning the wiretap materials. Appendix, Tab 11, pg. 287.

All wiretap material, including applications, affidavits, and orders discussed herein

were not disclosed to Mr. Loyd until Friday, November 30, 2018, nearly two years

after the Mr. Loyd was charged with multiple counts of first degree murder. Tab

12.

On December 4, 2018, Mr. Loyd filed a timely motion for disqualification of

the trial court. Appendix, Tab 13. In the motion, Mr. Loyd argued that

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disqualification was required for a number of reasons, including the inconsistency

between the explanation given in the administrative order reassigning Mr. Loyd‟s

case and Chief Judge Lauten‟s own explanation as to why the case was transferred

to him, as well as other actions taken by Chief Judge Lauten, such as his numerous

communications with law enforcement concerning the wiretap warrants, and his

failure to ensure that Mr. Loyd received timely notice of those communications.

Appendix, Tab 13. On December 10, 2018, the State filed a response to the motion

to disqualify. Appendix, Tab 14. On December 10, 2018, Chief Judge Lauten

entered an order denying the motion for disqualification. Appendix, Tab 15.

IV. STANDARD OF REVIEW

Whether a motion to disqualify a judge is legally sufficient is a matter of law

that is reviewed by the appellate court de novo. Barnhill v. State, 834 So.2d 836,

843 (Fla. 2002); Aberdeen Property Owners Ass'n, Inc. v. Bristol Lakes

Homeowners Ass'n, Inc., 8 So.3d 469, 472 (Fla. 2009).

V. ARGUMENT

A. A WRIT OF PROHIBITION SHOULD BE GRANTED ORDERING
THE CIRCUIT COURT’S DISQUALIFICATION

An impartial tribunal free from bias or prejudice is a fundamental

requirement of due process. See In re Murchison, 349 U.S. 133, 136-137 (1955).

Due process guarantees the right to a neutral, detached judiciary in order “to
7
convey to the individual a feeling that the government has dealt with him fairly, as

well as to minimize the risk of mistaken deprivations of protected interests.” Carey

v. Piphus, 435 U.S. 247, 262 (1978). Rules of law are meaningless unless they are

administered and applied by a fair court. The “legitimacy of the Judicial Branch

ultimately depends on its reputation for impartiality and nonpartisanship.”

Mistretta v. United States, 488 U.S. 361, 407 (1989).

The Due Process Clause entitles a person to an impartial and
disinterested tribunal in both civil and criminal cases. This
requirement of neutrality in adjudicative proceedings safeguards the
two central concerns of procedural due process, the prevention of
unjustified or mistaken deprivations and the promotion of
participation and dialogue by affected individuals in the decision
making process. The neutrality requirement helps to guarantee that
life, liberty, or property will not be taken on the basis of an erroneous
or distorted conception of the facts or the law. At the same time, it
preserves both the appearance and reality of fairness, generating the
feeling, so important to a popular government, that justice has been
done, by ensuring that no person will be deprived of his interests in
the absence of a proceeding in which he may present his case with
assurance that the arbiter is not predisposed to find against him.

Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980) (citations and quotation marks

omitted).

A litigant may file a motion to disqualify a trial judge where he fears that he

will not receive a fair trial or hearing due to a judge‟s prejudice or bias. Fla. R. Jud.

Admin. 2.330(d)(1). “Disqualification is ordinarily required in any situation where

the facts are reasonably sufficient to create a well-founded fear in the mind of the
8
moving party that he will not receive a fair trial.” Martin v. State, 804 So.2d 360,

362-363 (Fla. 4th DCA 2001) (citing Fischer v. Knuck, 497 So.2d 240, 242

(Fla.1986)). The disqualification rules require judges to avoid even the appearance

of impropriety:

It is the established law of this State that every litigant, including the
State in criminal cases, is entitled to nothing less than the cold
neutrality of an impartial judge. It is the duty of the court to
scrupulously guard this right of the litigant and to refrain from
attempting to exercise jurisdiction in any manner where his
qualification to do so is seriously brought into question. The exercise
of any other policy tends to discredit and place the judiciary in a
compromising attitude which is bad for the administration of justice.
Crosby v. State, 97 So.2d 181 (Fla. 1957); State ex rel. Davis v. Parks,
141 Fla. 516, 194 So. 613 (1939); Dickenson v. Parks, 104 Fla. 577,
140 So. 459 (1932); State ex rel. Mickle v. Rowe, 100 Fla. 1382, 131
So. 3331 (1930).

