Photo via Florida Department of Corrections
In a highly unusual move, Florida Supreme Court Chief Justice Jorge Labarga has ordered an investigation of a death penalty lawyer who has repeatedly missed critical deadlines, was involved in a capital case in which roach-infested boxes of documents were destroyed by rain and who is currently representing two inmates who are trying to fire her.
Labarga ordered the probe of Fort Lauderdale lawyer Mary Catherine Bonner "pursuant to the Court's authority to monitor the representation of capital defendants to ensure that the defendants receive quality representation" on Nov. 8, seven months after prominent death-penalty lawyer Martin McClain wrote to the court outlining concerns about Bonner.
Bonner, included in a registry of lawyers appointed by the court to represent Florida Death Row inmates in post-conviction appeals, was rebuked by a federal judge several years ago for failing on two separate occasions to meet a one-year deadline to file habeas corpus petitions. Such federal appeals provide inmates a last chance to have their convictions reviewed on a variety of grounds.
In this month's administrative order, Labarga appointed 3rd District Court of Appeal Judge Kevin Emas as the referee in the Bonner investigation and named Belvin Perry —- a former 9th Judicial Circuit chief judge who presided over the Casey Anthony murder trial —- to serve as special counsel to the referee.
Labarga gave Emas 90 days to complete the inquiry and file a report on Bonner.
"The referee shall make findings of fact and recommend any necessary remedial action, including the removal of Mary Catherine Bonner from the registry for postconviction capital attorneys, if appropriate," the two-page order said.
Bonner did not respond to phone calls and emails seeking comment.
Numerous death-penalty legal experts told The News Service of Florida that Labarga's order appeared to be the first of its kind.
Florida's death penalty has been under scrutiny for nearly a year, since the U.S. Supreme Court, in a case known as Hurst v. Florida, issued a ruling in January that struck down the state's capital sentencing system as unconstitutional because it gave too much power to judges, instead of juries.
State lawmakers hurriedly passed a new law intended to fix the deficiency, but the Florida Supreme Court last month overturned that law because it did not require unanimous jury recommendations for the death penalty to be imposed.
Labarga ordered the Bonner investigation after McClain sent a letter April 4 to the clerk of the Florida Supreme Court raising alarms about two Death Row inmates, Alphonso Cave and Paul William Scott, whom Bonner represents in state court. Cave and Scott have independently asked the court to dismiss Bonner from their cases; both men alleged that their lawyer went for years without contacting them. McClain represented Scott for a period over a decade ago, as well as Cave's co-defendant, who has since been executed.
McClain also wrote about Bonner's court-appointed representation of two Death Row inmates —- including Mark James Asay, whose pending execution was put on hold by the Florida Supreme Court earlier this year. McClain now represents the two Death Row inmates.
In 2009, U.S. District Judge Timothy Corrigan harshly criticized Bonner for filing federal appeals in the cases of Asay and William Greg Thomas more than 200 days after a one-year deadline had run out.
Bonner blamed the delays in part on health problems both she and her husband had undergone, but the Jacksonville judge was not appeased.
"The terms 'bad faith' or 'dishonesty' capture Ms. Bonner's conduct and are the type of egregious conduct that rises well above professional negligence or even gross negligence," Corrigan wrote of Bonner's handling of Asay's petitions in 2009.
Bonner's delays in filing the federal appeals prompted Corrigan to grant "equitable tolling" in both cases, allowing the missed deadlines to be ignored.
The Florida Attorney General's office, which represents the state in capital cases, opposed giving the inmates more time to file the federal appeals but maintained that Bonner's conduct warranted sanctions.
Even so, the state opposes allowing inmates whom Bonner currently represents to fire her.
In March, Cave sent a hand-written letter to the Supreme Court requesting that Bonner be terminated as his attorney, saying he had not seen her in four years and she had not responded to his letters and calls.
Cave —- whom Bonner has represented for nearly half of the more than three decades he has spent on Death Row —- was concerned about the impact of the Hurst ruling on his case. That decision prompted the state court to put the scheduled executions of Asay and Cary Michael Lambrix on hold indefinitely.
In April, Bonner asked the state court to keep her on as Cave's lawyer, saying she "took a very bad fall" and broke her shoulder. Bonner went on to describe in detail problems she encountered during her recovery, including "a terrible adverse reaction to pain medication" and lengthy waits at the hospital where she was being treated.
Bonner —- who has a clean record with The Florida Bar —- also wrote to Cave, asking him to keep her on as his attorney.
"I care about your fate and will vigorously litigate on your behalf," she wrote to the inmate on April 3.
In a hand-written response to the court dated April 11, Cave wrote that he simply wanted a lawyer who would file the appropriate documents on his behalf.
"It is unfortunate and just not right that I had to write this Honorable Court to get my lawyer to correspond with me," Cave, 57, wrote.
Cave's letter is the latest document posted in his case on the Florida Supreme Court website.
Scott also asked the court to remove Bonner as his lawyer in state court. After the court refused that request, Scott appealed. That appeal is pending, according to the state court website.
Asay's case became the focus of attention earlier this year.
McClain took over Asay's case in January, shortly after Gov. Rick Scott set a March execution date for the convicted double murderer.
After being sentenced to die, Asay went for a decade without legal representation, and almost all of the paper records involving his case went missing or were destroyed.
McClain described difficulties he encountered trying to retrieve documents from Bonner, who had served as Asay's lawyer in the federal appeals.
"Despite the exigencies created by Mr. Asay's pending death warrant, she repeatedly delayed ascertaining and advising what files she had. About a week into the warrant, she had four mold and insect infested boxes delivered to my office. One of the boxes was largely empty. All of the material in the boxes had been exposed to water and was ruined. The prevalence of mold made the boxes a health hazard," McClain wrote to Florida Supreme Court Clerk John Tomasino on April 4.
Bonner later delivered more boxes to McClain "after they had been left outside in a driving rain storm," he continued.
The boxes were "completely waterlogged" and "were literally disintegrating as they were carried to my office," he wrote.
Much of the material in the boxes was unrelated to Asay's case, according to McClain's letter.