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May 15, 2013
Death penalty bill sent to the governor

By Mark D. Killian
Managing Editor

The Legislature has sent the governor a bill aimed at speeding up the death penalty appeals process.

The Timely Justice Act of 2013 (HB 7083):

* Reestablishes a Capital Collateral Regional Counsel (CCRC) office for the northern part of the state;

* Revises the experience requirements for attorneys with whom the CCRC may contract to provide capital collateral representation;

Sen. Joe Negron * Requires the Supreme Court to report annually to the Legislature on the status of each capital case in which a post-conviction action has been filed that has been continuously pending for more than three years, including the name of the judge involved in the case;

* Directs the courts, under certain conditions, to furnish to The Florida Bar findings that an attorney provided deficient representation;

* Prohibits an attorney from representing a person charged with a capital offense or a person sentenced to death in a post-conviction proceeding for five years if, in two separate instances, a court in a capital post-conviction proceeding determined that the attorney provided constitutionally deficient representation and relief was granted; and

* Establishes a process for the clerk of the Supreme Court to notify the governor when certain post-conviction activity is completed and for the governor to issue a warrant.

Gone from the original measure was a provision that would have proposed a constitutional amendment to strip the Florida Supreme Court of its rulemaking authority over capital collateral death penalty cases. The proposed amendment was eliminated after Chief Justice Ricky Polston created a special Capital Post-conviction Proceedings Subcommittee to review the death penalty procedural rules process and to make recommendations to the court by September.

“We have worked with the courts and also with The Florida Bar to streamline rules in a way that protects the integrity of the Supreme Court’s ability to make the rules of court,” said Senate sponsor Sen. Joe Negron, R-Palm City.

Negron also said $50,000 has been included in the budget to create a database to track death row cases, noting where each case is in the system and what legal issues are pending “so that the public can follow these cases and those who are interested can make sure justice is being done.”

“I believe this is very finely tuned to say here are some new timelines, here is what the court is going to do, and here is what the governor is going to do,” Negron said.

The House approved the measure 84-34 and the Senate 28-10.

Currently, there are 406 people on death row in Florida — more than any other state except California. Of those, 154 have been in custody for more than 20 years and 10 have been on death row for more than 35 years.

Opponents of the bill worry that accelerating the appeals process may limit the ability of the truly innocent to prove their case before the sentence is carried out.

Rep. Matt Gaetz But House Sponsor Rep. Matt Gaetz, R-Shalimar, said the bill will only speed up the execution of those whose guilt is not in question.

“The measure prohibits lawyers for death row inmates from using certain defenses in capital cases, requires that the North Florida region be allowed to hire full-time lawyers to provide defense in capital cases, and it puts penalties on lawyers who have been accused of being ineffective counsel,” said Gaetz, adding that it is “wrong and a blight” on the justice system to have people languishing on death row for decades when there is no dispute about their guilt.

Rep. James Waldman, D-Coconut Creek, said while there are good parts to the bill — such as the recreation of CCRC North — he is concerned that reducing the time for appeals may harm the innocent and end up creating more delay, since once the bill becomes law death warrants will have to be signed within six months for many now on death row.

“That will be quite taxing on our system, and I believe will lead to more delays,” Waldman said.

While Rep. Michelle Rehwinkel Vasilinda, D-Tallahassee, said she was “appreciative” the death penalty was being discussed, she too could not support the bill over concerns that speeding the process might put innocent people at risk of being executed.

“Florida has been involved in more exonerations, in other words, has put more people on death row than any other state and has been mistaken about it,” said Rehwinkel Vasilinda, who filed a bill that was defeated earlier in committee that would have eliminated the death penalty in Florida.

“The question that I have is swift justice fair justice?” Sen. Arthenia Joyner, D-Tampa, asked during Senate debate on the bill.

But Gaetz said the bill in no way prejudices somebody’s due process rights.

“If there is any evidence that needs to be tested, we should exhaust it,” Gaetz said. “If there is any DNA [evidence], we should find it. If there are witnesses, we should bring them forward to a court. But when that has concluded, when that is over, when we have tested all the evidence, heard from all the witnesses, and we are left with just the frivolous motions, I think we have a responsibility to act.”

Gaetz said it is unacceptable that 155 people have been on death row in Florida for longer than 20 years. Gaetz hopes the bill will reduce the average time of those on Florida’s death row from 14 to seven years.

“The Timely Justice Act will improve Florida’s system by limiting frivolous appeals and ensuring that we have appropriate due process and also appropriate and timely justice,” Gaetz said.

Rep. Larry Metz, R-Groveland, said the bill is not about guilt or innocence, but how the state proceeds after guilt has been established.

“It talks about the collateral attacks that occur, which really is about gamesmanship that revictimizes the survivors of the murder victims,” Metz said. “This has happened time and time again in the system, and this bill, if anything, is overdue, not premature. What it will end up doing is holding attorneys in the system, and judges, accountable to their oaths of office as officers of the court to uphold the rule of law.”

Rep. J.W. Grant, R-Tampa, said worries about mistakenly executing the innocent are overblown.

“All we are doing when it comes to the appellate process is assuring that attorneys and litigants don’t abuse the system,” Grant said. “Is it so crazy to suggest that somebody who has been properly convicted and sentenced to death should not be able to abuse judicial resources and taxpayer dollars? We are not speeding up the death penalty. We are slowing down fraud.”

Rep. Dave Kerner, D-Palm Springs, who worked on the legislation with Gaetz, said the effective administration of the death penalty should be a bipartisan issue, and he’s glad the Legislature agreed to work in cooperation with the judiciary to evaluate the procedural rulemaking process.

[Revised: 04-14-2014]