December 30, 2016

Justice Perry on lingering racism in Florida and the justice system: lynching and the death penalty

James-E-C-Perry-APJustice James E.C. Perry nestled a box of mementos under his arm, pulled his black robe off the hook in his Tallahassee office overlooking a grove of live oak trees, and left his corner office in Florida’s Supreme Court for the last time two weeks ago.

Perry’s nearly eight-year career on the state’s highest court ends Friday. He is forced to retire because, at 72, he has reached Florida’s mandatory retirement age for Supreme Court justices.

The trail-blazing child of Jim Crow segregation, describes his time on the bench simply: “I kept it real,” he says with a characteristic belly laugh.

He leaves with no regrets and plenty to say. One of his last acts on the court was to author a blistering dissent in a seminal death penalty ruling last week in the case of Mark James Asay. As the court majority upheld the death penalty in dozens of cases prior to 2002, Perry declared that it was an uneven and “discriminatory” application of capital punishment and left the state’s constitutional protections to “little more than a roll of the dice.”

I no longer believe that there is a method of which the State can avail itself to impose the death penalty in a constitutional manner,” Perry wrote in a 10-page dissent.

In many ways, the proclamation was not only a parting shot at one of the most vexing issues before the court, but the culmination of a career by someone shaped in an era he calls “apartheid America” who continues to be pelted by the arrows of racism today.

“There’s a reason the people who led the nation in lynching of black people also lead in electrocutions,” Perry said in an interview with the Herald/Times. “There’s a nexus there.” Story here. 

Top photo: Associated Press; bottom: Perry on his last day in his office in the Florida Supreme Court building. He retires today. By Mary Ellen Klas

December 16, 2016

Gov. Rick Scott picks appellate Judge Alan Lawson to serve on Supreme Court

Alan LawsonGov. Rick Scott appointed C. Alan Lawson to be Florida’s next justice of the Supreme Court Friday, choosing a conservative appellate judge to leave the governor’s mark on a moderate court that has been responsible for some of sharpest defeats of his political career.

Lawson, who currently serves as the chief judge on the 5th District Court of Appeal in Daytona Beach fills the seat on the seven-member court that is being vacated by Justice James E.C. Perry, a liberal jurist who is retiring at the end of the month because he has reached the mandatory retirement age. Perry was the the fourth African-American jurist to serve on Florida’s high court. Lawson, who lives in the Orlando suburb of Winter Park, is white.

Perry, who was appointed to the bench in March 2009 by former Gov. Charlie Crist, must retire because of a state law requiring justices to retire on their 70th birthday or the end of their six-year term if they are halfway through the term. Perry turned 70 in January 2015 but his term ends Jan. 3, 2017.

Scott said he choose Lawson for his 20-year track record, his public service and because "he's not going to legislate from the bench." Our story here. 

Photo: Gov. Rick Scott choose C. Alan Lawson as the new justice of the Florida Supreme Court. From left his mother Velma Lawson, sister Laurie Cox, Gov. Scott, Alan Lawson, his son Caleb Lawson.


November 28, 2016

Rick Scott's gets three finalists for Supreme Court who have been vetted by conservative groups

James E.C. Perry

Gov. Rick Scott’s goal of reshaping the Florida Supreme Court drew closer Monday as the nominating commission controlled by the governor interviewed 11 candidates and nominated three who demonstrated they are judicial conservatives.

The Supreme Court Judicial Nominating Committee sent the governor three candidates to replace Justice James E.C. Perry, one of two blacks on the high court, from the list of six women and five men, all of whom are white. Perry, 71, is retiring from the seven-member bench on Dec. 30 because he has passed the state's mandatory retirement age of 70 for judges. The appointment will be Scott’s first to the state’s highest court.

After more than six hours of interviews, the JNC narrowed the list of candidates to three: Wendy Berger, a 5th District Court of Appeal judge, C. Alan Lawson, chief judge of the 5th District Court of Appeal in Daytona Beach, and Daniel J. Gerber, of the Orlando office of the law firm Rumberger, Kirk and Caldwell. Both Lawson and Gerber were nominated when Perry was named to the bench in 2009 by then-Gov. Charlie Crist.

The three candidates were heavily promoted by members of the Florida chapter of the Federalist Society, a conservative libertarian lawyers group many of whose members serve as the governors’ appointees to the JNC. They promote the originalist judicial philosophy promoted by the late U.S. Supreme Court Justice Antonin Scalia that adheres to the notion that interpretation of law should be based on the original meeting of the text of the statute or the Constitution at the time its enacted.

The appointment of a conservative to the seven-member bench will allow the governor to add another justice to the court's conservative minority, now comprised of Justices Charles Canady and Ricky Polston.

