Friday, July 13, 2007


The Florida Supreme Court reversed the denial of a Rule 3.850 motion and ordered a new trial for Merrit Sims, who was prosecuted for killing Miami Springs Officer Charles Stafford in June of 1991 during a traffic stop.

The opinion is here: OPINION

At issue was the admissibility of a K9 alert to drugs in a car in which no drugs were found. The Prosecution was represented by Former Prosecutor Gary Rosenberg, who also ran for State Attorney in the last election. The theory of prosecution was that Sims, who was on parole, had killed Stafford because there were drugs in the car and Sims did not want his parole violated.

Sims was represented at trial by two veteran defense attorneys, Clinton Pitts, and Arthur Carter.

The holding of the case is that Pitts was ineffective for failing to object at trial to the introduction of the testimony of the K9 officer. Judge Carney had previously ruled that the testimony was admissible, and Pitts testified at the evidentiary hearing that he was surprised he had not objected at the time the testimony was introduced.

Rumpole says: First off, trials are difficult businesses, and the defense of a person alleged to have killed a police officer is as difficult as it gets. No negative aspersions should be cast against Mr. Pitts. Sometimes, in the heat of battle, lawyers neglect to do what they need to do. By that we mean that often times several things are occurring at once: the lawyer is listening to the testimony, listening to his client, reviewing his notes, and otherwise trying to think two steps ahead of the other side. While the issue is technically framed as "ineffective assistance of counsel" the record otherwise indicates that Mr. Pitts and Carter did a very good job in defending their client.

The real issue we think is this ridiculous concept of preserving the objection at trial after a pre-trial motion was denied. The record is clear that Mr. Pitts argued against the introduction of this evidence prior to trial. The mere fact that Pitts either didn't object ( or that the court reporter did not report it, which is in our opinion just as likely) should not have stopped this issue from being litigated during the direct appeal. If that was done, then this matter would not have to be reopened 16 years after Officer Stafford was murdered.

See You In Court, objecting, objecting, objecting.


abe laeser said...

I just love Rule 3's.

They represent job security.

Or do you think that Sims was convicted because of a K-9 dog?

the trialmaster said...

the real problem is that the prosecutor used overkill and never should have tried to introduce the "drug sniff" evidence as it was irrelvant to the murder charge. further,the odor of cocaine is found on 95% of the currency and the so called alert means nothing as the case law has developed. and a good cross on this issue would have taken the sting out of the direct testimony.clinton is a good trial lawyer and has probably tried more murder cases than anyone. it appears that he fell on the sword for his then client.and carney never should have permitted the evidence in the first place . too bad for the officers family to have to go through this again.

Anonymous said...

I have read that the number one cause of death for inmates on death row is old age. Now know why.

Anonymous said...

Excellent post. I couldn't agree more. Well done.

Anonymous said...

The motion to exclude should be prima facie evidence of objection unless the attorney at trial expressly manifests that he no longer has an onjection to the evidence or testimony previously sought to be excluded. (Sometimes in the vagaries of trial, the evidence you wanted to exclude before now comes in handy to be used against the state)

Anonymous said...

Clinton Pitts is one of the finest lawyers I have ever known- a gentleman, a fighter, always willing to try the tough case.

Hasn't the Rule been amended, so that now a trial objection is no longer required to preserve an objection where the judge has made a definitive pretrial ruling on the issue? Would have been nice for the Court to have noted that in its opinion.

David S Markus

Anonymous said...

on the subject of court reporters why don't they tape record & video tape and have a court reporter in court all at the same time.

at any NFL game the ref can go back and review the tape and change a ruling we cant have this in high profile murder cases?

Anonymous said...

It will be interesting to see if three members of the 11th Circuit JNC whose commissions expired on July 1, think they are still members of the JNC and participate in the selection of the nominees to replace Princess Chris. Those ex-members are: G. Dorta, N. Rodriguez-Pedrosa and T. Gamba. Hmmm, all hispanic. Will they act illeaglly? Do they think they are above the law? Do they believe themselves indispensable? Could a change in the balance of power be coming? Stay tuned boys and girls.

Hey Daily Business Review and Miami Herald, are you going to the interviews to see if this happens? Are you ready to expose this abuse, if it occurs?

Anonymous said...


Anonymous said...

While I appreciate that some lawyers like yourself (and Sy Gaer) do not prefer to take depositions, I'm from the "be prepared" school of practice and I'll take a deposition every time to: (1) learn what the witness is going to say; and to (2) lock the witness in to their statement. If that means more work for me, so be it. I am of the firm belief that a better prepared lawyer is a better lawyer.


