Legislators receive a death penalty education
Legislators receive a death penalty education
Senior Editor
Legislators went to law school when the House Judiciary Committee and Criminal Justice Subcommittee met, learning about the ramifications of U.S. and Florida Supreme Court opinions about the death penalty and what they should do to fix the statute.
Their teacher was Stetson University College of Law Professor Michael P. Allen, who had two former students on the committee.
“Very bizarre split” and “truly strange” is how Allen described the Florida Supreme Court’s December 22 decisions in Asay and Mosley to split death row inmates into two groups and allow new sentencing hearings only for those whose cases were final after Ring v. Arizona was final on June 24, 2002 (see January 15 Bar News).The court was reacting to how to answer the retroactivity issue after the 2016 U.S. Supreme Court Hurst decision declared Florida’s death penalty sentencing scheme unconstitutional.
“Retroactivity is always a very difficult question. It’s like trying to hold onto a slippery otter. You think you’ve got it and it squeezes from your hand. It’s really a nuanced question,” Allen said.
“I’m not talking about whether the rule in Hurst should be retroactive or not. But what I will say quite clearly is that the Florida Supreme Court’s decision to make the rule retroactive to some people but not others finds absolutely no support in anything I’m aware of anywhere in the country. It really is like being pregnant. You either are pregnant or you are not. You are not in the middle.
“And a constitutional rule is either retroactive to people or it’s not. Because the result of this is truly strange. Imagine if your conviction was final on direct review on June 23, 2002. Now the rule doesn’t apply to you. If your conviction happened to have been final the next day, it now does. “
Already, petitions have been filed attacking that decision, Neal Dupree, director of Capital Collateral Regional Counsel — South, told the subcommittee on January 11.
“I have never seen the concept of partial retroactivity. It’s unusual to say the least.. . . I just don’t know that it really exists. And I can tell you, as of today, I know our offices combined, we’ve filed about 150 petitions in circuit courts and the Florida Supreme Court attacking, addressing obviously harmless error, No. 1, but also addressing the Asay-type cases where they say it’s not retroactive to our clients,” said Dupree, adding that he expects
litigation on those issues to go on for “a year or two.”
What about the legal limbo of currently pending capital prosecutions in Florida? In January 2016, the U.S.S.C. found Florida’s death sentencing process an unconstitutional violation of Sixth Amendment right to trial by jury because judges rather than juries find facts necessary to impose the death penalty. The Legislature reacted by amending the statute in March 2016, to require a 10-2 verdict from the jury in the penalty phase. In an October 14, 2016, decision in Hurst v. Florida, the Florida Supreme Court held the Legislature did not go far enough in repairing Florida’s death penalty scheme, and the court responded by requiring unanimous jury votes to recommend the ultimate penalty.
In the Perry case, also decided on October 14, 2016, the Florida Supreme Court addressed the legislative fix and interpreted that unanimity is required. In the last sentence of Perry, the opinion said: “The statute cannot be applied to pending prosecutions.”
“Can we seek the death penalty?” Allen asked.
“Well, technically, the answer to that question is: We don’t know yet, because the Florida Supreme Court hasn’t told us. But they made a mistake last week that gives us a pretty clear indication of what that answer is going to be. The State of Florida [Attorney General] had asked for a clarification in Perry, about what did the Supreme Court mean. Did it mean that the whole thing can’t be done or just that the unanimity had to be required for that last step?
“One trial judge in Orlando said, ‘Listen, there’s no procedure by which we can impose this because the statute says 10 to 2 and that’s not unanimous.’
“Another trial judge from the Sixth Judicial Circuit said, ‘No, you know what we can do? I can fix that. I’ll just tell the jury they have to be unanimous.’ And the defendant in that case said, ‘You can’t do that because that’s not what the statute says.’
“Both of these cases made their way to the Supreme Court of Florida, and they have not yet issued their decision,” Allen continued. “However, the Supreme Court mistakenly issued its decision in Perry, saying we are not going to grant the state’s motion for clarification about our order. Justice Polston dissented, and in his dissent he refers to what are going to be the majority decisions in those two cases, which clearly suggest that the Florida Supreme Court is not going to allow these prosecutions to go forward.
“Now, maybe they changed their mind. The Supreme Court immediately withdrew that opinion, saying, ‘We made a mistake that it was released too early.’ But I think it’s pretty clear that what the Supreme Court is going to say is that the statute cannot be applied as written, because it says 10 to 2, and therefore there isn’t a current procedure to seek this penalty.”
While the law hangs in limbo, the current situation, the professor described, are first-degree murder defendants rushing to have their cases tried and asking for speedy trials.
Rep. Thad Altman, R-Indialantic, who was a Florida senator from 2008-16, reminded his House colleagues that the Senate did try to fix the statute by requiring unanimity, but the House would not go along.
“I filed the bill in the Senate and we did pretty good,” Altman said, “We made it through two or three committee stops for unanimity, and for unanimity across the board in different findings. I think it was a fix that fixed the problem. We listened to some of the brightest legal minds in the state. Had we done that. . . would we be facing this problem today, of having to retry these cases and not having a death penalty?”
Tenth Circuit Public Defender Rex Dimmig answered: “We would not have the problem in cases going forward, because based upon the Florida Supreme Court’s ruling in Hurst v. State, what the Senate had proposed last year would have been found truly constitutional. We would still have the issue of retroactive application.”
Fifth Circuit State Attorney Brad King, who opposed last year’s unanimity fix, said: “One of the things that typically falls to the wayside when we talk about capital litigation, we tend to talk about it in professorial, legalistic terms. But in real life, it means something different. Sometimes, you can only know that difference if you have. . . been a state attorney and been to scenes, and seen the hole that little girl was buried in after she was put in a plastic bag, after she was raped, and then she was buried and left to suffocate to death. Then I think the question of the death penalty becomes a little more real.”
Detailing two other gruesome cases, King said: “In all of those cases, the unanimity requirement would have precluded death for those three defendants.”
King agreed the simple fix is unanimity.
“But is the simple fix the right fix for the State of Florida?” he said. “I would suggest to you, maybe not.. . .
“The more difficult solution is to go back and consider rewriting our death penalty altogether and conform it directly to what the U.S.S.C. has always said are two parts: eligibility, that is, does the person qualify for death?. . . Then completely separate and apart handle selectivity, what they call whether the penalty should actually be imposed. And they do not require the same set of rules.”
Rep. James “J.W.” Grant, R-Tampa, said: “Regardless of how real or sad of a story we want to tell, we are subject to the legalistic interpreters of what the court will do to us. If you were going to go on the offense and say, ‘Here are things that would comprise maybe a safe strategy,’ if the objective was to prevent being in this position again, what would those things be?”
Allen answered: “If the most important goal of the Legislature is to ensure that there is a functioning system by which to impose the punishment that the Supreme Court agrees still exists, then the path of least resistance that is highly likely to pass constitutional muster. . . is you take that one portion of the statute that says 10 to 2 and make it unanimous. And you’ve touched nothing else. . . Now, if your actual goal was something different, and your ultimate goal, like Mr. King said, is a different goal, then you can make other changes. Recognizing that the more changes you make, the more delay is going to be done. Because people like Mr. Dimmig and Mr. Dupree are going to do their job.
“The safe course is easy, even if it might not serve every goal.”