A former circuit court judge in Seminole County and graduate of Columbia Law School, Perry has frequently joined with the moderate members of the court's majority in several cases that have invalidated laws passed by the Republican-led Legislature and the Republican governor.

Among the defeats the court has handed Scott and the Legislature is the landmark ruling that threw out the state's congressional and state Senate redistricting plans, the Legislature’s rewrite of the death penalty statute, and a ruling this summer that invalidated the Legislature’s rewrite of the state’s workers compensation system.

Continue reading "Rick Scott's gets three finalists for Supreme Court who have been vetted by conservative groups" »

November 14, 2016

Judicial Nominating Commission to interview all applicants for Florida Supreme Court vacancy



In a conference-call meeting that took less than 4 minutes, the Florida Supreme Court Judicial Nominating Commission voted unanimously Monday morning to interview all 11 applicants for the upcoming vacancy on the state's top bench.

Thirty-minute interviews for each applicant are planned for Nov. 28.

The nominating commission has until Dec. 13 to present a short list of no more than six candidates to Republican Gov. Rick Scott, who will ultimately appoint the replacement for retiring Justice James E.C. Perry. Perry's term ends Jan. 3; he is retiring as required by law because he turned 70 years old.

MORE: Who applied for the vacancy

Nominating commission chairman Jason Unger, an attorney and managing shareholder with GrayRobinson in Tallahassee, said the 11 candidates who applied for Perry's vacancy are an increase from the previous vacancy. The last vacancy had eight applicants, he said.

Perry's retirement is the first opportunity Scott has had to name a new justice.

November 11, 2016

11 apply for Florida Supreme Court vacancy



Eleven people applied for an upcoming vacancy on the Florida Supreme Court by today's 5 p.m. deadline.

Those who applied are seeking to fill the seat of Justice James E.C. Perry -- who is retiring at the end of this year, as required by law.

The list of jurist hopefuls includes a range of legal professionals -- including an assistant U.S. attorney and several judges -- as well as one newly reelected lawmaker, state Rep. Larry Metz, R-Yalaha.

According to Jason Unger, chairman of the Florida Supreme Court Judicial Nominating Commission, the list of applicants is:

-- Wendy W. Berger

-- Alice L. Blackwell

-- Roberta J. Bodnar

-- Daniel J. Gerber

-- Bradley E. King

-- C. Alan Lawson

-- Michelle T. Morley

-- Patricia L. Strowbridge

-- Larry E. Metz

-- Sylvia A. Grunor

-- Michael Rudasill

The nominating cmmission will meet by conference call Monday morning to select which applicants they want to interview. The commission will ultimately recommend a list of three to six names to Florida Gov. Rick Scott, who will appoint the new justice.

Perry's retirement is the first opportunity Scott has had to name a new justice. Perry was appointed to the state's top bench in March 2009 by former Gov. Charlie Crist.

State law requires justices to retire on their 70th birthday or the end of their six-year term if they are half-way through the term. Perry turned 70 in January 2015; his term ends Jan. 3.

Photo credit: Scott Keeler / Tampa Bay Times

Originally posted: 12:15 p.m. Updated: 5:35 p.m.

November 09, 2016

High court seems open to Miami's plea for millions from banks for discriminatory housing loans



WASHINGTON Supreme Court justices appear receptive to Miami’s argument that it’s entitled to sue banks under federal discrimination law for the impact from racially discriminatory loans.

The case hinges on whether the 1968 Fair Housing Act, the last of the landmark civil rights laws, covers only the direct effects of discrimination or also covers indirect consequences, such as property tax losses and increased policing costs.

With a vacancy still unfilled from the death of Antonin Scalia last winter and with Justice Clarence Thomas maintaining his customary silence, the seven other justices grilled lawyers in a lively Election Day session Tuesday in which several also wondered whether the law’s protections might extend to anyone who suffers an indirect financial loss because of discriminatory mortgages.

During oral arguments, justices asked more questions of Neal Katyal, a former U.S. solicitor general who is representing the Bank of America and Wells Fargo in the case, than of Robert Peck, a Washington attorney for the city of Miami.

Chief Justice John Roberts Jr. appeared most skeptical of Miami’s claims, while Justice Elena Kagan targeted the banks’ arguments.

For more.

Read more here:

November 04, 2016

Outside money floods Rubio-Murphy race thanks to high court's Citizens United ruling

  Senate 2016 Rubio_Ordo (1)-082516

Individuals, corporations, advocacy groups and super-PACs from outside Florida are pumping money into the close Senate contest between incumbent Marco Rubio and challenger Patrick Murphy.

More than $48 million in independent expenditures, most of it from outside the Sunshine State, has been spent on the Rubio-Murphy race in which the Miami Republican has held about a 3 point lead in recent days, according to the polling average on

Only five other U.S. Senate campaigns -- in Pennsylvania, New Hampshire, Nevada, North Carolina and Ohio -- have received more money from outside their campaigns.

