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April 1, 2013
Supreme Court creates committee to study the state’s death penalty process

By Jan Pudlow
Senior Editor

The Florida Supreme Court created a special group to make recommendations to improve the overall efficiency of the capital post-conviction process, as urged by The Florida Bar and favored by some legislators who do not want to take rulemaking authority away from the court.

The Capital Postconviction Proceedings Subcommittee of the Criminal Court Steering Committee will be chaired by Third District Court of Appeal Judge Kevin Emas. The adminstrative order, signed March 22 by Chief Justice Ricky Polston, directs the subcommittee to seek input from stakeholders — including the Criminal Procedure Rules Committee, the Capital Collateral Regional Counsel, and the Office of the Attorney General — and mandates a deadline of September 27 for the group to file its petition with the court.

The order followed action by the House Criminal Justice Subcommittee that passed a joint resolution March 5 that would shift power to the Legislature over procedural rules in post-conviction death penalty litigation.

Rep. Matt Gaetz Chair Matt Gaetz, a Republican lawyer from Ft. Walton Beach, pushed for the proposed constitutional amendment to drive his death penalty reforms intended to speed up appeals. He said he wished there was another way.

“Now, I understand the concerns that have been raised,” Gaetz said at the March 5 meeting. “Frankly, they have been raised by Rep. [Dave] Kerner and Rep. [James] Grant, my partners in this process, who have said, ‘Well, gee, Gaetz, do we really have to take this rulemaking authority back?’ That ought to always make us uncomfortable whenever we shift any sort of constitutional balance of power. But I come before you humbly to say that I don’t see another vehicle.”

HB 7081 passed 8 to 5. At the same meeting, the subcommittee earlier voted 9 to 4 to pass the “Timely Justice Act of 2013,” a 64-page bill (HB 7083) that Gaetz said would provide better representation for people accused of capital crimes and would “end the gamesmanship that seems so inherent in having endless and insincere appeals.” (See story here.) (Companion bills in the Senate — SJR 1740 and SB 1750 — were filed by Sen. Joe Negron, R-Palm City.)

“We understand your concern and appreciate your interest in making certain the post-conviction review of death penalty cases is both efficient and fair,” Bar President Gwynne Young wrote to Gaetz in a February 15 letter. “We believe the best approach toward meeting those goals is to avoid yet another constitutional argument over court rulemaking and to concentrate, instead, on a cooperative yet comprehensive effort among all three branches of government for a careful and deliberate study of our state’s post-conviction processes and proceedings.”

Steve Metz, the Bar’s chief legislative counsel, testified at the subcommittee that there is a “history of the Legislature and the Supreme Court recognizing a problem and working together.”

In the late ’90s, Metz recounted, “People were really upset about the length of time that people were on death row. And the Supreme Court had commissioned a study group called the Morris Commission. They looked at a number of substantial changes in the capital collateral time frame, and how to make them better and faster, with more accountability. They were in the process of adopting those as new rules of criminal procedure when the Legislature, also responding to people not happy with the amount of time people were on death row, passed the Death Penalty Reform Act of 2000.

“That act, in the Allen v. Butterworth case you’ve heard about, was ruled unconstitutional because of the invasion of the court’s rulemaking authority. I’ve just got to point out: That very same day in April 2001, when the court issued its opinion overturning the Death Penalty Reform Act, it adopted new rules of criminal procedure. And it was very deferential to the Legislature. . . . And many of the provisions in the Death Penalty Reform Act are now currently court rules.”

Metz also stressed statistics from the Florida Supreme Court showing that from January 1, 2001, to January 1, 2013, there has been a 72 percent decrease in the number of post-conviction proceedings in the trial courts, and an 11 percent decrease in the average number of days of post-conviction proceedings pending in the trial court. Progress in moving death cases through the trial courts was boosted by an aggressive case management system implemented by then Chief Justice Charles Canady.

That caused Rep. Mike Clelland, a Democratic attorney from Lake Mary, to say during debate: “I’m a little bit lost here, because I have the data from The Florida Bar, which suggests, to use the governor’s terms, ‘It’s working.’ So what I want to do is avoid a constitutional battle across the street. . . . And I fear that is where it is going to end up. I can’t support that in good conscience.”

Rep. Grant, R-Tampa, a lawyer working on the proposed legislation, voted in support, but said he hoped the constitutional amendment route could be avoided.

“The likelihood of reforms taking effect in improving the system, if that truly is our goal, we have a higher likelihood of getting there if we can reach some sort of agreement with the court, better than the speculative process of a joint resolution on the ballot.”

Grant’s hope, he said, was to “put all the stakeholders in a room” and “hammer out specifics and talk about exactly what would make this process more efficient and what assurances we have as a legislative body that the reform is in fact intended to be long-standing within the court’s rulemaking.”

Opposing both the proposed reforms and the vehicle for carrying them to fruition is Rep. Kionne McGhee, D-Miami, a former prosecutor who said he “lost both my father and brother to murder.” He said he can’t forget about the wrongfully convicted who once faced the death sentence, and he solemnly read out their names.

“Florida right now leads the nation with 24 exonerations,” McGhee said. “I am a proponent of moving this system forward, but I wonder what would have happened if individuals didn’t have the time frame in place to ensure that they would have a shot at life, even though they were wrongfully convicted. One life taken because we want to push this system forward before vetting out all possible angles, it is just too much for one man, and one legislator, and for any one state to have to live with, knowing they have affected the lives of many.”

But Rep. Gayle Harrell, R-Stuart, a health information technology consultant, focused on the families of murder victims, and urged lawmakers to bring faster finality to death penalties. After a dozen years after the Legislature’s first attempt at speeding up death penalty appeals, Harrell said, she would have expected better statistics than more than 404 death row inmates, with 94 death row inmates who have already exhausted all state and federal appeals and await a warrant to be signed.

“Certainly, avoiding a constitutional issue and having to go on the ballot is advisable,” Harrell said. “However, I think we need to put the stake in the ground and say we need to move forward. I totally support this effort.”

Rep. Dave Hood, a Republican attorney from Daytona Beach, said: “I think we ought to pass the bill, so that we signal the idea that we ought to sit down with the court and try to work it out before the bill ends up in its final form in front of the session.”

But Kerner, D-Palm Springs, a lawyer who helped draft the proposed reform legislation and voted to support it, voted “nay” on this vehicle to achieve those proposed changes.

“There is a need for reform and move our efforts forward to make the system better,” Kerner said. “But I’ve also heard Judge [Belvin] Perry say that portions of this effort call into question the very foundation of our democracy. And I do not take those words lightly. That we endeavor to take the rulemaking authority away from the Supreme Court is something that I cannot support in the future. If it gets to the floor, I will stand up and voice, for what it’s worth, a very sincere and loud opposition to those efforts.”

Other members of the new court subcommittee are 13th Circuit Judge E. Lamar Battles, Justice Jorge Labarga, Sixth Circuit Judge Nancy Ley, Ninth Circuit Chief Judge Belvin Perry, 12th Circuit Judge Debra Riva, and First Circuit Judge William Stone.

[Revised: 08-11-2014]