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March 1, 2013
House panel takes up the death penalty

By Jan Pudlow
Senior Editor

Waiting three years for a committee to hear her bill to abolish the death penalty, Rep. Michelle Rehwinkel Vasilinda, D-Tallahassee, finally got that chance at the House Criminal Justice Subcommittee.

Part of her argument is that “civilized nations” have abolished the death penalty, and the lawyer and college professor listed 10 countries where the death penalty is no longer used: Canada, France, Germany, Ireland, Italy, Mexico, the Netherlands, Spain, Sweden, and the United Kingdom.

She then listed the 10 countries where the death penalty is permitted: Afghanistan, China, Cuba, Egypt, North Korea, Pakistan, Saudi Arabia, Somalia, Nigeria, Libya, and the United States.

After polite, but passionate, testimony pro and con — from a public defender, a college criminology professor, a rabbi, a murder victim’s mother all against the death penalty, and a state attorney, detailing gruesome facts of the most heinous murders, who said those killers deserve to die — HB 4005 failed 4-9 on February 7.

Rep. Matt Gaetz With that “threshold question” firmly answered, Chair Matt Gaetz, a Republican from Shalimar who practices civil law, made it clear that he hopes the United States continues to keep the death penalty, but wants to make Florida’s capital punishment system more efficient.

The death penalty reform working group of three lawyers — Gaetz, Rep. James Grant, R-Tampa, and Rep. Dave Kerner, D-Palm Springs — came up with a range of ideas:

* Taking death penalty rulemaking authority away from the Florida Supreme Court.

* Penalizing trial judges who don’t make a 90-day deadline on ruling on evidentiary hearings by losing a year of service in the Florida Retirement System, after hearing prior testimony from Assistant Attorney General Carolyn Snurkowski that it took one judge six years to rule.

* Reporting lawyers guilty of “ineffective assistance of counsel” to The Florida Bar for disciplinary action.

* Getting rid of private registry lawyers and expanding the proven expertise of Capital Collateral Review Representatives for the Northern District, as Florida has in the Middle and Southern districts.

As this News went to press, a finalized bill had not yet been filed.

While Rehwinkel Vasilinda argues that studies have shown the death penalty doesn’t deter crime and its high cost would be better spent putting 450 more law enforcement officers on the street to keep citizens safer, Gaetz counters: “I’d rather fix the system than surrender to the murderers. Taxpayers should not be forced to fund endless, insincere appeals.”

Gaetz points out that of 408 inmates currently on Florida’s death row, 141 have been there longer than 20 years, and each death penalty appeal costs more than $1 million.

After the first workshop on January 23, Gaetz said: “I think the Legislature is frustrated that our last round of death penalty reforms was not viewed well by the courts. So at some point, I think we have to evaluate whether or not to expire the jurisdiction of the court to hear postconviction appeals after some period of time.”

But two weeks later, Gaetz acknowledged his original bold idea to expire the Florida Supreme Court’s jurisdiction on postconviction appeals was a bad idea.

“And here’s why: If we were in fact to do this and expire the jurisdiction of the court after eight years, it is the view of some legal scholars that the Supreme Court of the United States would take great angst with such a move and would potentially invalidate the entire death penalty capital system in the state,” Gaetz explained.

Also dropped was a dual-track system to speed up appeals, by having the direct appeal to the Florida Supreme Court and collateral appeals begin and proceed at the same time, an overturned feature of the Death Penalty Reform Act of 2000.

“There are some inherent conflicts of interest in having a defendant accuse his lawyer of being ineffective, while simultaneously having that lawyer prosecute a direct appeal. I think it is a large and glaring conflict of interest,” Kerner said, adding he didn’t know of any state using such a system, and 37 states “affirmatively disallow” dual tracks.

Remaining up for debate is a proposed constitutional amendment that would provide that postconviction or collateral review of death penalty cases shall be governed exclusively by the Legislature through general law rather than by court rules.

Gaetz described this as “rulemaking reform to codify statutory timeframes.”