Every state except Nevada features incumbent GOP senators who, like Rubio, are trying to fend off Democratic challengers. Nevada's race is for an open Senate seat vacated by the retiring Senate Minority Leader Harry Reid.

Those six races will likely decide whether the Republican Party retains the Senate majority it gained in the November 2014 elections.

In addition to money contributed by outside groups, Rubio's campaign had raised $12.48 million through Oct. 19 while Murphy's campaign had raised $13.72 million, for a total of $26.2 million, according to the Federal Election Commission.

That figure combined with the independent expenditures puts an overall price tag of almost $75 million on the Rubio-Murphy Senate race.

In Florida's Senate race, outside groups have made 14 TV, media and digital ad buys totaling at least $1 million, all but one of them targeting Murphy.

The biggest buy was made by the Senate Leadership Fund on Oct. 27 for $3.16 million.

The Senate Leadership Fund, a spinoff of the American Crossroads super PAC started by former President George W. Bush senior adviser Karl Rove, has spent $81.7 million in the current election cycle.

Among all super PACs in the country, only the liberal Priorities USA Action and the conservative Right to Rise USA have spent more.

Other groups based outside Florida that have spent big against Murphy are the American Future Fund, the U.S. Chamber of Commerce, the National Republican Senate Committee and the National Rifle Association.

The only Florida-centric organization with significant expenditures opposing Murphy is the Florida First Project, a super PAC created in June on the day Rubio did an about-switch and announced he was running for Senate re-election after having declined during his earlier presidential bid.

So-called "super" political action committees are free to collect unlimited amounts of money as long as the donors' identities and the amounts of their contributions.

The flood of independent expenditures by super PACs has followed a landmark 2010 Supreme Court ruling, in a case brought by the conservative watchdog group Citizens United, that described such spending as expressions of free speech protected by the First Amendment.

However, direct contributions to political campaigns remain limited by campaign-finance law.

Photo credit: Wilfredo Lee, Associated Press










October 27, 2016

Top Guantanamo reporter sues Defense Department over staffing data

One of the country’s leading reporters on the U.S. military prison at Guantanamo Bay, Cuba, is suing the Pentagon over its delay in providing figures for staffing levels at the controversial facility.

Carol Rosenberg, a Miami Herald journalist who’s reported on the Guantánamo prison since 2002, filed suit in U.S. District Court for the District of Columbia, seeking expedited release of the data.

“I’ve been trying to examine staffing levels for years,” Rosenberg said. “The detention center used to give us precise numbers on a given day, then the Southern Command stopped them.”

For more read here.

Read more here:

October 14, 2016

Court invalidates Florida's death penalty law -- requires a unanimous jury verdict

The Florida Supreme Court ruled Friday that Florida’s revamped death penalty law was unconstitutional, declaring that death sentences must be determined by a unanimous jury and triggering the potential re-sentencing of hundreds of inmates on death row.

In a 5-2 ruling, the court ordered Gov. Rick Scott and the Legislature to try again to rewrite the law struck down by the U.S. Supreme Court in January which allowed for 10 members of a 12-member jury to impose a death sentence. The court went beyond imposing a unanimous jury, it also raised the bar in capital cases by declaring that juries, not judges, must unanimously agree on all components of the evidence relating to the death sentence.

“We...hold, based on Florida’s requirement for unanimity in jury verdicts, and under the Eighth Amendment to the United States Constitution, that in order for the trial court to impose a sentence of death, the jury’s recommended sentence of death must be unanimous,” the court majority wrote. Justices Charles Canady and Ricky Polston dissented, saying the court did not have the authority to reject the law.

The immediate effect of the ruling is that more than 40 inmates who have not completed their death penalty review must be given a new sentencing trial, any capital cases pending in Florida must be decided by a unanimous jury for the first time since the death penalty was restored in Florida in 1972, and the 385 inmates now on death row have a new legal avenue to seek another sentencing trial.

“Today’s decisions will mean that all defendants on Florida’s death row whose cases are pending on direct appeal will be entitled to new sentencing hearings unless the state can prove its heavy burden of showing beyond a reasonable doubt that the error in their cases would not have affected the jury verdicts in capital sentencing,’’ said Howard Simon, executive director of the ACLU of Florida, which joined in the case.

Stephen Harper, of the Florida Center for Capital Representation at the Florida International School of Law, said the ruling “will clearly limit the number of cases in which prosecutors seek death because the burden of proof is harder and stronger.”

