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April 15, 2013
Lawmakers to work with the courts on death penalty

By Jan Pudlow
Senior Editor

The Supreme Court has heard “loud and clear” the concerns of the Legislature about murderers who languish on death row for decades, so Rep. Matt Gaetz agreed to temporarily postpone a vote on a proposed constitutional amendment that would take away the court’s rulemaking authority in death penalty appeals.

“I have really cool news to report on this joint resolution,” Gaetz, a Republican attorney from Ft. Walton Beach, told the House Justice Appropriations Subcommittee on April 4.

Rep. Gaetz “We always know that constitutional amendments ought to be saved only when they are absolutely necessary. Here’s the great news: Largely as a result of the work of Rep [Dave] Kerner and also Rep. [James] Grant, we have an agreement with the judicial branch. And that agreement was codified when the chief justice issued an administrative order creating this task force to do the provisions of the bill that are procedural in nature through the court, cooperatively, allowing them to take procedure and us to take substance. And so with that, I would ask that we temporarily postpone the joint resolution, because I think we will be able to do this without a constitutional amendment.”

Without the constitutional vehicle to drive it, the “Timely Justice Act of 2013” (CS/HB 7083) — aimed to speed up appeals and curb successive motions — passed 8-3 on its second committee stop.

However, in the Senate on April 1, despite pleas to wait for a new group created March 22 by Chief Justice Ricky Polston to do its work to make death penalty appeals more efficient, the Senate Judiciary Committee voted 6-3 on SJR 1740 to take rulemaking authority away from the courts on post-conviction death penalty litigation and give it to the Legislature.

“We’re going to continue having discussions with the court and with the Bar, but I want to reserve the right to go to our constituents and ask them what they think about what we are trying to do,” said Sen. Joe Negron, R-Palm City, chair of the Appropriations Committee, and the sponsor of the joint resolution for a proposed constitutional amendment to drive death penalty reforms aimed to end what Negron called “an abuse of the system.”

The Senate Judiciary Committee on April 1 also voted 7-2 for SB 1750 (similar to CS/HB 7083) that proposes many ways to speed up death penalty appeals. (See “Panel IDs areas to speed death penalty appeals” and “Supreme Court creates committee to study the state’s death penalty process” in the April 1 News.)

Rep. Negron “I’m a due process person. I believe in people’s right to access to courts,” Negron said at the April 1 meeting. “The problem we have under the current system is there is an abuse of the system. And instead of having justice, we’re having a mockery of justice, because there are all of these petitions that are filed, all of these successive motions, where instead of raising the issues that should be raised in the initial pleading, they stack them so that they are not raised in a timely manner.”

On April 4, the Senate Appropriations Subcommittee on Criminal and Civil Justice also passed CS/SB 1750 with a 10-2 vote, but without a chance to vote on the proposed constitutional amendment underpinning the bill.

Sen. Christopher Smith, D-Ft. Lauderdale, an attorney, voted, “no,” saying the Legislature should wait for the newly appointed chief justice’s task force, chaired by Third District Court of Appeal Judge Kevin Emas, to do its work.

“These are learned attorneys and learned judges looking at their procedures. We are legislators. We come from diverse backgrounds. We are experts in other things. . . . I’d much rather defer to the courts to come up with their rules before we act,” Smith said.

“I understand the impetus for this is to maybe nudge them a bit. Trust me, I’d love to nudge them. . . . But we should tread very lightly when it comes to court rules and procedures, because this thing is so intricate.”

That caused Sen. Charlie Dean, R-Inverness, to comment: “As a lay person, how long is enough to wait?”

In response to concerns from Sen. Darren Soto, D-Kissimmee, an attorney, that the bill may not “comport with the separation of powers,” Negron said: “I’m not going to put my name on a bill that’s unconstitutional. That’s why there is a constitutional amendment that passed out of Judiciary that accompanies this. It didn’t happen to get sent to this committee. It got sent to another committee [Appropriations]. I’m going to follow the constitution. The people have a right to amend the constitution if they choose to.

“I’m confident we can continue to work with the Bar and the court. . . . We don’t want to get into running the judicial branch, and they shouldn’t run the legislative branch, and they don’t.”

Praise for the judicial and legislative branches working together for a common goal came from Steve Metz, the Bar’s chief legislative counsel.