State v. Steele, 348 So.2d 398, 401 (Fla. 3d DCA 1977).

A party does not need to prove actual prejudice. Aberdeen Property Owners

Ass'n, Inc. v. Bristol Lakes Homeowners Ass'n, Inc., 8 So.3d at 472. “In

determining whether the allegations are sufficient, the facts alleged must be taken

as true and must be viewed from the movant's perspective. The inquiry focuses on

whether the defendant may reasonably question a judge's impartiality rather than

whether the judge perceives she is able to act fairly and impartially.” Siegel v.State,

861 So.2d 90, 92 (Fla. 4th DCA 2003) (citation omitted); See Livingstone v. State,

441 So.2d 1083, 1086 (Fla. 1983) (“It is not a question of how the judge feels; it is
9
a question of what feeling resides in the affiant's mind and the basis for such

feeling.”) (quoting State ex rel. Brown v. Dewell, 131 Fla. 566, 573, 179 So. 695,

697–98 (1938)).

The basic premise for disqualification is that “[j]ustice must satisfy the

appearance of justice.” Atkinson Dredging Co. v. Henning, 631 So.2d 1129, 1130

(Fla. 4th DCA 1994) (quoting Offutt v. United States, 348 U.S. 11, 14 (1954)). This

dictate must be followed even if there is a lack of actual bias or prejudice. This is

the case “even though this „stringent rule may sometimes bar trial by judges who

have no actual bias and who would do their very best to weigh the scales of justice

equally between contending parties.‟ ” Atkinson, 631 So.2d at 1130 (quoting In re

Murchison, 349 U.S. at 136). Thus, the disqualification rule demands

disqualification with the appearance of bias just as readily as with actual bias. See,

e.g., Kielbania v. Jasberg, 744 So.2d 1027, 1028 (Fla. 4th DCA 1997) (“even

though there is no evidence of actual bias, we find that recusal is necessary to

satisfy the appearance of justice.”); Marcotte v. Gloeckner, 679 So.2d 1225, 1226

(Fla. 5th DCA 1996) (“Though the trial judge in the instant case may not have

been biased as a matter of fact, that is of no moment because … the appearance of

justice proscribes the trial judge from continuing, even though the record may be

10
void of any actual bias or prejudice on her part.”) (citation and quotation marks

omitted).

The United States Supreme Court has explained that in deciding whether a

judge cannot preside over a litigant‟s trial:

the inquiry must be not only whether there was actual bias on
respondent‟s part, but also whether there was such a likelihood of bias
or an appearance of bias that the judge was unable to hold the balance
between vindicating the interests of the court and the interests of the
accused. Such a stringent rule may sometimes bar trial by judges who
have no actual bias and who would do their very best to weigh the
scales of justice equally between contending parties, but due process
of law requires no less.

Taylor v. Hayes, 418 U.S. 488, 501 (1974) (citations and quotation marks omitted).

In a capital case, the courts “should be especially sensitive to the basis for

the fear, as the defendant‟s life is literally at stake, and the judge‟s sentencing

decision is in fact a life or death matter.” Chastine v. Broome, 629 So. 2d 293, 294

(Fla. 4th DCA 1993). The circumstances of the instant case are of such a nature

that they are “sufficient to warrant fear on [Mr. Loyd‟s] part that he would not

receive a fair hearing by the assigned judge.” Suarez v. Dugger, 527 So. 2d 191,

192 (Fla. 1988).

11
a. The circumstances surrounding the assignment of Mr. Loyd’s cases to
Chief Judge Lauten’s division require disqualification1

In the State‟s response to Mr. Loyd‟s motion to disqualify, it claims that the

wording of the order assigning Mr. Loyd‟s case to Chief Judge Lauten “makes

clear” that the reassignment to the chief judge “was to help reduce the workload on

the other judges of the Ninth Circuit.” Appendix, Tab 14, pg. 425. Despite the

State‟s assertion, the order does no such thing. The order makes no mention or

implication whatsoever that it was entered for the purposes of reducing the

workload on other judges of the Ninth Circuit. The order simply states that the case

was being reassigned because it was in the interest of justice to assign murder

cases on a rotating basis. Appendix, Tab 7. Moreover, the order does not state that

the case was being reassigned to Chief Judge Lauten on the basis of Chief Judge

Lauten‟s own instructions. Instead, the order incorrectly states that the issue of

reassignment came “before this Court on its own motion.” Ibid.