This is the second time this year that Florida’s death penalty law has been held unconstitutional. In January, the U.S. Supreme Court invalidated the state’s death penalty law that allowed a judge to overrule a jury verdict and impose a death sentence. The court said that in that case, known as Hurst v. Florida, that Florida’s system was a violation of a defendant’s right to a jury trial.

Florida lawmakers responded by rewriting the state law, replacing the judge’s override and requiring a 10-12 vote of a jury to send someone to death. The law required that juries in future capital cases must agree unanimously and in writing on the aggravating factors before imposing a death sentence.

Continue reading "Court invalidates Florida's death penalty law -- requires a unanimous jury verdict " »

October 12, 2016

Former Sen. Bob Graham praises new law allowing 9/11 victims' families to sue Saudi government

NP-Saudis911-BobGrahamSpeech Teach TC-101216


Former Sen. Bob Graham played a major role in compelling the long-delayed release three months ago of a classified document showing possible ties between Saudi officials and some of the 9/11 hijackers.

Now the Floridian, who chaired the Senate Intelligence Committee when the Sept. 11, 2001, attacks killed almost 3,000 people, is hailing congressional passage and veto override of a new law allowing the victims' families to sue the Saudi government for alleged complicity.

"Several positive things are going to happen now," Graham told the Miami Herald. "The victims' families will have an opportunity for justice. And Saudi Arabia will be disabused of any idea that it has immunity from responsibility for its role in 9/11."

Fifteen of the 19 hijackers were Saudis. Several of them lived in Sarasota before the attacks and, while living there, had contacts with high-ranking Saudi officials. They also left the United States shortly before the attacks.

Graham said that even when he was head of the Senate Intelligence Committee and held a high security clearance, the U.S. government withheld information about the Saudis' ties to 9/11 from him and other members of Congress.

"But from what I know today, there is ample evidence that 9/11 would not have happened but for the assistance provided by Saudi Arabia," Graham said. "The results of that assistance was (nearly) 3,000 persons murdered, 90 percent of them Americans. And a new wave of terrorism with Saudi financial and operational support has beset the world."

The House and the Senate, by overwhelming margins in both chambers, voted last month to override President Barack Obama's veto of the bill permitting lawsuits against Saudi Arabia.

Obama said such lawsuits would expose the U.S. government to legal challenges against it for actions abroad by American armed forces. CIA Director John Brennan said lawsuits against Saudi Arabia would threaten U.S. national security.

After the Senate voted 97-1 to override Obama's veto of the measure, White House Press Secretary Josh Earnest criticized the move as "the most embarrassing thing the Senate has done since 1983," when it had overwhelmingly rejected a veto by President Ronald Reagan.

That override, however, involved a much less consequential land dispute between the government and six retired people.

Earnest last week said the law will force judges to determine whether a government sponsors terrorism, a decision properly left to the president, the State Department and U.S. national security agencies. 

"That was a piece of legislation and now a law that sought to target Saudi Arabia, a country that has not been designated a state sponsor of terrorism," Earnest said. "It does open up a scenario where you have judges at a variety of levels and a variety of different courtrooms, reaching different conclusions about whether or not another country is complicit in sponsoring terrorism.  That's not an effective way for us to confront state sponsors of terror."

The Saudi government bitterly criticized the Justice Against Sponsors of Terrorism Act, called JASTA, targeting Riyadh.

"The erosion of sovereign immunity will have a negative impact on all nations, including the United States," the Saudi Foreign Ministry said.

But a 9/11 victims advocacy group called September 11th Advocates hailed the new law.

"JASTA will keep Americans safe from terrorists and terrorist funders like the Kingdom of Saudi Arabia by setting a strong deterrent in holding the Kingdom accountable for its funding and logistical support of terrorist group," the group said Tuesday.

Despite Saudi claims since 9/11 that it is going after radical Islamic citizens, Graham said the changes have been minor.

"What I don't think they've changed is their Wahhabist commitment to the extreme form of Islam, which has served as the primary motivation for thousands of people to adopt jihad as their life goal," he said.

Graham, who retired from the Senate in January 2005 after three terms, said the Obama administration and that of President George W. Bush likely could have prevented Congress from allowing suits against Saudi Arabia.

The U.S. government should have released more information about possible Saudi ties to 9/11, Graham said, and it could have negotiated a settlement enabling the Saudi government to pay victims of the tragedy.

As an example, Graham cited the 2008 deal in which Libya agreed to pay $2.7 billion to the families of 270 people killed in the bombing of Pan Am Flight 103 two decades earlier, in exchange for the dropping of U.S. sanctions.

"It was self-inflicted," Graham said. "The Bush and Obama administrations could have avoided JASTA if they had negotiated with Saudi Arabia through diplomatic channels and if they had voluntarily made more information available about responsibility for 9/11."

Photo credit: Tim Chapman, Miami Herald