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Judge Carney Responds To Criticism

Broward Circuit Judge Robert Carney, a former assistant state attorney who prosecuted Anthony Caravella in the 1983 trial that brought the defendant a life sentence, responded to my column critical of the process that convicted Caravella. DNA testing revealed, after Caravella had spent 26 years in prison, that the mentally deficient 15-year-old charged with murder in 1982, was the innocent.

      Judge Carney writes:

      I read your column this morning regarding the recent developments in the Anthony Caravella case. I anticipate that there will be further commentary, and I thought it important to take a moment to provide you with another perspective in the hope that this might influence you in further commentary.

      Capital cases are different. To fairly criticize the prosecution of any capital case it is important to understand exactly what makes the trial of a capital case different from other criminal trials.

      First, in capital cases the decision to charge is taken away from the prosecutor by our Constitution. A capital case can only be initiated by Grand Jury indictment. A capital case is the only criminal case that requires an indictment. This is in sharp contrast to other criminal cases where the prosecutor is the one who makes the filing decision. In a capital case the prosecutor does not make the filing decision. The prosecutor presents evidence to the Grand Jury, but the filing decision belongs exclusively to the Grand Jury.

      Nor does the prosecutor even recommend the charge. That is not the prosecutor’s function. A prosecutor only presents evidence and instructs on the law. The decision on whether or what to charge lies solely with the Grand Jury.

      The trial itself has some sharp differences as well. With the exception of capital cases, all criminal trials in Florida are held in front of a jury of six. In capital cases the number of jurors is twelve. This doubles the number of people who each must find proof beyond and to the exclusion of every reasonable doubt before the jury can return a verdict of guilty. Even the number of challenges that can be made without giving a reason during jury selection is increased from 6 to 10.

      The attorneys on both sides of a capital case tend to be more experienced as do the police detectives who handle capital cases. Florida now requires special training and qualifications for an attorney to be able to handle a capital case. No other criminal case requires certification. Even judges are now required to have special training and certification.[1]

      Additionally, judges must have minimum experience requirements before handling capital cases.

      Ordinarily, in Florida, a jury is not involved in any aspect of sentencing. In capital cases, however, unless the death penalty is waived by the state, the jury makes recommendations to the judge. If the recommendation is life, the court, for the most part, is bound by that recommendation. The judge alone imposes sentence, either life in prison or death.

      The conduct of the prosecutor is monitored by the judge at all stages of the proceedings. If the prosecutor steps out of bounds at any point, this is actionable by the trial judge and also fully reviewable by a separate appellate court. A trial judge always has the power to dismiss a case entirely or order a new trial if there is any prosecutorial misconduct.

      After trial the review does not stop. If the prosecutor or the trial judge makes errors, this is reviewable by an appellate court or, if death is imposed, by the Supreme Court. Even if there are no errors by either the prosecutor or the judge, but the level of performance of the defense attorney falls short, this, too, is reviewable by the appellate court - all to insure the fairness of the proceedings against the defendant.

      It is important to understand that because so much is at stake in capital cases, these extra safeguards are in place to protect the rights of the accused and minimize as much as humanly possible a mistaken conviction. The filing decision is taken away from the prosecutor specifically to limit any possible abuses in the exercise of the powers of that office. The number of jurors is doubled to lessen the chance of mistake. Even the judge’s powers are restricted if death is sought and a jury is permitted to encroach on sentencing decisions which is not permissible in any other criminal case.

      Yet in spite of these safeguards, the system is not perfect and, on occasion, there is a bad result. When it happens it is a stark reminder to all of us of the gravity of what we do. If an innocent person serves time for a crime he or she did not commit, this is a terrible thing and is felt deeply by all who are involved in the process.

      There is no question, the prosecutor plays a key role in any murder case, but he or she is not the only player. It is the Grand Jury that decides whether charges should be brought and what charge is appropriate. It is the trial judge who oversees the proceedings and imposes any sentence. It is the petite jury that makes the decision whether the defendant is guilty.  It is the appellate court that reviews the actions of the prosecutor, the defense attorney, the jury, and the trial judge. And throughout this, the defendant has an experienced advocate, zealously challenging the state’s case and actions every step of the way.

      There are, of course, others – police, medical examiners, forensic experts, witnesses, friends and family, and even the press to monitor the proceedings.

      If the system fails and an innocent person is convicted, the focus should be on determining, with information known at the time, what could have been done differently, why it should have been done differently, and how doing it differently would have altered the result.

      Our system is, as it should be, an evolving one. The Supreme Court mandates formal training for attorneys and judges. Professional organizations and educational programs provide prosecutors, defense attorneys, and judges additional education and training. The goal should be a constructive analysis to provide a step forward to further improve and refine our system of justice.


      Robert B. Carney

[1] The Supreme Court of Florida in 1990 directed the creation of a capital litigation course for judges. Attendance at this course became a prerequisite to handling capital cases by judges. The writer was one of several judges tasked with creating and teaching the course. The writer did so for six years.



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Licensed Attorney

Any good prosecutor could get a grabd jury to indict a ham sandwich. That old saying is cliche for a reason. It's true. As for the rest of the procedural lesson, a third of it is temporally irrelevant and the balance is specious. The man is disingenuous.

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