Peter Avsenew is getting off death row, due to an egregious error by now retired judge Ilona Holmes. The Supreme Court ordered a new trial today. The original case took roughly thirty days to try.
Holmes is ironically currently listed as the Chair of The National Judicial College. Long time practitioners will also remember her haughtiness and absolute, frequently espoused belief that she was an expert in the rules and caselaw. Yet despite numerous reminders from defense counsel here, she refused to follow a very clear, simple rule regarding remote perpetuation of testimony of a key witness, causing a momentous, expensive, and unanimous reversal of the most serious type of case in existence.
Rule 3.190(i)(3) provides:
(3) If the deposition is taken on the application of the state, the defendant and the defendant’s attorney shall be given reasonable notice of the time and place set for the deposition. The officer having custody of the defendant shall be notified of the time and place and shall produce the defendant at the examination and keep the defendant in the presence of the witness during the examination. (emphasis added)
From the opinion:
However, proceeding with the testimony—despite Ms. Avsenew’s inability to see Avsenew—violated rule 3.190(i)(3). The failure to ensure that Avsenew was kept in the presence of Ms. Avsenew during her testimony (in this case, her “virtual” presence) constituted a clear violation of rule 3.190(i)(3). Thus, the testimony of Ms. Avsenew was not properly admitted against Avsenew at trial. Importantly, we note that the error here appears to have stemmed from sheer indifference to Ms. Avsenew’s inability to see Avsenew. (emphasis added)
A job well done by Gabe Ermine, Phyllis Cook, and Bob Wills, three lawyers protecting all of our constitutional rights. As far as Holmes is concerned, we hope Jack Tuter will strongly consider the “sheer indifference” tag by Florida’s highest court, as well as other instances from the past, if Holmes ever decides to request to return as a senior judge …