“The Legislature attempted to have statutory timeframes and hearings would have to be timely set, timely heard, and timely ruled, so those cases could move forward,” Gaetz said, referring to the Death Penalty Reform Act of 2000.

“Unfortunately, the Supreme Court ruled that was unconstitutional because the court believes that the issues relating to times and schedules and processes and procedures are solely in the jurisdiction of the court,” Gaetz said.

“So, the only way that our work group sees to repatriate rulemaking authority in the Legislature, the only way that we can have some control over timeframes to move these cases is to bring those rules that govern death penalty appeals processes into general law and to not leave it solely in the purview of the courts.”

In an interview before the meeting, Rep. Grant said: “It would take a lot for me to push to pull the rulemaking from the courts. Without having the data in front of me, I don’t know that I could say one way or the other. I think there’s still a lot of data to be collected pre-2000 and post-2000.”

Steve Metz, The Florida Bar’s chief legislative counsel, testified: “We believe that what makes the courts a co-equal independent branch of government is their ability to adopt their rules. . . .What I want you to consider is we don’t need to take away the rulemaking authority of the courts to get the kind of extra efficiencies we think we should have in the capital collateral process. At your prodding, since 2000, they made incredible reductions in the number of pending trials, at the lower court level on these postconviction motions.”

Ninth Circuit Chief Judge Belvin Perry, who has imposed eight death penalties that have all been affirmed, thanked Gaetz for ditching the proposal to take away the court’s jurisdiction after eight years, calling it “a recipe for disaster.”

As for trial judges taking too long to rule after evidentiary hearings, Perry said, “I’m not going to sit up here and try to defend the indefensible. But [former] Chief Justice Charles Canady, back in 2011, enacted an administrative order that basically requires each and every chief judge to really watch these cases and report quarterly. . . .

“I can tell you that three of my colleagues have had to talk to the chief justice. And when they finished that talk, those chief judges, they were a few pounds lighter.”

Timelines, Perry said, “are good and we do our dead-level best. The United States Supreme Court tells us that death is different. I chaired the Innocence Commission. And while I am a great advocate, anyone could tell you that we run cases through. To be honest with you, I don’t know how we do it. Because guess what? I’ll be frank with you: We do not have the resources for us to do what we need to do.

“You have to go back through and comb line-by-line in a [Fla. R. Crim. P.] 3.851 motion, the entire record. And guess what? If you don’t have a staff attorney to help you do that, what are you going to do? Are you going to do it in the daytime when you have a docket?”

In Osceola County, one division has 800 pending new cases, Perry said, and his circuit has only 14 staff attorneys to take care of 65 judges, and “despite everything that I do, we haven’t gotten new judges in six years.”

Perry also warned about making any dramatic changes to death penalty laws because, “we have a system that works, but it needs to be tweaked. . . . Once we starting changing, that is a trial judge’s nightmare. Once we do that, we involve some people we don’t want to be involved, and that’s the feds. And you have absolutely no control when it goes into that black hole.”

Rep. Kerner told the News: “If there are glaring issues, where we as the Legislature can make the process more efficient, fine. But I won’t do it at the expense of abrogating someone’s due process rights.”

After meeting with capital collateral counsel, Kerner said he learned: “This isn’t the foreclosure division. They are dealing with some very complex and constitutional issues of law. What is at stake is above and beyond. We are taking someone’s life. . . . Everything comes back to resources. . . .The process is sound. We could use more help, better help, more stable help.”

And Rep. Grant said he welcomes a total review of Florida’s death penalty process.

“We can always do it better. How do we ensure that this system carries out a sentence for somebody who has earned it and enables a truly due process for somebody who has not? That is my bigger picture. So when we open that statute book, if there’s not a way that readily gets us to where we do it better, then I don’t know that it makes sense to do a lot.”

While the House grapples with death penalty reform, including a threat to remove the Supreme Court’s rulemaking authority in death penalty cases, the Bar’s Board of Governors voted February 1 to urge “a comprehensive review of Florida’s entire death penalty process by all branches of government.”

[Revised: 04-15-2014]