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Florida justices under attack for ruling that turned on defense attorney's tactics

Published Sep. 29, 2012

The Republican Party of Florida says it is working to unseat three Florida Supreme Court justices partly because of one "egregious" opinion that said a murderer on death row should get a new trial.

But that opinion isn't the first complaint the party has made against Justices R. Fred Lewis, Barbara Pariente and Peggy Quince.

Three months before blasting the justices over the murder case and calling for their ouster, the party issued a pointed and partisan attack titled: "Remember the Democrat Justices of the Florida Supreme Court During Bush v. Gore?"

Reaching back to the famous presidential recount case, the Republican Party sent out a news release in June painting the same three as "clearly partisan Justices of the Florida Supreme Court who became, during their hearings in the recount matter, national embarrassments." This statement was prompted by an awkward mistake this year by a campaign counsel that led the three justices to file their campaign paperwork at the last possible minute.

The murder case "has absolutely nothing to do with this wrongheaded effort to remove sitting justices," says Dan Gelber, a former Democratic state senator who is working with the group Defend Justice from Politics, which supports the three. He believes "this is nothing more than an effort to give (Gov.) Rick Scott the ability to appoint justices and take control of the Supreme Court."

If the justices were removed, the governor would appoint their replacements from a list of people referred by the Judicial Nominating Commission.

Depending on one's point of view, the Florida Supreme Court's decision might or might not have been "egregious." The murder clearly was. And now, because of the campaign against the justices, the story of the case might soon be told in sound bites and campaign commercials.

The case began on Aug. 13, 1984, near Tallahassee, when a driver passed by the body of a young woman named Jeanne Bickner. She had been tied to a tree and set on fire.

Joe Elton Nixon, 23, was arrested after his brother turned him in. He confessed, in detail. He said he met Bickner, 38, at a mall and asked for help jump-starting his car. She purportedly agreed to give him a ride home. But on the road, he overpowered her. He put her in the trunk, drove her to a remote location, and tied her to a tree with jumper cables.

She pleaded for her life, but he killed her instead, according to court summaries of the case. Nixon also confessed to his brother and girlfriend, and police found plenty of other evidence tying him to the murder.

At trial, Nixon's attorney — an experienced and generally well-regarded assistant public defender named Michael Corin — made an unusual gambit. He told the jury: "In this case, there won't be any question, none whatsoever, that my client, Joe Elton Nixon, caused (her) Bickner's death."

The gamble was that admitting his client's guilt would produce some measure of sympathy in jurors, and perhaps persuade them not to recommend the death penalty.

The tactic didn't work. Nixon was not only convicted, he also was sentenced to death.

Then the appellate courts got into the business of whether Corin's tactic was proper. The Florida Supreme Court ruled in 2003 that it was not. This is the case now being cited against the three justices.

Corin explained his strategy to Nixon, but Nixon was erratic and unresponsive, and not even present during much of the trial. He never explicitly agreed to this strategy, or disagreed with it, according to court records.

The Florida Supreme Court said in its 2003 opinion that a client's "silent acquiescence" to an attorney's strategy just isn't good enough. The defendant has to explicitly agree to such a strategy, the court said.

Pariente concurred in the 5-2 opinion. She was appointed to the Supreme Court by Democratic Gov. Lawton Chiles. Quince also concurred. She was appointed jointly by Chiles and former Republican Gov. Jeb Bush.

Lewis, also appointed by Chiles, also concurred, but made it clear he really didn't want to. He wrote an opinion of his own in the case saying "the decision and result here are, in my view, both legally and logically incorrect."

He said he believed "the defendant here intentionally disrupted his original trial proceedings" and that by granting a new trial, "this Court is rewarding an intentionally disruptive defendant."

But Lewis said there were legal reasons that forced him to agree with the majority, which he explained in more detail in his opinion.

The case eventually went to the U.S. Supreme Court, which in 2004 unanimously reversed the decision of Florida's high court. The majority opinion was written by Ruth Bader Ginsburg, an appointee of President Bill Clinton.

She noted Nixon's bizarre behavior at trial: "On the second day of jury selection, Nixon pulled off his clothing, demanded a black judge and lawyer, refused to be escorted into the courtroom, and threatened to force the guards to shoot him."

The court unanimously ruled that if a defendant is not responding to an attorney's strategy, which the attorney believes is best, then the attorney's "strategic choice is not impeded by any blanket rule demanding the defendant's explicit consent."

Attorney Eric Freedman, who assisted in Nixon's appeal and who teaches at Hofstra University's law school, declined to comment on how this case made it into Florida politics. But he said there was nothing unusual about how the case was handled.

Others have pointed out that the Florida Supreme Court issued its opinion in 2003 and that there was little if any mention of it during the next retention vote for Lewis, Pariente and Quince — which was in 2006.

But now, nine years after the opinion and six after the last retention vote, it has become a political issue.

Times researcher Natalie Watson contributed to this report. Curtis Krueger can be reached at (727) 893-8232 or ckrueger@tampabay.com. Follow him on Twitter at @ckruegertimes.

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