Thus, the explanation given in the order regarding the reassignment of Mr.

Loyd‟s case (it is in the interest of justice to assign murder cases on a rotating

basis) is directly at odds with the reason for the reassignment according to Chief

Judge Lauten (that he directed the administrative judge to reassign the case to him

1
Although the order only assigns Case No. 2016- CF-015738 to Chief Judge
Lauten, his explanation for how the case was assigned to his division makes clear
that he directed for both cases to be assigned to him.
12
for “efficiency” and in order to allow other judges in the circuit to "operate a full

caseload while this case was pending.” Appendix, Tab 11, pg. 293.

The fact that a substantial gulf exists between the language of the order and

Chief Judge Lauten‟s explanation for the reassignment isn‟t the only troubling

aspect of this issue. A related and disconcerting matter is that it took approximately

22 months for Chief Judge Lauten‟s explanation to come to light. Assuming Chief

Judge Lauten‟s claims to be accurate, nearly two years elapsed before Mr. Loyd

became aware that of how his cases ended up before Chief Judge Lauten. For this

entire time, Mr. Loyd had no idea whatsoever that the presiding judge in his case

personally intervened in the process of assigning cases in order to transfer the case

to his own division.

Further, Chief Judge Lauten‟s decision to assign Mr. Loyd‟s case to his own

division is itself unsettling. The chief judge assigned to himself two of the highest

profile murder cases in Orange County; these cases have received enormous

pretrial media exposure, with countless TV reports and newspaper and internet

articles discussing Mr. Loyd‟s cases. Curiously, Chief Judge Lauten has decided

to send Mr. Loyd‟s cases to his own division, but he has not done so with all other

capital murder cases which haven‟t received such high levels of media attention.

13
When a judge chooses to assign a case to his own division, it undermines

confidence in the judiciary‟s procedures, which in turn undermines confidence in

the judiciary‟s purported neutrality. A judge shouldn‟t be able to pick and choose

which cases to preside over, and potentially affect outcomes in these cases in the

manner he sees fit. A trial court should have no stake in the cases pending before

it. But when a judge steers a case to his own division, this gives the impression that

he has some interest in what happens in that case. This needlessly weakens the

integrity of the judiciary.

The unusual circumstances described herein give the impression that

something is amiss concerning Chief Judge Lauten‟s assignment of Mr. Loyd‟s

cases. These circumstances give rise to a reasonable fear that Mr. Loyd will not

receive a fair trial before the trial court. “A judge must avoid

all impropriety and appearance of impropriety.” In re Henderson, 22 So.3d 58, 64

(Fla. 2009) (quoting Florida Code of Judicial Conduct, Canon 2). Even if there

may be no specific evidence of actual bias or prejudice, “recusal is necessary to

satisfy the appearance of justice.” Kielbania v. Jasberg, 744 So.2d at 1028.

b. Chief Judge Lauten had ex parte communications with law enforcement
officers after Case No. 2016- CF-015738 was assigned to him, and after
he ordered Case No. 2017-CF-000826 to be assigned to him, and he
failed to disclose this to Mr. Loyd for nearly two years

14
Regarding Chief Judge Lauten‟s communications with law enforcement

concerning the issuance of warrants, the most disconcerting issue isn‟t simply that

Chief Judge Lauten received ex parte testimony and issued warrants before he was

assigned either of Mr. Loyd‟s cases. This is a fairly routine occurrence and isn‟t

itself dispositive. And the State correctly noted in its response to Mr. Loyd‟s

motion to disqualify that merely issuing a search warrant is not grounds for

recusal. Appendix, Tab 14, pg. 426. But Chief Judge Lauten didn‟t merely hear

testimony and issue warrants before he had Mr. Loyd‟s cases sent to his division.

He also considered testimony and issued warrants even after he knew that he

would be the presiding judge over Mr. Loyd‟s cases, which is significantly more

troubling. “[A] judge should not engage in any conversation about a pending case

with only one of the parties participating in that conversation.” Rose v. State, 601

So.2d 1181, 1183 (Fla. 1992) (emphasis original).

