Court opens door to new death penalty hearings

Dara Kam, News Service of Florida

In a pair of major rulings about the state’s embattled death penalty, the Florida Supreme Court on Thursday cleared the way for about half of the state’s Death Row inmates to seek new sentencing proceedings based on a seminal U.S. Supreme Court decision early this year.

But while the Florida justices granted relief for approximately 55 percent of the state’s 386 condemned inmates, a majority of the court also lifted a stay of execution in the case of James Asay — a signal that deaths by lethal injections could soon be back on track after a year-long hiatus.

Thursday’s highly anticipated opinions focused on the application of a January U.S. Supreme Court decision, in a case known as Hurst v. Florida, that struck down as unconstitutional the state’s death penalty sentencing system.

That ruling, premised on a 2002 case known as Ring v. Arizona, found that Florida’s system of allowing judges, instead of juries, to find the facts necessary to impose the death penalty was an unconstitutional violation of the Sixth Amendment right to trial by jury.

Florida lawmakers hurriedly rewrote the law this year after the Hurst ruling, requiring jurors to unanimously find that at least one aggravating factor exists before a defendant can be eligible for a death sentence and requiring at least 10 jurors to recommend death for the sentence to be imposed.

But the Florida Supreme Court in October struck down part of the new law, finding that it was unconstitutional because it did not require unanimous jury recommendations for death sentences.

In one of Thursday’s rulings, a majority of the Florida court decided that the Hurst ruling should apply to all cases that came after the Ring decision. It noted that 14 years separated those two U.S. Supreme Court decisions.

“In this instance … the interests of finality must yield to fundamental fairness,” the majority wrote in the case of John Mosley, convicted of murdering his girlfriend and their infant child in 2004. “Because Florida’s capital sentencing statute has essentially been unconstitutional since Ring in 2002, fairness strongly favors applying Hurst, retroactively to that time.”

The Mosley decision also makes clear that, because the court will analyze each case individually, not all capital defendants who are eligible under Hurst will ultimately receive the opportunity for a new sentence. Defendants who waived their right to a jury trial would also not be eligible for new sentencing hearings.

Retroactive application of the Hurst ruling is critical “to prevent a violation of the fundamental and critically important right to a trial by jury,” the majority wrote in Thursday’s 83-page Mosley opinion.

But Justice Charles Canady, in a dissent joined by Justice Ricky Polston, warned about the effects on the court system of allowing new sentencing hearings in death-penalty cases going back to the Ring ruling in 2002.

“The difficulties involved in conducting new penalty phase proceedings for such a large number of cases involving murders committed over such an extended period of time truly beggars description,” Canady wrote. “The impact on the system of justice — courts, prosecutors, and public defenders — will be enormous.”

In Asay’s case, the court ruled that Hurst should not apply retroactively to cases finalized before the Ring decision because, in part, of the impact on the administration of justice.

“Penalty phase resentencing is a time-intensive proceeding that requires significant preparation and discovery, death-qualifying a jury, and generally, a multi-day trial,” the majority wrote. “While some of the prior witnesses’ statements could be admitted based on the transcripts from the prior sentencing, the jury’s ability to weigh the strength of those witnesses would clearly be impacted. Finally there is an important consideration regarding the impact a new sentencing proceeding would have on the victims’ families and their need for finality.”

All but two of the justices — Canady and Peggy Quince  — authored separate opinions in the Asay case. Justices Barbara Pariente and James E.C. Perry concurred in part but offered dissenting opinions in which they said that all of the state’s Death Row inmates — including those in cases before Ring — should be eligible for resentencing.

Justice R. Fred Lewis concurred in the result but wrote that the Hurst ruling should be extended retroactively to all capital defendants who raised the issue of unanimity, even before Ring was decided.

In her dissenting opinion, Pariente objected that “the requirement of jury unanimity in the ultimate decision as to whether a defendant is sentenced to death is of such fundamental significance that fairness requires” retroactive application.

“The majority’s conclusion results in an unintended arbitrariness as to who receives relief depending on when the defendant was sentenced or, in some cases, resentenced,” she wrote. “To avoid such arbitrariness and to ensure uniformity and fundamental fairness in Florida’s capital sentencing, our opinion in Hurst should be applied retroactively to all death sentences.”

Perry went even further.

“The line drawn by the majority is arbitrary and cannot withstand scrutiny under the Eighth Amendment because it creates an arbitrary application of law to two groups of similarly situated persons,” Perry, who is forced to retire at the end of this year, wrote. “Coupled with Florida’s troubled history in applying the death penalty in a discriminatory manner, I believe that such an application is unconstitutional.”

