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Only Florida's governors can say how they pick execution order

Sarah Lundy | Sentinel Staff Writer

8:37 PM EDT, May 19, 2009

Last month, Florida Gov. Charlie Crist decided it was time for John Marek and David Johnston to die.

Crist picked out Marek and Johnston from nearly two dozen death-row inmates whose appeals are exhausted. Exactly how he came to pick those two prisoners -- and why -- is a subject only the governor can answer.

He's not talking. And neither are former governors who have made similar decisions since Florida reinstated its death penalty in 1976.

"I don't know how they decide," said Marek's lawyer, Marty McClain, a veteran death-row attorney who has defended hundreds of inmates. "Over the years I have wanted to know the answer to that question."

He's not alone. Johnston's attorney, Todd Doss, has defended at least two dozen death-row inmates, and he asks this question in his latest effort to stop the inmate's execution.

"Mercy was extended to these other inmates and they were allowed to continue to live," he wrote in a 30-page motion filed in Orange circuit court. "The process can only be described as a lottery."

Florida gives the decision to initiate the state's ultimate punishment to the governor, who sets his own criteria in choosing the next to enter the death chamber. Other states, such as Texas, Georgia, Mississippi and California, place the responsibility on their court systems.

There are 392 prisoners on death row. Since 1979, Florida has executed 67 inmates, including two women, for their crimes. And over the years the selection of these condemned has remained a mystery.

"It's the epitome of how arbitrary it is," said Elisabeth Semel, director of the Death Penalty Clinic at the University of California- Berkeley.

Chiles wanted to know case specifics

Former Gov. Lawton Chiles focused on where the cases stood on appeals, said Tallahassee attorney Tom Crapps, who monitored death penalty cases for Chiles from 1996-98.

If a case reached the point that all state and federal appeals were exhausted, Crapps would prepare it for the governor. He'd speak with the prisoner's attorney, asking about any other details the governor should know.

"I would read all the opinions written by the court," Crapps said.

Crapps would discuss the case with other attorneys in the governor's office. Then he'd meet with Chiles.

"It wasn't an easy process for anyone," he said.

"He would grill me about the case," Crapps recalled. "He wanted to know about the facts, the witnesses and evidence and issues raised on appeal."

During Chiles' eight-year- term, 18 prisoners -- including one woman -- were executed.

Jeb Bush leaned toward volunteers

As governor, Jeb Bush signed more than two dozen death warrants. Of those, 21 people were executed.

Defense attorneys say Bush seemed to lean toward volunteers, inmates who stopped appealing their cases. Killer Paul Hill, who was convicted to killing an abortion doctor and a clinic escort in Pensacola in 1994, volunteered for his September 2003 execution. Two years later, Glen Ocha raised his hand to be executed for killing a Kissimmee woman in 1999.

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