“Instead of having a big constitutional battle, the court has heard loud and clear the concerns the Legislature has over these cases,” Metz told the House Justice Appropriations Subcommittee on April 4, pointing out the recent creation of the chief justice’s task force.

“We are hoping at the next committee stop, when you see this bill, you will see even a better product that takes out of the bill things that are procedural in nature and should be the subject of rulemaking by the court, and leave for you the other substantive issues that are in the bill,” Metz said.

That caused Rep. Darryl Rouson, the Democratic ranking member and attorney in St. Petersburg, to say: “It sounds to me like you are walking a fine line. Do you endorse what the representative has done or do you believe, in your professionalism, that the five-person task force is best situated to come back with recommendations on how we should address death penalty reform, as opposed to this product that is here today?”

Metz answered: “It is a fine line, but it’s not that fine a line. . . . Now remember, there was a proposed constitutional amendment that would take the rulemaking authority away from the court. And Rep. Gaetz postponed that, because I believe he wants to give the task force, through the rulemaking process, a venue to look at his ideas and decide which ones of those we can really do in the court that will help us move these cases along. . . .

“I wouldn’t stand up here and applaud this effort if I didn’t think it was really a bona fide, good faith effort, where the Legislature and the courts are recognizing their proper roles in trying to achieve the same goal.”

Rouson voted against it, saying, “Rep. Gaetz, we all know your passion for this process. But this product, I think Ray Charles could see that it is defective right now. It’s not complete right now.”

Rep. Kerner, a Democratic West Palm Beach attorney who worked on the proposed legislation, said: “It’s kind of an awkward position we’re in, because we are discussing legislation that isn’t quite before us yet. But I can tell you I’ve sat in the room with Rep. Gaetz. I’ve sat in the room with the other stakeholders that include judges that have testified before prior committees that there is a need for reform in the death penalty arena. And I listen very closely when the judiciary talks. In fact, [House Criminal Justice Subcommittee] Chairman Gaetz and I were far apart when we entered this process. I voted down on the initial amendment dealing with the constitutional changes. But I can tell you as we’ve moved forward, we’ve included everybody in this process. . . .

“As far as the substantive product that we are going to put forward, it’s going to be very effective and also protect the rights of those who have been sentenced to death.”

Sen. Joyner At the Senate Judiciary Committee, Sen. Arthenia Joyner, D-Tampa, an attorney, asked Negron: “Doesn’t. . . . this high bar against consideration of successive motions fly in the face of the Innocence Commission’s recommendations and the numerous exonerations that have come to light in recent years?”

Negron responded: “I sat on that Innocence Commission, and I couldn’t even get passed out of the Legislature a bill that said you had to give notice before you give a lineup that the person might not be in the lineup. So I’m with you fighting on those issues.

“I think if you look at the actual language in the bill. . . it says [post-conviction motions] are barred unless you file a successive one within 90 days of when you discover facts. Anything you file that has a colorable claim of innocence, and you have evidence, you can put forward.

“I’m in agreement with you. I don’t want to convict innocent people. And innocent people have been convicted in this state. And we want to do everything we can to stop it. But people shouldn’t be languishing on death row for 15 and 20 years, while one motion after another is filed. That’s not justice.”

The first to bring up the new court-appointed work group was Ron Bilbao, public policy legislative associate for the American Civil Liberties Union of Florida, who told the Senate Judiciary Committee April 1: “We believe in the separation of powers, and we should keep the court as independent as possible from the Legislature, in this instance, and let them do the study. I think you should wait on the court.”

But Sen. Jack Latvala, R-Clearwater, made it clear he is tired of waiting on the court.

“This is ironic. I started out the day this morning with a slow walk to the Supreme Court. I thought I was going to a 9 o’clock hearing this morning on the death warrant that the governor recently signed on the murder of a little 10-year-old girl in my district in 1980,” Latvala said, referring to the Larry Eugene Mann case.

“And why I walked slow was not really being too interested in having to face her mother and dad today, who I thought was going to be there. As it turns out, it got canceled and nobody told me. But 33 years ago, this young lady was murdered and her murderer, convicted in 1981, is still alive today. If this bill would help do something about that, you know, I’m all for it, Sen. Negron. And I appreciate you doing it.”

[Revised: 10-26-2016]