Attorney Martin McClain, who took over Asay’s case in January after Gov. Rick Scott signed a death warrant ordering Asay’s execution, said the court’s opinion in his client’s case leaves unanswered questions. Thursday’s ruling came 10 months after the court heard arguments in the Asay’s case.

“Obviously, the issue is complex, as is reflected in the opinions,” McClain told The News Service of Florida. “All that’s really established today is that post-Ring people have a better argument for relief than pre-Ring people.”

Scott spokeswoman Jackie Schutz said the governor’s office is “reviewing the ruling.” But, according to McClain, Scott cannot reschedule an execution date for the convicted killer because the court’s ruling Thursday left open the possibility of a request for a rehearing.

Thursday’s decisions evoked mixed reactions from defense lawyers, with many of them echoing Perry’s concerns.

“Certainly, a fair number of my clients will be entitled to relief. However, the court’s opinions do really raise an arbitrary concern that similarly situated defendants are being treated differently under the law. That’s unfair and a violation of the Eighth Amendment,” lawyer Maria DeLiberato said.

Karen Gottlieb, co-director of the Florida Center for Capital Representation at Florida International University’s College of Law, predicted that the decisions regarding retroactivity will spur more litigation.

“The defendants whose cases were final prior to Ring, their sentencing proceedings were no less unconstitutional than those sentencing proceedings that were not final at the time of Ring and those that came after Ring,” Gottlieb said. “The bottom line is we are talking about unconstitutional sentencing proceedings, no less unconstitutional prior to Ring than post-Ring. They were always unconstitutional.”

* * *

Faith Community Responses to the Death Penalty


Inspired by a suggestion and some ground work laid by Rev. Emory Hingst, several TCADP members put the finishing touches on a booklet of  statements on the death penalty from approximately twenty different faiths.  Nancy Smith Fichter and Robert Fichter worked to get as many statements as possible and to obtain the most current available.  We printed 350 booklets and are making sure that every member of the Florida Legislature, Governor Rick Scott, and Attorney General Pam Bondi, all have a copy.  Click the link to download a copy of this booklet published by TCADP as part of our lobbying effort.

Faith Comments 2-4-13



The Death Penalty: Evolving Issues in Florida

The Florida State University Center for the Advancement of Human Rights & the American Bar Association present:The Death Penalty: Evolving Issues in Florida

A two-hour forum that will include perspective and commentary from FSU President Emeritus, former Dean of the College of Law and former American Bar Association President Talbot “Sandy” D’Alemberte; former Florida Supreme Court Justice Raoul Cantero; 2nd Judicial Circuit Judge Janet Ferris (retired); 18th Judicial Circuit Judge O.H. Eaton (retired) and former member of the ABA Florida Death Penalty Assessment Team; Harry Shorstein, former Fourth Continue reading ‘The Death Penalty: Evolving Issues in Florida’ »

Florida’s Catholic bishops repeated their plea for Gov. Rick Scott ….

Travis Pillow writes in the Florida Independent that Florida’s Catholic bishops repeated their plea for Gov. Rick Scott to call off the execution of Manuel Valle, the subject of Scott’s first death warrant.

Death Penalty, Still Racist and Arbitrary

Op-Ed Contributor, New York Times

Published: July 8, 2011, Houston
LAST week was the 35th anniversary of the return of the American death penalty. It remains as racist and as random as ever.
Several years after the death penalty was reinstated in 1976, a University of Iowa law professor, David C. Baldus (who died last month), along with two colleagues, published a study examining more than 2,000 homicides that took place in Georgia beginning in 1972. They found that black defendants were 1.7 times more likely to receive the death penalty than white defendants and that murderers of white victims were 4.3 times more likely to be sentenced to death than those who killed blacks. Continue reading ‘Death Penalty, Still Racist and Arbitrary’ »

Commission on Capital Cases gets put to sleep ….


A commission established by the Florida Legislature almost 15 years ago to monitor the administration of justice in death penalty post-conviction proceedings has itself been sentenced to death.

The unintended consequences may be significant.

The Commission on Capital Cases, a relatively obscure entity, was abolished earlier this month purportedly to “save” $400,000 in related costs. Among its tasks was to receive public input, and advise and make recommendations to the governor, Legislature and Florida Supreme Court.

The current slate of commissioners, a Republican and a Democrat from the Senate and the House, a retired District Court of Appeal judge and a former county court judge, seemed poised to play a more active role than their immediate predecessors.

However, the Florida Senate adopted a relatively low-profile and late-emerging House conforming bill during the final hours of the 2011 regular legislative session without deliberation.

