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August 15, 2014
Death sentence reviews are automatic, even if it’s against the client’s wishes

An attorney representing a death-sentenced inmate may not withdraw from that representation, even if that’s the wish of the client, according to the Florida Supreme Court.

The court, in a 4-3 ruling, said the constitutional and statutory mandate for a direct appeal to the Supreme Court and the court’s requirement to see that death penalties are not “arbitrarily or capriciously” carried out overcame the client’s wishes.

Dissenters argued nothing outweighs an attorney’s obligation to abide by the client’s wishes, even if the client wishes to waive appeals and hurry execution.

The case involves James Robertson, who was sentenced to death for killing another inmate. Robertson was convicted and sought to dismiss his public defender for the required automatic appeal to the Supreme Court and argue on his own behalf that the execution should be carried out.

In the per curiam ruling, the majority found the Florida Constitution requires the court to hear direct appeals in all death sentences, and the Legislature included a similar mandate in F.S. §921.141(4).

“Thus our mandatory review of both the validity of the judgment and the propriety of the death sentence is ‘automatic’ and does not depend upon acquiescence of the death-sentenced defendant,” the opinion said.

Further, both state and federal rulings require that each death sentence be reviewed to ensure that it meets constitutional standards.

“The only way for this court to ensure that a death sentence is not arbitrarily or capriciously imposed is to provide meaningful appellate review of each death sentence,” the opinion said.

It went on to quote the U.S. Supreme Court in Gregg v. Georgia, 428 U.S. 153 (1976), that the new death penalty law in that state was constitutional because, “The new sentencing procedures require that the state supreme court review every death sentence to determine whether it was imposed under the influence of passion, prejudice, or any other arbitrary factor, whether the evidence supports the findings of a statutory aggravating circumstance, and ‘[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.’”

The court also noted in earlier cases it had declined to remove counsel for inmates who sought to end appeals and have their death sentences carried out, and said there was no reason to recede from those cases.

“In sum, we discern no ethical violation in requiring current counsel to continue to prosecute this appeal fully for the benefit of the court in meeting its statutory and constitutional duties,” the opinion said.

Chief Justice Jorge Labarga and Justices Barbara Pariente, Fred Lewis, and James Perry concurred. Pariente also wrote a concurring opinion, which was joined by Labarga and Perry. Justice Peggy Quince dissented without an opinion, while Justice Charles Canady dissented with an opinion that was joined by Justice Ricky Polston.

Pariente pointed to the constitutional and statutory requirements for an appeal as overriding the normal condition of the defendant’s right to decide whether to take an appeal. Further, in any appeal, it is not the client’s decision on which issues to raise, she said.

“[A] capital defendant cannot choose in the first instance whether to pursue a direct appeal,” Pariente wrote. “There is no ‘fundamental decision’ over which the client exercises the ‘ultimate authority’ implicated in this situation. In addition . . . the defendant does not have the right to determine which issues to raise during the direct appeal. Finally, this particular defendant is represented by an attorney who ‘could credibly raise’ legal issues that may cast doubt on whether the death penalty was fairly, reliably, and uniformly imposed in this case.”

She noted the defendant can still file a pro se statement explaining why he does not want an appeal.

Canady argued that the majority fails to show any justification for not following Florida Bar Rule 4-1.2(a) that “a lawyer shall abide by a client’s decisions concerning the objectives of representation.”

The client has the power to waive the constitutional and statutory mandates for a direct appeal in death penalty cases, he wrote, adding, “An automatic appeal is not equivalent to a non-waivable appeal.”

Canady concluded, “Respect for the individual dignity of the defendant requires respect for his decision of whether to pursue an appeal and for his right to a lawyer who will not work against him.”

He said he would have referred the issue back to the trial court “to determine whether Mr. Robertson has made a knowing, intelligent, and voluntary waiver of his right of appeal.”

The court acted July 10 in Robertson v. Florida, case no. SC13-443.

[Revised: 03-21-2015]