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April 1, 2013
Panel IDs areas to speed death penalty appeals

By Jan Pudlow
Senior Editor

If Florida really wants to get serious about speeding up death penalty executions, more resources must be pumped into the criminal justice system.

That undercurrent flowed during the March 5 meeting of the House Criminal Justice Subcommittee that voted 9-4 to pass the “Timely Justice Act of 2013” (HB 7083) that details seven major areas aimed to make death penalty appeals more efficient.

Proposed reforms include creating a mechanism to report judges who take more than three years to rule to the speaker of the House for possible impeachment proceedings, reporting lawyers deemed “ineffective” to The Florida Bar for disciplinary actions and banning them from taking capital cases for five years, doing away with publicly funded lawyers in clemency proceedings, and re-establishing the northern office of the Capital Collateral Regional Counsel.

“There are 94 individuals that sit on Florida’s death row today that have exhausted all of their state and federal appeals. We need to look at the overall system as to why those 94 individuals are there,” testified Ninth Circuit Chief Judge Belvin Perry.

“If government decided tomorrow to sign death warrants at a clip of three or four per month on those 94 individuals, the system could not handle it. The attorney general does not have the necessary personnel. The CCRC do not have the necessary personnel. Trial courts don’t have the necessary personnel, nor does the Florida Supreme Court have the necessary personnel,” Perry said.

Rep. James Grant, R-Tampa, one of the drafters of the proposed legislation, said: “Regardless of who is in the plaza level offices today, it is not as if 94 warrants could be signed within a week or 94 within a month, but there are resources in the system that need to be utilized in order for the process to move forward.”

Judge Perry: “You are absolutely correct. There are resources that we currently need, and we also need to beef up the resources that we currently have.”

Rep. Mike Clelland, a Democratic attorney from Lake Mary, said during debate: “I am going to have to oppose this bill. . . . At least in so far as Judge Perry’s testimony was concerned, it seems to be more about resources than streamlining procedures.”

Tenth Circuit Public Defender Rex Dimmig, representing the Florida Public Defender Association, came to the Capitol to plead for help.

“We are drowning under the weight of this. It’s money. It’s manpower,” he said.

One big waste of resources, Dimmig said, is preparing for the death penalty phase of a trial — where a defendant’s whole life must be examined to present mitigating factors to argue his life is spared — only to have the state waive the death penalty just before trial.

“But the public defender or any defense counsel has, by that point, expended tens of thousands of dollars investigating for a penalty phase that will never take place. We believe that is one area where significant reform can be taken,” Dimmig said.

Chair Matt Gaetz, R-Ft. Walton Beach, the driving force behind the proposed legislation, agreed: “The more resources we can apply, the greater the opportunity to achieve the results we seek.”

But beyond resources, Gaetz argued the process needs to be changed.

“Ninety-four folks are ‘warrant ripe.’ When I learned this, I thought, by golly, if I was governor, I’d go sign them all,” Gaetz said.

“Why do we have these folks sitting around if they have truly exhausted their appeals? I did some research. In fact, Gov. Martinez had a similar approach and signed about every death warrant that he could. What’s interesting is it actually didn’t move the process along any faster. Because we have this paradigm in place now where you can have these endless successive motions, and you don’t have to bring claims in a timely way.

“My belief is if we can get to a post-conviction process that works, that has time frames, that has reforms to ineffective assistance of counsel, that has changes to the conflict of interest process, we can actually resolve matters faster. And then I think we will empower future governors to actually go in and rid of the backlog when folks are ‘warrant ripe.’”

Gaetz detailed the seven main features of the “Timely Justice Act of 2013”:

* Re-establish the Capital Collateral Representative North. “They are actually the most effective lawyers in our system to get these cases moving, because it is all they do: work on death penalty cases.”

* Reform the process by which a defendant alleges conflict with counsel, by raising the standard and requiring the judge to rule within 10 days. And if it is found that someone made a frivolous claim of conflict, “they will not have state resources dedicated to their defense in the future, because they shouldn’t benefit from gaming the system. I think that alone will curb a lot of the inconsequential litigation that occurs in post-conviction practice.”

* Reform the motion practice by requiring they be “fully pled” in the initial post-conviction motion. Subsequent motions would be barred where the issues could have been raised at the time of the initial pleading. “The second requirement is that someone has to actually bring their case and make their allegations within 90 days when they either knew or should have known the facts giving rise to the motion.” The practice of moving for relief based on ineffective assistance of post-conviction counsel would be banned. And the court can deny motions that are “facially invalid” without an evidentiary hearing.

* Beef up reporting requirements. The Supreme Court would be required to notify the speaker of the House of cases that have been in post-conviction litigation for longer than three years, “because it is the constitutional authority of the House of Representatives exclusively to bring impeachment charges, if necessary. Now, I’m sure there are plenty of circumstances where it might be reasonable to have these cases litigated for more than three years. But we at the House at least need a watch list. I think back to Ms. [Carolyn] Snurkowski’s [deputy attorney general handling death penalty appeals] testimony to our committee, that there was an instance of a judge who was just personally opposed to the death penalty, had a hearing, and then didn’t issue an order on the hearing for six years. If that were to occur in the future, we in the House need a mechanism to know who that judge is and perhaps question whether they ought to still be on the bench.”

The other reporting requirement deals with lawyers who have been deemed ineffective, by requiring the court to report to The Florida Bar to determine if there needs to be disciplinary proceedings. It would require the Bar to make periodic reports to the speaker of the House and Senate president about such cases.

* Weed out “insincere” appeals based on allegations of ineffective assistance of counsel. “Certainly, there are sincere appeals that deal with ineffective assistance of counsel. But there are plenty which are not. One of the troubling practices is lawyers, believing that they are zealously representing their clients, show up before the court and say, ‘That’s right. I was ineffective. Here’s my confession.’ You can imagine how difficult it would be for the state to then prevail on that motion. But then that lawyer is able to walk into the next room and pick up the next file and go represent the next person who has their life on the line. I think that’s rather silly. In our bill, we say if you have been deemed ineffective by a court, then you have to go through a five-year period where you don’t take these cases anymore.”

* A variety of time frames to codify existing rules and one that would require the Supreme Court to rule in 180 days. “When there is a post-conviction motion, and it has been determined by the court, let’s say it has been denied, and the accused wants to appeal that post-conviction motion, we would give the Supreme Court no more than 180 days to rule. We think that is sufficient: six months to be able to brief and schedule oral argument. These are the most important cases that we have — when somebody’s life is on the line — and the Supreme Court should prioritize them.”

* Eliminate publicly financed clemency counsel. “The clemency process is an important one, but I think if we have more of an investment on the front end — with the CCRC North to provide better lawyers, then clemency lawyers on the back end won’t be as necessary.”

“There was talk about the Furman case and death is different,” Gaetz said. “I agree. My question is this: Why does Florida have to be so different? Over 400 people on death row and 155 of them have been there longer than 20 years. The only state that has more folks on death row longer than Florida is California. So while death is different, we ought to have resources to ensure due process. We ought to have better lawyers on the front end litigating these cases. I don’t believe that we have to have such a convoluted system that we are unable to realize justice in a timely fashion.”

[Revised: 04-22-2014]