Death Penalty Information Center report

On December 21, the Death Penalty Information Center released its latest report, “The Death Penalty in 2010: Year End Report,” on statistics and trends in capital punishment in the past year.  The report noted there was a 12% decrease in executions in 2010 compared to 2009 and a more than 50% drop compared to 1999. DPIC projected that the number of new death sentences will be 114 for 2010, near last year’s number of 112, which was the lowest number since the death penalty was reinstated in 1976. Death sentences declined in all four regions of the country over the past ten years, with a 50 percent decrease nationwide when the current decade is compared to the 1990s.  Only 12 states carried out executions in 2010, mostly in the South, and only seven states carried out more than one execution. Texas led the country with 17 executions, but that was a significant drop from last year.  The number of new death sentences in Texas this year was 8, a dramatic decline from 1999 when 48 people were sentenced to death.  Since the death penalty was reinstated in 1976, 82% of the executions have been in the South. California has not had an execution in almost 5 years, and the same is true for North Carolina, Maryland, Pennsylvania, and many other states that rarely carry out the death penalty.  “Whether it’s concerns about the high costs of the death penalty at a time when budgets are being slashed, the risks of executing the innocent, unfairness, or other reasons, the nation continued to move away from the death penalty in 2010,” said Richard Dieter, DPIC’s Executive Director and the report’s author.

Practicing Medicine on Death Row

Thursday 09 December 2010

by: Robert Wilbur, t r u t h o u t | News Analysis

Practicing Medicine on Death Row ( Edited: Jared
Rodriguez / t r u t h o u t)

Execution by lethal injection has shone a harsh light on the complicity
of health professionals – physicians, nurses and paramedics – in
carrying out capital punishment. In a 2001 survey in the prestigious
journal, Archives of Internal Medicine, an astonishing 41 percent of
physicians surveyed said that they would assist or even carry out an
execution by lethal injection and there is little evidence that the
percentage has changed significantly since then. Deborah W. Denno JD,
PhD, a leading scholar of death penalty litigation at the Fordham
University School of Law in New York City, remarked that physician
participation in executions is more prevalent than one might think,
although exact numbers are not available because of the secrecy
surrounding executions. And this does not even include the nurses and
paramedics (also known as Emergency Medical Technicians or EMTs) who
head up the execution teams in many states. Interestingly, the
leadership of several major organizations have taken a more enlightened
view on executions than many of their members.
Continue reading ‘Practicing Medicine on Death Row’ »

Restoring fairness to the death penalty

Daniel Ruth St Petersburg Times Correspondent
Restoring fairness to the death penalty,
In Print: Tuesday, November 30, 2010
Imagine lying on a gurney, a needle inserted in your arm. The clock ticks toward the appointed hour. In minutes you’ll be — dead.
The only thing standing between your last breath and a reprieve is the U.S. Supreme Court. Maybe you are guilty of your crimes. Then again, maybe you’re not. And maybe nobody cares.
At a moment like this, that person facing society’s ultimate sanction should have at the very least an expectation he will get a fair shake from the judicial system. After all, once the switch gets thrown, there are no mulligans on death row. Continue reading ‘Restoring fairness to the death penalty’ »

State must act to fix flaws in the death penalty

ABA Forum in Tallahassee with the Florida State University Center for the Advancement of Human Rights.

My View essay in October 30th, 2010 edition Tallahassee, Democrat

Raoul G. Cantero III and Mark R. Schlakman

our years ago, the American Bar Association released a comprehen­sive Florida Death Penalty Assessment Team report that raised serious concerns about the state’s death penalty process. Since then, with few exceptions, state government has done little to remedy problems identified in the report.

To conduct the assessment, the ABA assembled a diverse and highly qualified eight member team to work in collaboration with its Washington, D.C. based staff.

The objective was to ensure that prosecutorial, defense, judicial, academic and other relevant perspectives were adequately represented when assessing Florida’s death penalty process.

The team resolved at the outset that its findings and recommendations had to be unanimous to be included in the report. Put simply, the report’s findings and recommendations were intended to improve the administration of justice in Florida and promote fairness and accuracy in our criminal-justice system without regard to ones views on capital punishment.

Among the key findings was that death penalty defen­dants often receive abysmal legal representation.

The report makes sever­al related recommendations, including reinstating the Capital Collateral Regional Counsel office in the north­ern region of Florida (it was disbanded within the context of a still ongoing pilot project that relies on private registry counsel). These private law­yers generally don’t specialize in capital defense work nor do they benefit from the supervision and support available to CCRC lawyers in central and south Florida, and they typically receive only nominal compensation for their efforts. Continue reading ‘State must act to fix flaws in the death penalty’ »