Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D21-2565 _____________________________ LEO L. BOATMAN, Petitioner, v. STATE OF FLORIDA, Respondent. _____________________________ Petition for Writ of Prohibition—Original Jurisdiction. January 19, 2022 PER CURIAM. DENIED. ROWE, C.J., and TANENBAUM, J., concur; MAKAR, J., concurs with opinion. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ MAKAR, J., concurring with opinion. Leo L. Boatman, an inmate serving a life sentence for murdering two college students in 2006, plus additional years of incarceration for murdering a cellmate and attempting to do so as to another, now faces the death penalty for charges of having participated in the 2019 killing of yet another inmate. Death penalty cases are notoriously cumbersome and factually intense, not only because they require evidence of the crime charged and a constitutionally adequate defense, but also because they require evidence of aggravating and mitigating factors for the jury’s consideration upon a finding of guilt; this latter phase of a capital case can eclipse the time and effort expended on the guilt phase. Like other complex cases, it is expected that unexpected twists and turns will occur, as well as unanticipated logistical issues. This case is no different but is markedly impacted because it arose in late 2019 just as the COVID-19 pandemic crept into Florida, multiplying the level of difficulty for both the defense and the prosecution in preparing their respective cases over the past two years, most of which was held at bay during 2020 through early 2021 due to the ongoing public health crisis. The trial judge, commendably, has kept the case moving along despite the many challenges to the discovery of evidence and the scheduling of depositions of numerous prison officials, law enforcement officers, inmates, experts, family members and lay witnesses, many in Florida but others spread about the country. Travel restrictions— as well as attrition of defense counsel and experts—have contributed to additional necessary delays in trial preparation. The prosecution, which itself has about sixty witnesses that may be deposed, and the defense together share a difficult undertaking to prepare for and stage a capital punishment trial. As such, it is not unexpected that continuances will be necessary and, indeed, a few have been sought, one of which led to this appellate proceeding challenging the trial judge’s refusal to recuse himself based on a claimed bias against the defense counsel’s efforts to seek more preparation time. Notably, the defense’s motion for a brief continuance was unopposed, but the trial judge’s commentary about candor and diligence in the pre- trial process was directed at the defense exclusively. He said, for 2 example, that the defense was “making it very difficult for [him] to discern between not actually being ready and what [was] starting to feel like sort of willfully putting [the defense] in a position to continue to state [the defense was] not ready” and that it was “hard for [him] to discern between legitimate not ready and engaging in a scheduling strategy that puts [the defense] in a position to continue to claim being not ready to maybe put [the defense] in the best position to continue, to get a continuance.” These comments do not appear to be deserved based on the record presented on appeal; defense counsel was merely seeking a reasonable amount of time to prepare a constitutionally adequate defense under the extraordinary circumstances of a pandemic. The comments raise the judicial eyebrow slightly, but not enough to establish a legally sufficient predisposition to warrant relief at this juncture. That’s because the “disqualification of a presiding trial judge is a serious and disruptive matter,” such that a petition “must be carefully reviewed to be certain that it is well-founded” under the circumstances. Cooper Tire & Rubber Co. v. Rodriguez, 997 So. 2d 1124, 1125 (Fla. 3d DCA 2008). Here, relief is not warranted, but the adage “haste makes waste” comes to mind: the judicial desire that a case be tried in a timely way is praiseworthy, but only if the level of due process required is met, thereby ensuring that whatever results in the trial court is upheld on appeal. _____________________________ Stacy A. Scott, Public Defender, and Kristofer W. Eisenmenger, Assistant Public Defender, Gainesville, for Petitioner. Ashley Moody, Attorney General, and Charlie Lee, Assistant Attorney General, Tallahassee, for Respondent. 3