A court-imposed deadline to launch the final round of appeals for condemned prison guard killer William Van Poyck came and went Friday without any papers being filed.
Instead, attorneys who were appointed under protest Monday to represent the 58-year-old who is to be executed June 12 for the 1987 shooting death of Glades Correctional Institution guard Fred Griffis, sent an unusual — if not unheard of — notice to the Florida Supreme Court.
Titled “Notice of Inability Ethically to Satisfy the Lower Court’s and This Court’s Schedule,” the attorneys said they were unable to comply with the tight court deadlines without violating their professional obligation to give Van Poyck the vigorous representation he deserves.
While the attorneys could face contempt charges for failing to do what Palm Beach County Circuit Court Charles Burton ordered them to do, they also are getting some unexpected help from some of the state’s top lawyers.
In a separate motion, the 1,700-member Florida Association of Criminal Defense Lawyers and revered former state legislator and law school dean Sandy D’Alemberte asked the high court for permission to file briefs on the attorneys’ behalf.
“It’s very unusual,” Gainesville attorney Sonya Rudenstine said of the organization’s request. “But we think this is an unusual case.”
D’Alemberte, a former president and dean of Florida State University law school and one of Florida’s most prominent attorneys, agreed.
He said he decided he wanted to file a friend of the court brief after learning that the three attorneys were appointed even though they said they lacked the time, resources and sufficient knowledge of the case to competently represent Van Poyck. Having represented four death row inmates, he said he knows how difficult, time consuming and emotionally draining it is to prepare appeals after a death warrant has been signed.
To tap three attorneys, who claim they are unqualified, is unconscionable, he said.
Rudenstine, who has also represented inmates after their warrants were signed, compared it to asking a general practitioner to perform heart surgery. “It’s a very dangerous situation,” she said.
In their motions filed Friday, Jeffrey Davis, a Wisconsin civil litigator, and Mark Olive, a noted Tallahassee death penalty defense attorney, said they are working around the clock to prepare Van Poyck’s defense. They are researching case law, reviewing court records and interviewing people who know about the murder outside a West Palm Beach dermatologist’s office, they said. Griffis was shot, and another guard injured, when Van Poyck and fellow ex-con Frank Valdes ambushed the prison van in a failed attempt to free convicted murderer James O’Brien, who was being taken to the doctor for skin cancer treatment. Valdes was killed in 1999 by prison guards.
Despite their ongoing efforts, Olive and Davis said, they need more time. “Counsel has found it impossible ethically to meet the court-imposed deadline,” they wrote in identical motions. Gerald Bettman, a Jacksonville attorney, this week filed an appeal of Burton’s order, appointing him to represent Van Poyck.
The notices filed with the state supreme court Friday capped a week of efforts on the part of all three attorneys to persuade Burton and the high court to either appoint more qualified lawyers or to delay Van Poyck’s execution by 60 days to give them the time they need.
At the same time, state prosecutors have scoffed at their claims. In motions filed this week, Assistant Attorney General Celia Terenzio pointed out that Davis has represented Van Poyck in 10 of his 12 appeals. Olive has represented him in one.
Calling Davis’ arguments “illogical and in bad faith,” she urged the Florida Supreme Court to force the three lawyers to remain on the case. “This motion,” she said, referring to Davis’ request to withdraw, “is at best a veiled ‘threat’ to this court that unless a stay is granted, ‘I will seek to withdraw.’ ”
As for Olive, she said, he was appointed to offer his considerable expertise to Davis and Bettman, who has represented Van Poyck in three of his appeals. As an experienced capital case litigator, he should be up to the task, she said.
But, all three counter, like roughly 10 other lawyers whose names appear on Van Poyck’s appeals, they were never appointed to represent Van Poyck. Davis said he signed briefs that were prepared by the Volunteer Lawyers Resource Center, which helped prepare death penalty appeals until its federal funding dried up in the mid-1990s. Bettman said he represented Van Poyck on specific issues but doesn’t know the entire scope of the case. Olive said his involvement was limited to walking to the courthouse to deliver papers that were prepared by other lawyers.
D’Alemberte said the case underscores the serious problems with the state’s death penalty process, which has recently sped up with five inmates under active signed death warrants. Two of the executions have been stayed by federal courts.
Over the years, get-tough-on-crime legislators gutted state agencies that once kept track of death penalty cases.
“There’s an awful lot of chaos in the system and it’s unnecessary chaos,” he said. “My hope is that people will get tired of all this chaos we’re talking about and do something about it.”