Thursday, July 12, 2007 9:00:00 AM

I agree that in a State that allows depos in criminal cases why not use the tool and lock a witness into a set of facts especially if you know the client is innocent. Perhap I might think twice if I know the client is guilty but again why not LOCK IN A VERSION OF EVENTS no surprises at trial?

Take the depo charge the fees and lock in the story.

Anonymous said...

D. S. Markus is defending ineffective lawyers. Gotta love this city.

Anonymous said...

who is the judge in the sims retrial?

Anonymous said...

Rump- your censorship is beyond comprehension. you are turning into a synchphant for the judiciary. nothing improper about the comment about scola- she IS without a doubt one of the handful of most disliked judges- she is nothing more than a prosecutor with a black robe on- like rothenberg and miller.

Rumpole said...

7:43- there is a way to say you Dont like Judge Jackie Scola and you just did it. There is a way not to say it, and you did that before. You can post all you want about your views of her as a Judge- your views of her family life are not relevant nor permissible here.

Rumpole said...

Speaking of moderation, I did not post another comment. The lawyer you made fun of for having a drug problem has never denied it. He will speak freely about it and does so in open court. Be a man and make fun of him to his face, and not a coward by ridiculing the fact he has an addiction that he fights, successfully I may add, every day.

CAPTAIN said...


The Merritt Sims case is now before Judge Lawrence Schwartz...

On a separate note, a total of 29 candidates have filed to run for Circuit Court Judge so far; 21 incumbents and eight newcomers. The interesting point of this is - North of the Border - not a single person - incumbent or challenger has filed yet for the September 2008 election.

Same thing in County Court, where four incumbents and one challenger have filed in Dade - and none have filed in Broward.

The more things change - (the Broward Blog) - the more they stay the same!!!

CAPTAIN OUT .............

Anonymous said...

"D. S. Markus is defending ineffective lawyers. Gotta love this city."

sign your name you fing coward!!


Anonymous said...

RUMP you are way off on when you right that "it does take a long time to prepare a serious case". sorry rumpis but there is no case that should take more than 18 months to prepare. how is it that in fed court lawyers prepare cases whose complexity dwarfs even a death penalty case and try them in under a year.

cant you admit it that you and your brethern in the defense bar dealys cases not because you are overworked or the cases are complex becuase delay itself is an effective tactic? most intellectually honest defense attorney (i know this excludes you) admit this.

Rumpole said...

Pay me 250K, take all my other cases off my hands, and I can get ready on the most complex trial you could imagine in 6 months tops. But...since we live in the real world, I have an office, staff, employees, clients, cases in various stages of readiness, and because of that it takes time to get ready on a new big case. And no, I am not in a position to turn down cases because I am too busy. I am just busy enough to need the work while having enough to do. That puts me in the class of probably 95% of other defense attorneys that are otherwise qualified to handle serious cases.

old guy said...

9:49 smartass:

Did you ever try a death case? When the state has 200 witnesses, you better depose them all. Think I am wrong, just check the Rule 3.850 reversal in today's paper - and the lawyer thought he did it all correct.

Then we have to gather the family and mental evidence - and try to save the life of some pretty bad guys.

FEDS? No discovery, no depositions, trial by ambush? Sure, those can go fast - if your client is in a hurry to start his prison sentence. Thankfully, at least my clients do not videotape the crimes - which is half the evidence in most federal cases nowadays.

Death is different. Even the Feds take 2-3 years to prepare for a death case -- and they never even got one death penalty in a Florida case.

Maybe some more smarts would do you some good, or the experience of actually losing a client to Old Sparky. You never really forget.

Anonymous said...

old guy sounds like a defense attorney bitter at the fact that the wheel wont be paying him 150k a year to wank off on cases where everyone knows that in the end the state will waive death

Anonymous said...

The alert by police K-9 doesn't matter. What this article fails to include is that Simms was in a STOLEN CAR. So Simms knowing
A) He had narcotics in the vehicle B) He was in a STOLEN CAR and
C) Would spend the next 20 years in prison if caught because he was probation for an ARMED ROBBERY
killed Stafford so he would not go to jail. He also confessed to killing him, had no injuries to support Stafford was "hurting" him and Stafford was the one who had injuries (laceration to the head from the blow caused by the radio). So does the K-9 aleart really matter when you add B and C ? Like anonymous said the number one cause of deathrow inmate deaths is old age.....Hmm.....I wonder why. Don't get me wrong here, putting someone to death is serious enough and all circumstances should be looked into before the execution of an individual. But when you give a confessed cop killer a second chance what message does that send out to criminals, cops and citizens ? The Florida Supreme Court really dropped the ball on this one

Anonymous said...

Sims admitted shooting Stafford, but asserted from the outset that he had done so in self-defense after Officer Stafford had choked him, used racial epithets and repeatedly threatened to kill him.