“Ex parte communications concerning a matter before the court violates the

concept and appearance of impartiality and may rise to the level which would

require disqualification of a trial judge.” Love v. State, 569 So.2d 807, 810 (Fla. 1st

DCA 1990). “The appearance of justice is as important as justice itself.” State v.

McClain, 572 So.2d 23, 24 (Fla. 4th DCA 1990).

15
Florida courts have not hesitated to reassign cases when a trial judge has

engaged in ex parte communications. See, e.g., Frengel v. Frengel, 880 So.2d 763

(Fla. 2d DCA 2004) (requiring disqualification where trial judge in custody dispute

gave her phone number and email address to the children, and failed to notify the

mother of emails that she received from the children); State v. McClain, 572 So.2d

at 24 (reversed and remanded for resentencing before a different judge where the

trial judge had ex parte communications with two witnesses prior to sentencing;

“resentencing is required to eliminate any appearance of injustice”).

The Florida Supreme Court has stated that:

Nothing is more dangerous and destructive of the impartiality of the
judiciary than a one-sided communication between a judge and a
single litigant. Even the most vigilant and conscientious of judges
may be subtly influenced by such contacts. No matter how pure the
intent of the party who engages in such contacts, without the benefit
of a reply, a judge is placed in the position of possibly receiving
inaccurate information or being unduly swayed by unrebutted remarks
about the other side's case. The other party should not have to bear the
risk of factual oversights or inadvertent negative impressions that
might easily be corrected by the chance to present counter arguments.

Rose v. State, 601 So.2d at 1183 (the court assumed the existence of ex parte

communications and found a due process violation when the defendant was not

served with a copy of the State's proposed order or given an opportunity to file

objections).

Additionally, according to the Code of Judicial Conduct:
16
(7) A judge shall accord to every person who has a legal interest in a
proceeding, or that person's lawyer, the right to be heard according to
law. A judge shall not initiate, permit, or consider ex parte
communications, or consider other communications made to the judge
outside the presence of the parties concerning a pending or impending
proceeding except that:

(a) Where circumstances require, ex parte communications for
scheduling, administrative purposes, or emergencies that do not deal
with substantive matters or issues on the merits are authorized,
provided:

(i) the judge reasonably believes that no party will gain a procedural
or tactical advantage as a result of the ex parte communication, and

(ii) the judge makes provision promptly to notify all other parties of
the substance of the ex parte communication and allows an
opportunity to respond.

Florida Code of Judicial Conduct, Canon 3 (emphasis added).

The order reassigning Case No. 2016-CF-015738 to Chief Judge Lauten‟s

division was entered on January 18, 2017. On January 19, 2017, Chief Judge

Lauten was presented with at least one application and affidavit for a wiretap. This

application and affidavit, which was authorized by the State Attorney for the Ninth

Judicial Circuit and sworn before the chief judge by Orlando Police Department

Detective Michael Moreschi, contained detailed information regarding Mr. Loyd‟s

alleged role in the deaths of Ms. Dixon and Sgt. Clayton. On that same day, the

chief judge entered an order authorizing the requested wiretap (of a phone number

known to belong to Mr. Loyd). Appendix, Tab 16, pg. 462-473. On January 19,

17
2017, Chief Judge Lauten also reviewed an application for Mr. Loyd‟s arrest, and

he subsequently issued the requested arrest warrant. Appendix, Tab 5.

Mr. Loyd wasn‟t informed of Chief Judge Lauten‟s role in reviewing and

authorizing the wiretaps (including those authorized both before and after he was

assigned Mr. Loyd‟s cases) until November 2018, approximately 22 months after

the wiretap orders were entered. Yet Chief Judge Lauten was statutorily required,

per Fla. Stat. Sec. § 934.09 to “cause to be served” on Mr. Loyd notice of the entry

of the order and other materials concerning the wiretap within 90 days after the

termination of the period of the order:

Within a reasonable time but not later than 90 days after the
termination of the period of an order or extensions thereof, the issuing
or denying judge shall cause to be served on the persons named in the
order or the application, and such other parties to intercepted
communications as the judge may determine in his or her discretion to
be in the interest of justice, an inventory which shall include notice of:

1. The fact of the entry of the order or the application.
2. The date of the entry and the period of authorized, approved, or
disapproved interception, or the denial of the application.
3. The fact that during the period wire, oral, or electronic
communications were or were not intercepted.

The judge, upon the filing of a motion, may make available to such
person or the person‟s counsel for inspection such portions of the
intercepted communications, applications, and orders as the judge
determines to be in the interest of justice. On an ex parte showing of
good cause to a judge of competent jurisdiction, the serving of the
inventory required by this paragraph may be postponed.

18
Fla. Stat. § 934.09(8)(e).

Despite the unambiguous language of § 934.09(8)(e) regarding an issuing

judge‟s obligations to provide notice to persons, such as Mr. Loyd, who were the

target of the intercepts, Chief Judge Lauten failed to “cause to be served” on Mr.

Loyd of any of the information required under 934.09(8)(e) within the allotted time

period (nor, as far as Mr. Loyd is aware, was there ever a “showing of good cause”

that serving of the inventory should be postponed). In fact, it wasn‟t until

approximately 22 months after the wiretap orders were entered that Mr. Loyd was

made aware of their existence due to defense counsel‟s investigations.

Once Chief Judge Lauten knew that he would be assigned Mr. Loyd‟s cases,

all ex parte communications with law enforcement officers concerning Mr. Loyd‟s

cases, even if only for the purposes of issuing orders or warrants, should have

ceased immediately. The failure to terminate communications, as well as the

failure to notify Mr. Loyd or cause him to be notified of such communications,

raises the specter of impropriety and gives rise to a reasonable fear that Mr. Loyd

will not receive a fair trial before the trial court. “A judge must avoid

all impropriety and appearance of impropriety.” In re Henderson, 22 So.3d at 64

(quoting Florida Code of Judicial Conduct, Canon 2). “We are not here concerned

with whether an ex parte communication actually prejudices one party at the

19
expense of the other. The most insidious result of ex parte communications is their

effect on the appearance of the impartiality of the tribunal. The impartiality of the

trial judge must be beyond question.” Rose v. State, 601 So.2d at 1183 (emphasis

original).

c. The cumulative effect of Chief Judge Lauten’s actions requires
disqualification

“[T]he cumulative effect of events occurring within a short space of time

“can cause a party to have a well-founded fear” that he will not receive fair and

impartial handling of his case.” Chillingworth v. State, 846 So.2d 674, 676 (Fla.

4th DCA 2003) (quoting Michaud-Berger v. Hurley, 607 So.2d 441, 446 (Fla. 4th

DCA 1992)). Here, Chief Judge Lauten ordered Mr. Loyd‟s cases to be assigned to

himself, the administrative order reassigning the cases provided an explanation for

the assignment that doesn‟t match with Chief Judge Lauten‟s explanation, and Mr.

Loyd wasn‟t made aware of any of this for approximately 22 months. Further,

Chief Judge Lauten had extensive communications with law enforcement

concerning wiretap warrants both before and after he ordered Mr. Loyd‟s cases

transferred to his division, and Mr. Loyd was not informed of the judge‟s role in

these wiretap warrants until approximately 22 months after they were issued. The

cumulative effect of all of this gives give to a reasonable fear that Mr. Loyd will

not receive a fair trial before the court.
20
VI. CONCLUSION

For all of the foregoing reasons, this Court should grant the Petition and

issue a Writ of Prohibition disqualifying Chief Judge Lauten from further presiding

over Mr. Loyd‟s cases.

s/Terence Lenamon
Terence Lenamon
Fla. Bar. No. 970476
245 SE 1st St.
Suite 404
Miami, FL 33131
Phone: 305-373-9911
Fax: 305-503-6973
terry@lenamonlaw.com
Counsel for Petitioner Markeith Loyd

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has

been sent via email to the Honorable Frederick Lauten, Circuit Court Judge,

Marion County, Florida at ctjasw1@ocnjcc.org, and via Email to State Attorney

Brad King at eservicemarion@sao5.org and to the Office of the Attorney General

at crimappdab@myfloridalegal.com on this 4th day of January, 2019.

s/ Terence Lenamon
Terence Lenamon

21
CERTIFICATE OF COMPLIANCE

I certify that this Petition is prepared in Times New Roman 14-point font

and complies with the font requirements of Rule 9.210 of the Florida Rules of

Appellate Procedure.

s/ Terence Lenamon
Terence Lenamon

22